Re Munshi Dalowar

CACV 383/2021

[2022] HKCA 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2021

(ON APPEAL FROM HCAL NO. 2217 OF 2018)

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Before : Hon Cheung and Chow JJA in Court

Date of Decision : 14 November 2022

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.On 14 April 2022 this Court (Cheung and Chow JJA) handed down our judgment ([2022] HKCA 525]) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 August 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim (‘Judgment’).

2.On 2 June 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  He has annexed to his notice of motion 3 pages in supplement.  The applicant has not lodged any written submissions.

3.Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.The background to this case and the applicant’s claim have been set out in our Judgment.  We will not repeat them.

5.Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that 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 extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time by three weeks.  The applicant in his affirmation states :[1]

‘ … I received the judge decision … on 14 April 2022. I received the Court Order right time but I do not read and write English .the judge order was in English. No body can help me on this matter and also I don’t have any idea of the possibility my situation is very bad then Lat[e] file the judicial review part Notice of Motion’

7.While we acknowledge that the applicant may have had a language barrier in understanding the rules of procedure, the onus is on the applicant to explain what he did in the intervening period.  A mere statement to the effect that he was unaware of the rules is not a good reason.  We therefore find that the delay was a serious one.  In any event, the more important consideration in deciding whether to extend time is the prospect of the applicant’s intended appeal to the Court of Final Appeal.

8.As to the merit of the intended appeal, 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.

9.The notice of motion states :

‘ … I would like to inform this Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claims. Actual life occur different situation then what is mentioned in COL information. The officer and court perfect to ignore the overwhelming of the evidence of this violence towards minorities. The officer and court perfect to ignore the overwhelming of the evidence of this violence towards minorities. Searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable. Hong Kong government doesn’t know about the Corruption in Bangladesh. If I would return to Bangladesh must be harmed and killed by enemy by the local supporters of rival political party Awami League (AL). … ’

10.Having considered the notice of motion and the 3‑page annexure, we are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.Nor do we see any basis for granting leave under the ‘or otherwise’ limb under section 22(1)(b).

12.In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the notice of motion.

The applicant, unrepresented, acting in person