Case Detail

CACV 209/2020

[2022] HKCA 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2020

(ON APPEAL FROM HCAL NO 1702 OF 2018)

________________________

BETWEEN
	Altaf Amir	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 Chow JA in Court

Date of Judgment: 29 July 2022

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s application by a Notice of Motion filed on 4 March 2022 for leave to appeal to the Court of Final Appeal against the “judgment of the Court of Appeal in CACV 209 of 2020 given on 2/11/2020”.

2. The Court of Appeal did not give a judgment on 2 November 2020. Kwan VP made an unless order on that day that unless the applicant was to lodge three sets of the appeal bundle by 4 pm on 16 November 2020, the appeal would be dismissed immediately without further order (“the Unless Order”). As the applicant did not comply with the Unless Order, his appeal was dismissed on 16 November 2020.

3. The Court of Appeal gave a judgment on 22 October 2021 dismissing the applicant’s subsequent application to set aside the Unless Order and refusing to grant relief from the sanction imposed by the Unless Order[1].

4. We will treat the present Notice of Motion as an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal on 22 October 2021.

5. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 March 2022 that the applicant shall lodge written submissions on or before 18 March 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 21 days after the resumption of court business. The court business has resumed since 12 April 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

6. In the Notice of Motion filed on 4 March 2022, the applicant stated that he did not have the Court of Appeal’s judgment but only got an order. He referred to an order given on 2 November 2020 and asked for a chance to go to the Court of Final Appeal.

7. The applicant is strictly correct that the Court of Appeal only made an order on 2 November 2020, being the Unless Order. This has been overtaken by events in that he applied subsequently on 30 April 2021 to set aside the Unless Order and on 12 May 2021 to seek relief from the sanction imposed by the Unless Order. The Court of Appeal dismissed his subsequent applications in the judgment handed down on 22 October 2021. Hence, we have decided to treat his application for leave to appeal as against the judgment of this court on 22 October 2021.

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 has not given explanation for his substantial delay in filing the Notice of Motion so there is no good ground for the Court of Appeal to grant extension of time for him to file it. In any event, the Court of Appeal has already sufficiently explained why the Unless Order was appropriately made in the judgment dated 22 October 2021. The applicant failed to show that the Court of Appeal was wrong in granting the Unless Order and/or in rejecting his applications to set aside that order and refusing to grant relief from sanction imposed by that order.

11. Besides, the applicant 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).

12. For the above reasons, we decline to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 March 2022.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2021] HKCA 1526

CACV 209/2020

[2021] HKCA 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2020

(ON APPEAL FROM HCAL NO 1702 OF 2018)

________________________

BETWEEN
	Altaf Amir	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 Chow JA in Court

Date of Written Submission: 25 June 2021

Date of Judgment: 22 October 2021

________________________

J U D G M E N T

________________________

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

1. We are concerned with two applications made by a non-refoulement claimant who seeks relief from sanction for failing to comply with an unless order and the setting aside of the unless order.

2. The applicant is a national of Pakistan. He is 31 years old. He claims that he sneaked into Hong Kong by boat on 11 July 2016. He was arrested by the police on 16 July 2016. He raised a non-refoulement claim on 18 July 2016 on the basis that he will be harmed or killed by his uncle if he returns to Pakistan.

3. His claim was dismissed by the Director of Immigration (“the Director”) on 19 December 2016. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 4 July 2018.

4. On 21 August 2018, the applicant filed a Form 86 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any specific grounds for his intended challenge.

5. His leave application was dismissed by Deputy High Court Judge K W Lung on 10 June 2020^{^[1]}. He filed a notice of appeal on 22 June 2020 against the said decision of the judge.

6. On 21 July 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 18 August 2020 three sets of the appeal bundle. The applicant did not comply with this direction. On 29 September 2020, the Registrar made an unless order requiring the applicant to lodge the bundles on or before 22 October 2020, 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 to the effect that the appeal would be dismissed for non-compliance with the order. The applicant again failed to comply with this direction.

