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

CACV 60/2022

[2022] HKCA 1786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2022

(ON APPEAL FROM HCAL NO 301 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Kwan Ag CJHC (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 handed down on 27 May 2022 ([2022] HKCA 730). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge To dated 27 January 2022 ([2021] HKCFI 313)  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 19 July 2022 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 1 August 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 entered Hong Kong on 25 October 2011 as a visitor.  He subsequently overstayed and was arrested by the police on 23 February 2015.  He lodged a non-refoulement claim on 5 March 2015. His claim was made on the basis that he will be harmed or killed by members of the Awami League if he returns to Bangladesh because of his involvement in the rival political party, the Jamaat-e-Islami, and his father’s previous position as the president of its local union.

Grounds of appeal

4.The applicant filed a Notice of Motion on 19 July 2022 for leave to appeal to the Court of Final Appeal and stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.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

6.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).

7.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.

8.The applicant was late for more than 3 weeks in filing the Notice of Motion.  He explained in his affirmation that he did not receive the judgment within the time stipulated for appeal.  The court had sent the judgment to the applicant’s address by post on the day when the judgment was handed down.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15).  There is no good ground in the present case for the court to grant extension of time for the applicant to file his Notice of Motion. 

9.In any event, the applicant’s grounds and submissions are just bare assertions without particulars or evidence in support.  In particular, he has not pointed out any error of the Court of Appeal’s decision in dismissing his appeal.  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). 

10.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 19 July 2022.

The Applicant (Appellant), acting in person