RE MD ALI ASGHER

CAMP 310/2019

[2021] HKCA 1811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 310 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 259/2018)

________________________

RE:

MD ALI ASGHER

Applicant

________________________

Before:  Hon Barma JA and Au JA in Court

Date of Judgment:  6 December 2021

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  On 28 April 2021, this court (Barma JA and Au JA)  handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”)  on 19 July 2019 striking out and dismissing his application for leave for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal from the decisions of the Director of Immigration rejecting his their non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 26 July 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers 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 danger of my life and clearly not reasonable.”

4.  In the affirmation filed on 26 July 2021, the applicant deposed that:

“…the plaintiff did not receive the judgment within the time stipulated for appeal…”

5.  The applicant lodged a written submission in support of the application on 6 August 2021.  In the written submission, the applicant explained why it is unsafe for him to return. He also cited a number of articles and provisions in the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap 383 and some international treaties without explaining their relevance.  The applicant also advanced two grounds, namely:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289; and

(2)  the decision maker is under a duty to act fairly.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The applicant did not give any particulars for his bare assertion that he did not receive the judgment in time.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the application. We nonetheless go on to consider the merits of the application.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  Neither the Notice of Motion, affirmation nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 26 July 2021 is dismissed.

(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person

CAMP 310/2019

[2021] HKCA 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 310 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 259/2018)

________________________

RE:

MD ALI ASGHER

Applicant

________________________

Before:  Hon Barma JA and Au JA in Court

Date of Judgment:  28 April 2021

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“judge”) given on 19 July 2019 striking out and dismissing his application for leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 12 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 4 March 2015 and 24 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 November 2003 as a visitor and was permitted to remain until 24 November 2003.  He overstayed and was arrested on 2 October 2011.  He lodged a torture claim on 5 October 2011. 

3.  The applicant’s claim was based on threats from the family of his murdered friend and/or the real murderers.  The applicant’s claim has been summarised by the judge at [1] of the CALL-1 Form.

4.  By a Notice of Decision dated 4 March 2015 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 24 October 2016, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 November 2016, the Board dismissed the appeal on 12 May 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

First application for leave for judicial review: HCAL214/2017

7.  On 19 May 2017 the applicant sought leave from the court to apply for judicial review against the Board’s decision.  DHCJ Woodcock found that none of his proposed grounds was reasonably arguable and refused leave on 8 November 2017. 

8.  The applicant appealed against the decision.  His appeal was dismissed by the Court of Appeal on 13 February 2018 ([2018] HKCA 85).

Second application for leave for judicial review: HCAL 259/2018

9.  On 20 February 2018, the applicant made a second application in HCAL259/2018 to apply for judicial review against the same Board decision.  The applicant did not inform the court of his failed attempt in HCAL 214/2017.

10.  The applicant was absent at the hearing before the judge.  The judge struck out and dismissed the application for leave to apply for judicial review in HCAL259/2018 on 19 July 2019.  The judge held that that it was an abuse of process for the applicant to re-litigate his case by bringing a second judicial review in respect of the same Board decision.

Application for extension of time to appeal

11.  On 9 September 2019, the applicant sought leave to appeal out of time.  The judge dismissed his application on 25 November 2019.  By a summons dated 10 December 2019, the applicant renewed his application to the Court of Appeal.   

12.  In the affirmation filed on the same day in support of the application, the applicant gave the following grounds of appeal:

(1)  the judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2)  the judge failed to provide detailed reason in support of his decision.

13.  In the submissions dated 30 December 2019, the applicant identified a number of errors allegedly made by the Board and the Director.

14.  Those grounds do not address the reasons given by the judge for striking out and dismissing his application.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

16.  The applicant did not disclose to the judge a previous unsuccessful application for leave to judicial review against the same Board’s Decision before DHCJ Woodcock in either his Form 86 or supporting affirmation.  This amounts to an abuse of process and thus the intended appeal should be struck out: Bepary Shahealom v Torture Claims Appeal Board[2018] HKCA 763, per Lam VP at [22]; Khan Kamran v Torture Claims Appeal Board[2020] HKCA 380; Re Mamun Mohammad Tuhin Al[2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board[2018] HKCA 519 at [4.1].  More so, this also applies to an application to appeal out of time.  On this basis alone, this application should be dismissed (Nahid Mohammad[2020] HKCA 735, per Au JA at [27]).

17.  Despite directions from the Registrar of Civil Appeals dated 13 December 2019, the applicant had not provided any explanation for proceeding by way of a second judicial review. 

18.  In the circumstances, the applicant has no arguable basis to support a second attempt in judicial review against the same decision and it is clearly an abuse of process.

19.  In any event, the applicant did not provide any explanation for his delay of about 7 days.  Nor did he satisfy this court that his intended appeal has real prospect of success as he did not provide sufficient details for any of the grounds of appeal.  There is simply no ground for this court to intervene the judge’s decision.

20.  In the circumstances, the applicant’s intended appeal has no merits at all and it would be futile to extend time.  Accordingly, we dismiss the applicant’s summons of 10 December 2019.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal

The applicant acting in person