7. On 2 November 2020, Kwan VP made an order that unless the applicant was to lodge three sets of the appeal bundle by 4 pm on 16 November 2020, the appeal would be dismissed immediately without further order (“the Unless Order”). The applicant did not lodge any appeal bundle by the prescribed time and his appeal was dismissed on 16 November 2020 pursuant to the Unless Order.

8. On 30 April 2021, the applicant filed a notice of motion for setting aside the Unless Order and for extension of time to lodge the appeal bundles.

9. On 3 May 2021, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of High Court, Cap 4A (“the RHC”), by way of summons supported by affirmation.

10. On 12 May 2021, the applicant filed a summons with an affirmation in support to apply for relief from the sanction imposed by the Unless Order. He also lodged written submissions on 25 June 2021. Pursuant to the directions of the Registrar of Civil Appeals, the summons will be considered together with the notice of motion.

11. Having considered the written submissions and the affirmations lodged by the applicant, this court consider it appropriate to determine the applications on paper without holding an oral hearing.

Grounds of appeal

12. The applicant’s grounds of appeal stated in the notice of appeal are that the gravity of his circumstances have not been weighed or realized by the putative respondents in considering his non-refoulement claim and that he should be given an opportunity to plead his case properly.

13. In his written submissions, he reiterated the danger he may face if he returns to Pakistan and contended that the Director and the Board believed in the country of origin information which does not reflect the real picture of Pakistan.

The Unless Order

14. In the notice of motion, the applicant seeks to set aside the Unless Order and an extension of time to lodge the appeal bundles. The proper course that the applicant should take is to apply for relief from the sanction for failure to comply with the Unless Order: ReDarlamiBharatKumar[2020] HKCA 933. The applicant subsequently filed a summons for relief from sanction pursuant to the directions of the Registrar of Civil Appeals. His application for extension of time will be dealt with below in considering the summons.

15. The applicant does not have any viable ground for setting aside the Unless Order. His stated that he only became aware of the Unless Order recently. This has nothing to do with whether the Unless Order was wrongly made or not. The applicant had repeatedly failed to lodge the appeal bundles pursuant to the directions of the court. Such repeated failures hampering the prosecution of the appeal constitutes failure to prosecute his appeal with due diligence^{^[2]}. Under such circumstances, it is appropriate to make the Unless Order.

16. We therefore dismiss the notice of motion filed on 30 April 2021 to set aside the Unless Order.

Relief from sanction

17. Pursuant to Order 2 rule 4 of the 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.

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

19. The appeal was dismissed on 16 November 2020 for failure to comply with the Unless Order. The applicant filed the notice of motion and the summons several months later, well out of the period of 14 days stipulated under Order 2 rule 4.

20. The applicant stated in his supporting affirmation that he does not understand English, does not understand the documents, does not know how to make an appeal bundle and could not locate his friend whom he had previously relied on about what was needed to be done.

21. The court had sent a letter to the applicant’s address by post on 2 November 2020 notifying him of the Unless Order. Moreover, as mentioned above, the court made two orders previously on 21 July 2020 and 29 September 2020 requiring him to lodge appeal bundles before making the Unless Order. The court also made clear in the two orders that should he fail to act as directed an unless order may be imposed with the consequence of dismissal of the appeal for non-compliance.

22. Under these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions and taking no reasonable steps to find out what was going on after receiving the directions from the court and what he needed to do to proceed with his appeal.

23. Furthermore, this appeal is unmeritorious. The applicant’s grounds of appeal and submissions are just bare assertions without evidence in support. He failed to demonstrate that the judge had made any error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

24. For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 12 May 2021.

(Susan Kwan)	(Anderson Chow)
Vice President	Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1107

[2] Re Darlami Bharat Kumar[2020] HKCA 933 at §15

ALTAF AMIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

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