Miah Muhammad Shohag v. Torture Claims Appeal Board

CACV 437/2021

[2022] HKCA 1508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2021

(ON APPEAL FROM HCAL NO 2198 OF 2018)

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Before:  Hon Kwan VP and Barma JA in Court

Date of Judgment:  12 October 2022

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s application by Notice of Motion filed on 17 February 2022 for leave to appeal to the Court of Final Appeal against the against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 7 January 2022 ([2022] HKCA 6). The Court of Appeal rejected the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 3 September 2021 ([2021] HKCFI 2633) refusing to grant extension of time for the applicant to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 17 February 2022 that the applicant shall lodge written submissions on or before 3 March 2022. It was further directed that the present Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 14 days after the resumption of court business. On 20 May 2022, the deadline for lodging written submissions was further extended to 2 June 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.In the Notice of Motion filed on 17 February 2022, the applicant stated the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration (“the Director”).

(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing the application for judicial review.

(3)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.

(4)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(5)  The judge did not apply the law properly and there is procedural unfairness.

(6)  The applicant’s life is in danger in his country. He will be killed or harmed if he returns to his country.

Analysis and disposition

4.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).

5.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.

6.The applicant was late for nearly 2 weeks in filing his Notice of Motion. He explained in his affirmation he was late because he was unaware of the rules regarding the time limit and was unrepresented. These are not good grounds to justify his delay.

7.In any event, the applicant’s grounds in the present application are just bare assertions without particulars or evidence in support. He failed to show that the Court of Appeal was wrong in dismissing his appeal. Besides, he has failed to identify any 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).

8.For the above reasons, we dismiss the Notice of Motion filed on 17 February 2022.

The Applicant (Appellant), acting in person