Humaun Md v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

CAMP 308/2021

[2022] HKCA 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 308 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2572 OF 2018)

________________________

________________________

Before:  Hon Kwan VP and Chu JA in Court

Date of Written Submission:  20 June 2022

Date of Judgment:  7 October 2022

____________________

J U D G M E N T

____________________

Hon Kwan VP (handing down the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 18 March 2022 ([2022] HKCA 388). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 28 May 2020 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim[1].

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 June 2022 that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 20 June 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Bangladesh. He had previously made a torture claim on 9 April 2008 which was withdrawn and he requested to return to Bangladesh. He was deported from Hong Kong on 29 January 2010. On 14 February 2016, he entered Hong Kong from the Mainland illegally and submitted a non-refoulement claim on 5 March 2016. The basis of the applicant’s claim is that he would be ill-treated or killed by the Awami League because he had switched to an opposition political party, the Bangladesh National Party.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 2 July 2021[2].

5.On 2 August 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 18 March 2022 as he failed to show any prospect of success in his intended appeal and the intended judicial review.

Grounds of appeal

6.In the Notice of Motion, the applicant stated that he was not totally satisfied, but did not mention any specific grounds of appeal.

7.In his written submissions, he reiterated the procedural history of his case and the problem he faced in Bangladesh. He further stated that he did not get justice so he wished that the Court of Final Appeal would give him justice.

Analysis and disposition

8.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.The applicant was late for nearly 7 weeks in filing the Notice of Motion. He did not provide any explanation for the delay. Thus, there is no good ground for the court to grant extension of time for the applicant to file his Notice of Motion. For this reason alone, this application should be dismissed.

11.In any event, the applicant did not give any particulars or evidence to support his submissions that he did not get justice. Although he asserted in his written submissions that he is applying for all asylum seekers as all asylum seekers are facing the same problem, he has failed to identify any specific question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.For the above reasons, we dismiss the Notice of Motion filed on 6 June 2022 for leave to appeal to the Court of Final Appeal.

The Applicant, acting in person