Case Detail

CACV 305 /2020

[2021] HKCA 1559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 305 OF 2020

(ON APPEAL FROM HCAL NO 1339 OF 2018)

________________________

BETWEEN
	Haldar Alom	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	The Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Judgment: 29 October 2021

________________________

J U D G M E N T

________________________

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 (Kwan VP, Cheung JA and Au JA) handed down on 4 June 2021 ([2021] HKCA 783) refusing to grant relief from the sanction for failing to comply with an unless order.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 30 June 2021 that the applicant should lodge written submissions in support of his Notice of Motion on or before 14 July 2021 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant has not lodged any written submission as directed. As the time for compliance with the said directions has expired, and, having considered the papers, we found it to be appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Bangladesh. He raised a non‑refoulement claim on 12 December 2014 on the basis that if he returns to Bangladesh he will be harmed or killed by the supporters of the rival political party Awami League for refusing to join their party.

4. His non-refoulement claim was dismissed by the Director of Immigration on 16 February 2017. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 28 June 2018.

5. He filed a Form 86 on 10 July 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by DHCJ Bruno Chan on 13 July 2020 ([2020] HKCFI 230).

6. On 27 July 2020, the applicant filed a notice of appeal against the judge’s decision. His appeal was dismissed on 16 March 2021 for failure to comply with the unless order to lodge his appeal bundles (“Unless Order”).

7. The applicant filed a summons to apply for relief from sanction for failing to observe the Unless Order on 8 April 2021. His application was dismissed by the Court of Appeal on 4 June 2021. The applicant filed a Notice of Motion^{^[1]} on 30 June 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8. The applicant stated the following as his grounds of appeal in the Notice of Motion:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just reliedon COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefersto ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approachunlikely fairly access the danger of my life and clearly not reasonable.”

Analysis and disposition

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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. In the supporting affirmation, the applicant stated that he seeks leave to file the Notice of Motion out of time as he did not receive the judgment within the time stipulated for appeal. There is actually no issue of delay in the present application as his Notice of Motion was filed within the time stipulated under section 24(2) of the Hong Kong Court of Final Appeal Ordinance.

11. The applicant’s grounds of appeal stated in his Notice of Motion are just bare assertions without particulars or evidence in support. He does not have any reasonably arguable ground to show that the Court of Appeal was wrong in refusing to grant relief from the sanction for failing to comply with the Unless Order.

12. Furthermore, 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).

13. 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 30 June 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] Folio 8

CACV 305/2020

[2021] HKCA 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 305 OF 2020

(ON APPEAL FROM HCAL NO 1339 OF 2018)

________________________

BETWEEN
	Haldar Alom	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 22 April 2021

Date of Judgment: 4 June 2021

________________________

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.

2. The applicant is a national of Bangladesh of 65 years old. He entered Hong Kong illegally on 9 December 2014 and was arrested by the police on the same day. He raised a non-refoulement claim on 12 December 2014. He claimed that if he returns to Bangladesh he will be harmed or killed by the supporters of the rival political party Awami League for refusing to join their party.

3. His claim was dismissed by the Director of Immigration (“the Director”) on 16 February 2017. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 28 June 2018.

4. On 10 July 2018, the applicant filed Form 86 to apply for leave to apply for judicial review against the decision of the Board. He put forward the following grounds for judicial review:

(1) the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;
(2) the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;
(3) the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are the result of procedural errors or unfairness;
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant;
(5) the Board had significantly relied on the source of news not officially recognized or is simply hearsay or outdated; and
(6) the hearing bundle for his appeal was provided to him only six days before the appeal hearing with the majority of the documents in the bundle in English without translation thereby given him insufficient time to prepare for his appeal or to get proper interpretation assistance in his appeal before the Board.

5. His leave application was dismissed by Deputy High Court Judge Bruno Chan on 13 July 2020. He filed a notice of appeal on 27 July 2020 against the decision of the judge.

6. On 12 October 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 30 October 2020 three sets of appeal bundle. The applicant did not comply with this direction. On 2 December 2020, the Registrar further directed that the applicant should lodge the bundles on or before 22 December 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. The applicant again failed to comply with this direction.

7. On 2 March 2021, Kwan VP made an order that unless the applicant was to lodge the appeal bundles on or before 16 March 2021, the appeal would be dismissed 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 March 2021 pursuant to the Unless Order.

8. On 8 April 2021, the applicant filed the present summons to apply for relief from the sanction for failing to observe the Unless Order.

9. On 9 April 2021, the Registrar gave directions for the filing of affirmation in support, the lodging of submissions and the application bundle. 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. The applicant lodged the appeal bundles together with his written submissions and filed an affirmation in support on 22 April 2021.

10. Having considered the appeal bundle, the written submissions and the affirmation lodged by the applicant, we consider it appropriate for this court to determine the summons on paper without holding an oral hearing.

Grounds of appeal

11. The grounds of appeal stated 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 came from outdated cases. The lack of credible source of information has resulted in their groundless speculation.

12. In his written submissions, the applicant further contended that:

(1) high standards of fairness are required in the determination of a torture claim; and
(2) the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Legal Principles

13. Pursuant to Order 2 rule 4 of the Rules of the High Court, 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.

14. Under Order 2 rule 5(1), 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 and disposition

15. The appeal was dismissed on 16 March 2021 for failure to comply with the Unless Order. The present summons issued on 8 April 2021 was filed well out of the 14 days’ period stipulated under Order 2 rule 4. The applicant explained in his affirmation that he received the Unless Order very late.

16. The Court had sent a letter to the applicant’s address by post on 2 March 2021 notifying him of the Unless Order, before sending the sealed copy of the Unless Order to the applicant on 24 March 2021.

17. Moreover, as mentioned above, the Court previously made two orders on 12 October 2020 and 2 December 2020 requiring the applicant to lodge appeal bundles before making the Unless Order. The Court also made clear in the order of 2 December 2020 that the consequence of dismissal of the appeal may be imposed if the applicant should fail to act as directed. In these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions.

18. Furthermore, his appeal is unmeritorious. The grounds of appeal are just bare assertions without evidence in support. The applicant has not demonstrated 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.

19. For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 8 April 2021.

20. As the appeal has been dismissed, we order that the application to fix a date for hearing of the appeal filed on 22 April 2021 be expunged from the court files.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

HALDAR ALOM v. TORTURE CLAIMS APPEAL BOARD

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