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

CAMP 362 /2022, [2023] HKCA 1171

On appeal from [2022] HKCFI 1904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 362 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1117 OF 2019)

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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 handed down on 24 February 2023 ([2023] HKCA 218). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 23 June 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s 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 his written submissions one day late on 3 May 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.

3.The applicant is a national of Bangladesh. He was arrested for illegally remaining in Hong Kong on 14 February 2016 and subsequently raised his non-refoulement claim on 3 March 2016. The applicant’s claim is made on the basis that he would be ill-treated or killed by members of the Awami League because of his political affiliation with the Bangladesh Nationalist Party, an opposing political 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 the judge on 16 August 2022[1].

5.On 21 September 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 18 April 2023, the applicant only stated that he did not get justice so he wants to go to the Court of Final Appeal to get justice.

7.In his written submissions, he reiterated the procedural history of his claim and the problems he faced in his home country. He further submitted that he wants to go to the Court of Final Appeal to speak for the interests of all asylum seekers.

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. 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).

9.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.

10.The applicant was late for more than 5 weeks in filing his Notice of Motion. He did not provide any explanation for his delay. Thus, there is no good ground for the court to grant extension of time for him to take out the present application.

11.In any event, the applicant did not point out any mistakes in the judgment of the Court of Appeal, nor did he 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).

12.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 18 April 2023.

The Applicant, acting in person