Case Detail

CACV 185 /2019

[2020] HKCA 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2019

(ON APPEAL FROM HCAL NO 178 OF 2018)

________________________

BETWEEN
	Ahammed Md Robin	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Yuen JA and Barma JA in Court

Date of Written Submission:	29 June 2020
Date of Judgment:	6 August 2020

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

Background

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 11 March 2020 ([2020] HKCA 140) dismissing his application for relief from sanction for failing to observe an unless order.

2. The applicant first took out an application in HCAL 379/2017 to seek leave to apply for judicial review against the decision of the adjudicator of the Torture Claims Appeal Board(“the Board”) concerning his non-refoulement claim. This was refused by Deputy High Court Judge Woodcock on 26 January 2018^{^[1]}.

3. He did not lodge an appeal against the decision of DHCJ Woodcock but took out another application for leave to apply for judicial review under a new action number HCAL 178/2018 against the decision of the Board. This was dismissed by Deputy High Court Judge Josiah Lam on 4 April 2019^{^[2]}.

4. The applicant then filed a Notice of Appeal against the decision of DHCJ Josiah Lam on 17 April 2019. On 18 April 2019, the Registrar of Civil Appeals directed him to lodge appeal bundles on or before 8 May 2019. He did not comply with the direction. The Registrar made a further direction on 10 May 2019 that he should lodge the appeal bundles on or before 29 May 2019, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order. He again failed to comply with this direction.

5. By an unless order made by Kwan VP on 31 May 2019, the applicant was directed to lodge the appeal bundles on or before 10 June 2019, failing which the appeal would be dismissed without further order (“the Unless Order”).

6. As the applicant did not lodge any appeal bundle by the time stipulated pursuant to the Unless Order, his appeal was dismissed on 11 June 2019.

7. On 18 October 2019, he filed a summons to apply for relief from sanction for failing to observe the Unless Order. His application was dismissed by the Court of Appeal on 11 March 2020 as it was considered that there was no good reason for the failure to comply with the Unless Order and the appeal has no merits.

8. The applicant filed a Notice of Motion and an affirmation in support on 11 May 2020 for leave to appeal to the Court of Final Appeal and lodged his written submission on 29 June 2020.

9. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 22 May 2020 that the Notice of Motion shall be determined on paper only without an oral hearing. Having considered the Notice of Motion and the written submission, we think it appropriate to determine this application on paper and will proceed to do so.

10. The applicant stated the following grounds of appeal in the Notice of Motion and his supporting affirmation:

(1) It is not true there is no substance in the grounds of his application for leave to seek judicial review.
(2) He did not complain about the poor performance of his duty lawyer due to his fear that he would be picked out for “misappropriating” by the adjudicator.
(3) He did not have enough time to “address the bundle”.
(4) The judges were wrong in law in holding that there was no state acquiescence or involvement.
(5) The judges also failed to find out the details of the current situation of Bangladesh.

11. His further submission in writing may be summarized as follows:

(1) High standards of fairness are required in the determination of a torture claim and the decision-maker is under a duty to act fairly.
(2) The Board failed to scrutinize the Director of Immigration and did not consider matters such as the country conditions of the applicant’s country of origin.

Discussion and disposition

12. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), 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, if it considers appropriate, extend the time for making an application for leave to appeal.

13. Section 22(1)(b) of the Hong Kong Court of Final Appeal 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.

14. The judgment of the Court of Appeal was handed down on 11 March 2020 during the period when there was a general adjournment of court proceedings for public health reasons. In particular, the High Court Registry was closed during 22 March to 5 May 2020, so for that period the applicant was not able to file the Notice of Motion. He did so promptly on 11 May after the Registry was re-opened. For the purpose of computing the 28-day period from the date of the judgment of the Court of Appeal, the period of closure of the Registry would be excluded pursuant to section 71(1A) of the Interpretation and General Clauses Ordinance (Cap 1). So there is no need for us to exercise our power to extend time for the applicant to file the Notice of Motion.

15. Turning to the merits of the application, the applicant has not pointed out why the Court of Appeal was wrong in dismissing his application for relief from sanction. In particular, he has not demonstrated with evidence in support there is any merit in his appeal against the decision of DHCJ Josiah Lam.

16. The applicant’s grounds of appeal and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He has 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).

17. We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2019] HKCFI 101

[2] [2019] HKCFI 869

CACV 185 /2019

[2020] HKCA 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2019

(ON APPEAL FROM HCAL NO 178 OF 2018)

________________________

BETWEEN
	Ahammed Md Robin	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Barma JA in Court

Date of Written Submission:	17 December 2019
Date of Judgment:	11 March 2020

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is an application by a non-refoulement claimant for relief from sanction for failing to comply with an unless order. The matter arose in this way.

Background

2. The applicant is a national of Bangladesh of 33 years old. He entered Hong Kong illegally on 15 July 2014 and was arrested by the police on the same day. He raised a non-refoulement claim on 19 July 2014. He claimed that he would be harmed or killed by members of the Awami League if he were to return to Bangladesh because of his refusal to join their political party.

3. His claim was dismissed by the notice of decision and the notice of further decision of the Director of Immigration (“the Director”) on 26 July 2016 and 11 May 2017 respectively. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 22 June 2017.

