CACV 336/2021
[2022] HKCA 1634
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 336 OF 2021
(ON APPEAL FROM HCAL NO 1256 OF 2018)
____________________
| BETWEEN | | |
| | DHESSI GURCHARANJEET SINGH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
____________________
Before: Hon Yuen and Au JJA in Court
Date of Judgment: 4 November 2022
___________________
J U D G M E N T
___________________
Hon Yuen JA (giving the Judgment of the Court):
Introduction
1. This is the applicant’s application for relief from sanction for failing to observe an “unless order” dated 20 August 2021 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 4 pm 17 September 2021 failing which his appeal would be dismissed (“the Unless Order”). Having considered the materials before us, we are of the view that this application can be disposed of on paper without a hearing.
Background
2. The applicant is a national of India. He arrived in Hong Kong together with his wife and son on 6 February 2015. They overstayed and on 23 February 2015, they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they were to return to India, they would be harmed or killed by Gurjant Singh (“GS”) and his men since they had a personal dispute with the applicant over the election of the Village Head in his home village. The applicant and his family were subsequently released on recognizance pending the determination of their claims, during which his wife gave birth to their daughter on 21 August 2016, for whom a similar claim was raised on the same basis.
Procedural History
3. The claims were dismissed by the Director on 26 May 2017 (in respect of BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4]). Their appeals to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) were dismissed on 18 October 2017. The wife and the children filed their applications for leave to commence judicial review in HCAL 780/2019, their applications were dismissed.
4. The application before this court is that of the applicant alone. He had filed his Form 86 on 3 July 2018 for leave to apply for judicial review against the Board’s decision. By then he was substantially out of time. On 17 June 2021, DHCJ Bruno Chan (“the Judge”) refused to grant him an extension of time and dismissed the application for leave.
5. By a notice of appeal dated 2 July 2021, the applicant appealed against the Judge’s decision. On 2 July 2021, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 16 July 2021 two sets of appeal bundles. The applicant failed to lodge the bundles as directed.
6. On 20 August 2021, a single judge of this court (Yuen JA) made the Unless Order referred to above, that unless the applicant lodges the bundles by 4 pm 17 September 2021, the appeal shall, without further notice, stand dismissed.
7. The applicant did not lodge anything even by the extended deadline, and his appeal was dismissed in accordance with the Unless Order. On the same day, the Appeals Registry received a letter from the applicant alleging that he has “not received prior direction from the court” and he wished to have a copy of the court letter and to seek an extension of time to lodge the bundles.
8. On 20 September 2021, Yuen JA directed that if the applicant wishes to have an extension of time to comply with the directions of 2 July 2021, he should file a summons in the Court of Appeal for relief against sanction under Order 2, rule 5 of the Rules of High Court (Cap. 4A) (“RHC”) with an affirmation setting out the circumstances supporting his application. As for the applicant’s allegation that he did not receive prior directions from the court, it was noted that the applicant had actually signed an acknowledgment of “Directions for Appeals for Non-Refoulement Claims” dated 2 July 2021 (“Directions for Appeal”). Nevertheless, Yuen JA directed that a copy of the Directions for Appeal be sent to the applicant again.
9. By a summons dated 19 October 2021 with supporting affirmation, the applicant applied for leave to comply with the Unless Order. In his supporting affirmation, he explained that he was not legally represented and did not have sufficient funds to engage a lawyer. Even though the Directions for Appeal (with his signature in acknowledgement of 2 July 2021) had been sent to him on 20 September 2021, he maintained that he did not receive prior directions from the court and that had caused the delay.
10. Without the leave of the court, the applicant lodged written submissions dated 8 November 2021 in which he repeated his excuse for his failure to comply with the directions of 2 July 2021, and recapped the subsequent directions /order made by the court.
Legal principles
11. Under Order 2 rule 4 of RHC, where a party has failed to comply with a court order, any sanction for failure to comply imposed by the 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. On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2 rule 5(1) of RHC, 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.
Discussion
13. The applicant’s appeal was dismissed on 17 September 2021 for his failure to comply with the Unless Order dated 20 August 2021. The applicant did not take out a summons within the 14-day time limit as stipulated under Order 2 rule 4 of RHC, although he lodged a letter seeking an extension of time to comply with the Unless Order. More importantly, the applicant failed to offer any satisfactory explanation for his delay in making his application for relief from sanction, and his earlier failure to comply with the Registrar’s directions dated 2 July 2021. His allegation that he did not receive those directions is flatly contradicted by the fact that he had signed an acknowledgment of those directions.
14. Furthermore, the appeal has no merits. In the Notice of Appeal, the applicant failed to put forward any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision.
15. It is clear from the Board’s decision that it considered that the applicant was not the main target of attack, and he did not sustain any serious injury in the incident. In any event, there was no evidence of any public or government official involvement. Relevant country of origin information suggested that there is reasonable state protection, and internal relocation is a reasonable and viable option. For the aforesaid reasons, the Board rejected the applicant’s claim for non-refoulement protection on all applicable grounds. As with the Judge, we see no error of law or procedural unfairness or other irregularities in the Board’s decision.
16. The applicant did not advance any ground of relief in his Form 86, and in his supporting affirmation, he merely repeated his claim that he cannot go back to India as his life would still be in danger. Further, he provided no explanation for his substantial delay of more than 5 months in filing his Form 86.
17. The Judge had rightly applied the test in AW v Director of Immigration [2016] 2 HKCA 393 and found that the substantial delay was inexcusable, and more importantly, there is no merit in the applicant’s case and thus refused to extend time and dismissed the leave application. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and we find nothing amiss in the Judge’s decision.
18. It is incumbent on the applicant to show why the court should exercise its discretion in his favour to grant relief from sanction. For the reasons given above, we are not satisfied the applicant has done so.
19. Having considered all the circumstances including the interests of the administration of justice, we decline to exercise our discretion to grant relief from sanction of the Unless Order. We therefore dismiss the applicant’s summons filed on 19 October 2021.
(Maria Yuen)
Justice of Appeal | (Thomas Au)
Justice of Appeal |
The applicant, unrepresented, acting in person
[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.