Jahangir Hossain v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 332 /2022, [2023] HKCA 1026

On appeal from [2022] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 332 OF 2022

(ON APPEAL FROM HCAL NO 2289 OF 2018)

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J U D G M E N T

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

1.This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 17 February 2023 ([2023] HKCA 179). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 8 August 2022 refusing to grant extension of time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged written submissions 5 days late on 25 April 2023.  Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.The applicant stated his grounds of appeal in his Notice of Motion filed on 6 April 2023 which may be summarised as follows:

(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 judge was wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director;

(3)  There is some error in the decision.  Decision maker just relied on the country of origin information (“COI”) and facts which favour the rejection of his claim;

(4)  Actual life is different from the situation mentioned in the COI. “Officer and courts” prefer to ignore the overwhelming evidence of violence towards minorities searching for unrealistic silver lining;

(5)  The judge did not apply the law properly;

(6)  The applicant would be killed or harmed if he returns to his country.

4.In his written submissions, he reiterated the problems he faced in his home country and contended that the immigration officer could not realize the seriousness of his case.  He further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

5.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).

6.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.

7.The applicant was late for more than 2 weeks in filing the Notice of Motion.  He explained in his affirmation that he was unrepresented and was unaware of the rules regarding the time limit.  Ignorance of the rules cannot be accepted as a valid excuse for non-compliance.  There is no good ground in the present case for the court to grant extension of time to file the Notice of Motion.

8.In any event, the applicant’s intended appeal is devoid of merits.  His complaint on the Board’s failure to properly assess his credibility is without basis.  The Board had given detailed analysis concerning the applicant’s credibility in paragraphs 51 to 57 of its decision.  The applicant has not put forward any evidence to refute the Board’s findings.

9.The rest of his grounds and submissions are not supported by specifics or evidence.  Moreover, 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 6 April 2023.