4. On 10 July 2017, the applicant applied for leave to apply for judicial review under action number HCAL 379/2017 against the decision of the adjudicator of the Board (“the 1^st leave application”). It was dismissed by Deputy High Court Judge Woodcock on 26 January 2018^{^[1]}.

5. The applicant did not lodge an appeal against the judge’s decision but reapplied for leave for judicial review against the decision of the Board under a new action number HCAL 178/2018 on 7 February 2018 (“the 2^nd leave application”).

6. The 2^nd leave application was heard before Deputy High Court Judge Josiah Lam on 22 August 2018. As the grounds raised by the applicant in the 2^nd leave application had previously been considered and rejected by the court in the 1^st leave application^{^[2]}, the judge found that such application was not justified and must be regarded as an abuse of process. Therefore, the 2^nd leave application was dismissed on 4 April 2019^{^[3]}.

7. By a notice of appeal filed on 17 April 2019, the applicant appealed against the said decision of DHCJ Josiah Lam.

8. On 18 April 2019, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 8 May 2019 three sets of appeal bundle. The applicant did not comply with this direction. On 10 May 2019, the Registrar further directed that the applicant should lodge the bundles on or before 29 May 2019, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order. The applicant again failed to comply with this direction.

9. On 31 May 2019, Kwan VP made an order that unless the applicant lodges the appeal bundles on or before 10 June 2019, his appeal will be dismissed without further order (“the Unless Order”). As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 11 June 2019 pursuant to the Unless Order.

10. The applicant filed the present summons and a supporting affirmation on 18 October 2019 to apply for relief from the sanction for failing to observe the Unless Order.

11. On 22 October 2019, the Registrar gave directions for the filing of evidence and the lodging of submissions and an application bundle for this summons. The Registrar further stated that upon consideration of the documents lodged as directed, the Court of Appeal will decide whether to determine the summons on paper or hold a hearing.

12. The Board wrote to the Registrar on 7 November 2019 stating that they intended to take a neutral stance and sought to be excused from attending any hearing. The applicant lodged two sets of the application bundles and his written submission on 17 December 2019.

13. Having considered the application bundles lodged by the applicant as well as other documents filed in the present proceedings and those filed in the court below under HCAL 379/2017 and HCAL178/2018, we think it is appropriate to determine the present summons on paper without holding an oral hearing.

The grounds of appeal in CACV 185/2019

14. The grounds of appeal in the notice of appeal are that the applicant will face hardship if he is to return to his home country and that the Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay or are outdated cases. The lack of credible source of information has resulted in their groundless speculation.

15. In the applicant’s affirmation filed on 18 October 2019 and his written submissions lodged on 17 December 2019, he submitted that:

(a)     He is a genuine non-refoulement claimant who faced dangerous problems, harassment and torture in his country. He was unable to find any place to stay safely in his country^{^[4]}.
(b)     The Director and the adjudicator of the Board reached a wrong decision in assessing his USM claim. They rejected his claim without proper inquiry and without carefully understanding his situations.
(c)     If he did not run away, he would certainly have been killed by his enemies. His problems were getting more and more life‑threatening. He had no choice but to escape to Hong Kong and seek asylum here.

Legal Principles

16. Pursuant to Order 2 rule 4 of the Rules of the High Court (“RHC”), where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.

17. Under Order 2 rule 5(1) of the RHC, when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among other things, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

Analysis

18. This appeal was dismissed on 11 June 2019 for failure to comply with the Unless Order. The summons issued on 18 October 2019 was filed well out of the stipulated period of 14 days under Order 2 rule 4.

19. The applicant explained in his affirmation that the Unless Order was served on him on 17 June 2019 but he did not receive the Unless Order until 17 October 2019 when he went to the court to inquire about the progress of his appeal. He speculated that the letters from court did not reach him because there are some new small rooms in the same house he is living in so it is highly possible that the postman or some other tenant might have taken or thrown away some letters due to misunderstanding.

20. In fact, the court had sent a letter dated 31 May 2019 by post to the applicant’s address at “Room 3, 5^th Floor”, as stated in his notice of appeal filed on 17 April 2019, notifying him of the Unless Order. The court had later sent a sealed copy of the Unless Order by post to the same address on 18 June 2019, which was returned to the court as the address is incomplete. It is pertinent to note that the applicant stated his address as “Flat C, Room 3, 5/F” in the present summons but he has not filed a notice of change of address for service with the court.

21. The Court of Appeal has repeatedly stressed that it is the duty of a litigant to give the court a correct address so that correspondence or notice sent to his address 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 shoulders of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15).

22. Moreover, this appeal has no merits. The grounds of appeal stated in the notice of appeal are just bare assertions without specifics or elaboration. The applicant’s complaints against the Director and the Board stated in his affirmation and written submissions are not supported by evidence.

23. In addition, he failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review^{^[5]}.

Disposition

24. For the above reasons, we decline to exercise our discretion to grant relief from sanction. We therefore dismiss the summons filed on 18 October 2019.

(Susan Kwan)	(Aarif Barma)
Vice President	Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2019] HKCFI 101

[2] Although the intended grounds for judicial review raised in the 1^st leave application and the 2^nd leave application are not all the same, the grounds relied on in the 2^nd leave application were included in the 1^st leave application.

[3] [2019] HKCFI 869

[4] His country was wrongly stated as Indonesia in his affirmation.

[5] Nupur Mst v Director of Immigration[2018] HKCA 524 at §14

AHAMMED MD ROBIN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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