Md Ziban v. Torture Claims Appeal Board

CAMP 387/2021

[2022] HKCA 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 387 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2751 OF 2018)

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Before:  Hon Kwan VP and Chow JA in Court

Date of Written Submission:  5 July 2022

Date of Judgment:  21 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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 22 April 2022 ([2022] HKCA 515). The Court of Appeal dismissed the applicant’s summons for extension of time to appeal against the decision of Deputy High Court Judge To on 6 July 2021 ([2021] HKCFI 1970) refusing to grant leave 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 1 June 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 5 July 2022. Having considered his 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 arrived in Hong Kong illegally on 15 September 2012 and was arrested by the police on 22 December 2012. He lodged his non-refoulement claim on 5 February 2013 on the basis he would be harmed or killed by members of the Awami League as he was a participant with the Bangladesh Nationalist 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 DHCJ K W Lung on 30 August 2021[1].

5.The applicant renewed his application to the Court of Appeal for extension of time to appeal on 13 September 2021. This application was dismissed by the Court of Appeal on 22 April 2022 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The applicant filed a Notice of Motion on 1 June 2022 for leave to appeal to the Court of Final Appeal and stated the following grounds of appeal:

(1)  The judge was 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 judge was wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director in refusing his 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.

7.His written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

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. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

9.Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.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.

11.The applicant was late for 12 days in filing the Notice of Motion. He explained that he was unaware of the rules regarding the time limit and was unrepresented. The applicant had previously made applications for leave to appeal out of time. He should therefore be well aware there is time limit for filing application with the court and should be responsible for finding out the time limit for this application. His explanation for the delay is unacceptable. There is no good ground for the court to exercise its discretion to grant extension of time to file the Notice of Motion.

12.In any event, the applicant’s grounds in the present application are just bare assertions without evidence in support. His written submissions are substantially the same as the one advanced before the Court of Appeal in his previous application. The Court of Appeal had sufficiently dealt with his submissions in the decision dated 22 April 2022. He does not have any reasonably arguable basis to show that the Court of Appeal was wrong in dismissing his application. Furthermore, he 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).

13.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 1 June 2022.

The Applicant, acting in person