RE AAMIR ALI

CACV 314/2021

[2022] HKCA 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2021

(ON APPEAL FROM HCAL NO 2687 OF 2018)

____________________

RE:

AAMIR ALI

Applicant

____________________

Before:  Hon Au and Chow JJA in Court

Date of Judgment: 22 August 2022

_______________

J U D G M E N T

_______________

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

1.  On 10 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA) judgment of 19 April 2022 (“the Judgment”) [2022] HKCA 527.  In the Judgment, we dismissed the applicant’s application for relief from sanction for failing to comply with an unless order to lodge his appeal bundles (“Unless Order”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  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 (“CFA”) at the discretion of this Court or the CFA if 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 CFA for decision.

4.  In his Notice of Motion, the applicant asserted that the lack of legal and language assistance provided to him amounted to procedural unfairness and that he was not aware of the time limit for applying for extension of time.  He further asserted that the lack of language assistance deprived him of the right to seek a further avenue of appeal and amounted to a wrongful exercise of case management power.  He then contended that the Judgment had been made with the lack of evidential consideration of issues raised in Court. 

5.  In his written submissions of 24 May 2022 filed pursuant to Practice Direction 2.1, the applicant repeated the matters raised in his Notice of Motion.  He further asserted that the lack of language and legal assistance before the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Deputy Judge amounted to procedural unfairness and unreasonableness and that he was traumatised by the problems in his home country.

6.  In our view, the applicant’s application is totally without merits.  In the Judgment, we dismissed the applicant’s application on the basis that he failed to provide a cogent explanation as to why he failed to comply with the Unless Order to lodge the appeal bundles.[1] We also found that his appeal had no merits and therefore declined to exercise our discretion to lift the sanction.[2]  His allegations fail to pinpoint with particulars any error in the Judgment.

7.  Further, his allegations in relation to the lack of language and legal assistance before the Board and the Deputy Judge are all new and not raised before the judge or in the Notice of Appeal.  It is not the practice of the Court of Appeal to entertain appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, his arguments are general and bare assertions unsupported by particulars.  High standards of fairness do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero[2021] HKCA 279 at [3].

8.  In any event, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him leave to appeal to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 10 May 2022 is dismissed.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 314/2021

[2022] HKCA 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2021

(ON APPEAL FROM HCAL NO 2687 OF 2018)

________________________

RE:

AAMIR ALI

Applicant

________________________

Before:  Hon Au and Chow JJA in Court

Date of Judgment:  19 April 2022

________________________

J U D G M E N T

________________________

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

1.  This is the applicant’s application for relief from sanction for failing to comply with an unless order dated 12 July 2021 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 4pm on 26 July 2021, failing which his appeal would be automatically dismissed without further order (“the Unless Order”).

2.  Having considered the documents and application bundle lodged by the applicant in this application as well as the documents filed in the Court below, we regard it as appropriate to determine the present summons on paper without an oral hearing.

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 10 March 2017 and was arrested by the police on 14 March 2017 and referred to the Immigration Department.  He raised a non-refoulement claim on 16 March 2017 on the basis that he would be in danger of being harmed or killed by his elder brother and uncle if refouled to Pakistan.  Details of the applicant’s non-refoulement claim had been summarised by Deputy High Court Judge To (“Deputy Judge”)  at [4] - [8] of his decision dated 9 June 2021 ([2021] HKCFI 1664)  (“the Leave Decision”).

4.  By a Notice of Decision dated 30 April 2018 (“the Director’s Decision”), the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  His appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  was dismissed on 7 November 2018 (“the Board’s Decision”).  The Board rejected the applicant’s evidence as it considered that the evidence had significant inconsistencies and his case lacked credibility and was not supported by any relevant documentary evidence.  There was therefore no factual basis to support his claim for non-refoulement protection on the applicable grounds.  The Board also found that state protection and internal relocation were available for the applicant.

6.  On 27 November 2018, the applicant filed his Form 86 together with a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  The applicant also attended an oral hearing on 1 June 2021 before the Deputy Judge with the assistance of an Urdu interpreter.  By the Leave Decision, the Deputy Judge found no substance in the applicant’s grounds of review and refused to grant leave to apply for judicial review to the applicant: see [13] - [23] of the Leave Decision.

This Application

7.  On 18 June 2021, the applicant filed his Notice of Appeal against the Leave Decision.  The applicant alleged that the Board did not give him enough time to bring his documents and did not consider his oral submissions.  He contended that it was not possible for him to take shelter in other parts of Pakistan and that state protection would not be enough for him.

8.  On 18 June 2021, the Registrar of Civil Appeals directed, inter alia, that the applicant should lodge with the Court two sets of appeal bundle on or before 2 July 2021.  The applicant acknowledged receipt of these directions in writing on the same day. However, he did not comply with the directions.

9.  On 12 July 2021, Poon CJHC ordered that unless the applicant lodged the appeal bundles by 4pm on 26 July 2021, his appeal would be automatically dismissed without further order.  As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 26 July 2021.

10.  On 3 August 2021, the applicant filed the present summons.  On 9 August 2021, the Registrar of Civil Appeals gave directions for filing a supporting affirmation and lodging two sets of application bundle in support of this application.  The applicant filed his supporting affirmation as well as two sets of application bundle on 23 August 2021.

Legal Principles

11.  Pursuant to Order 2, rule 4 of the Rules of the High Court (Cap 4A)  (“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.

12.  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: see Ahammed Md Robin v Torture Claims Appeal Board[2020] HKCA 140 at [17] and The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Ltd HCMP 556/2017, 25 October 2017 at [12].

Discussion

13.  In relation to his failure to comply with the Unless Order, the applicant claimed in his supporting affirmation dated 23 August 2021 that he received that Court’s letter “quite late from the Court after receiving a phone call from the Immigration Officer”.  He speculated that since his landlord went to Mainland China without giving him the letterbox key, he failed to obtain any letter and had no idea about the letters from the Court.  He also alleged that he was uneducated and lacked legal knowledge and language assistance.  However, he claimed that having since taken legal advice, he understood that there was a good ground of appeal but did not provide any detail as to what this proposed ground of appeal was.  Finally, he claimed that he would be subjected to harm and danger upon returning to Pakistan and that the Director and the Board reached their decisions wrongly.

14.  In his written submissions lodged on 23 August 2021, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which related to the late filing of notice of appeal to the Board but failed to point out its relevance to his case.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

15.  Having considered the circumstances of this case, we are of the view that we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.

16.  As a start, the directions of the Registrar of Civil Appeals dated 18 June 2021 were communicated to the applicant and he had acknowledged receipt of those directions in writing on the same day.  The applicant must be well aware that he should lodge two sets of appeal bundle on or before 2 July 2021 and he gave no reason as to why he failed to comply with those directions.  Also, although the applicant claimed that he did not receive the Court’s Letter on time as his landlord went to Mainland China, the applicant had provided no specific particulars or evidence in support of his contentions.  We therefore do not find his explanation for the non-compliance with the Court’s directions and the Unless Order satisfactory.

17.  Second, and critically, for the reasons given below, his intended appeal has no merits.

18.  The arguments raised by the applicant in his Notice of Appeal were already considered and rejected by the Deputy Judge: see the Leave Decision at [13] - [23].  It is well established that an appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(1)].

19.  More importantly, nowhere in his Notice of Appeal, summons, supporting affirmation or written submissions did the applicant identify any error in the Leave Decision with sufficient particulars and specifics.  The contentions raised by the applicant were all vague, bare and general in nature.  As no viable ground of appeal to challenge the Leave Decision had been raised by the applicant, his intended appeal must fail on this basis alone.

20.  Having considered the materials before us, we have in any event reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision.

21.  In the circumstances, as the applicant’s intended appeal has no merits and is bound to fail, it would be futile to grant relief and allow the applicant to proceed with the intended appeal.  It is also not in the interest of administration of justice to grant relief.  Accordingly, the summons filed on 3 August 2021 is dismissed.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The applicant acting in person