Case Detail

MOHAMMED FATEH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Related cases with same parties

CACV100/2026SINGH NARINDER PAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV10/2022ROBILLOS ADOLFO DE LA CRUZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2021LUU THI VAN v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2023ALMAS KHAWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV103/2025COLLINS OBI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2019DHALI JONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV104/2023VU THI NGOC MY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV105/2021DINH THI VAN 對 TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE
CACV107/2023NGUYEN THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV107/2025AHMAD AQEEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1081/2025HOANG VAN BINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV110/2021AYUB MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV11/2023RUPASINGHA ARACHCHIGE SHIROMA THARANGANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV112/2025NONG THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV113/2022SITI MULDIYATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1151/2025ARSHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2022GALLEGO VALDES AUGUSTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2024QUIRANTE JACKIELON DE GUZMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV115/2025DINH KHAC KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
CACV1153/2025MEGA PUSPITA SARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Files (2)

[2022] HKCA 672-EN-2022-05-20

MOHAMMED FATEH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HTML content

CACV 88/2021

[2022] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2021

(ON APPEAL FROM HCAL NO 1155 OF 2018)

________________________

BETWEEN
	Mohammed Fateh	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: 17 December 2021

Date of Judgment: 20 May 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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chow JA) handed down on 15 October 2021 ([2021] HKCA 1501) 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 3 December 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 17 December 2021. Having considered his written submissions and the papers, it is appropriate to determine this application on paper.

3. The applicant is a national of India. He came to Hong Kong on 16 April 2014 as a visitor and subsequently overstayed. He was arrested by the police on 4 May 2014. He raised a non-refoulement claim on 6 May 2014. He claimed that he will be harmed or killed by a loan shark if he returns to India because he failed to repay the loan.

4. His non-refoulement claim was dismissed by the Director of Immigration on 31 December 2015 and 9 December 2016. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 12 June 2018.

5. He filed a Form 86 on 21 June 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by Deputy High Court Judge K W Lung on 23 February 2021 ([2021] HKCFI 423).

6. On 9 March 2021, the applicant filed a notice of appeal against the judge’s decision. His appeal was dismissed on 13 July 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 27 July 2021. His application was dismissed by the Court of Appeal on 15 October 2021. The applicant filed a Notice of Motion on 3 December 2021 for leave to appeal to the Court of Final Appeal out of time.

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 relied on 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] prefers to 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 approach unlikely fairly access the danger of my life and clearly not reasonable.”

9. In his written submissions, he further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

10. 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. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

11. Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

12. 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.

13. 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. The Court had sent the judgment to the applicant’s address as stated in his notice of change of address for service filed on 10 August 2021. It is noted that the applicant’s address stated in his present application is slightly different from the address stated in his notice of change of address for service[1]. It is the duty of a litigant to give the court an address to which correspondence or notice 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 shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at §15).

14. In any event, the applicant’s grounds of appeal and submissions 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 observe the Unless Order.

15. 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).

16. 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 3 December 2021.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] i.e. Room B is added in the address provided in the present application

CACV 88/2021

[2021] HKCA 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2021

(ON APPEAL FROM HCAL NO 1155 OF 2018)

________________________

BETWEEN
	Mohammed Fateh	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: 10 August 2021

Date of Judgment: 15 October 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down 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 India. He is 29 years old. He came to Hong Kong on 16 April 2014 as a visitor and subsequently overstayed. He was arrested by the police on 4 May 2014. He raised a non-refoulement claim on 6 May 2014. He claimed that he will be harmed or killed by a loan shark if he returns to India because he failed to repay the loan.

3. By a Notice of Decision dated 31 December 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk^{^[1]}, BOR 3 risk^{^[2]} and persecution risk^{^[3]}.

4. By a Notice of Further Decision dated 9 December 2016, the Director rejected the applicant’s claim on BOR 2 risk ^{^[4]} in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non- refoulement claim.

5. His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 12 June 2018.

6. On 21 June 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.

7. His leave application was dismissed by Deputy High Court Judge K W Lung on 23 February 2021. He filed a notice of appeal on 9 March 2021 against the said decision of the judge.

8. On 28 April 2021, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 12 May 2021 two sets of the appeal bundle. The applicant did not comply with this direction. On 21 May 2021, the Registrar further directed that the applicant should lodge the bundles on or before 4 June 2021, 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 29 June 2021, Kwan VP made an order that unless the applicant lodges two sets of the appeal bundle by 4 pm on 13 July 2021, the appeal shall be dismissed immediately without further order (“the Unless Order”). As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 13 July 2021 pursuant to the Unless Order.

10. On 27 July 2021, the applicant filed the present summons to apply for relief from the sanction for failing to comply with the Unless Order.

11. On 28 July 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 application bundle together with his written submissions and filed an affirmation in support on 10 August 2021.

12. Having considered the bundle, the written submissions and the affirmation lodged by the applicant, this court thinks it appropriate to determine the present summons on paper without holding an oral hearing.

Grounds of appeal

13. The applicant’s grounds of appeal stated in the notice of appeal are that he 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.

14. In his written submissions, he 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

15. 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.

16. 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 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.

Analysis and disposition

17. The appeal was dismissed on 13 July 2021 for failure to comply with the Unless Order. The summons was filed within the prescribed period of 14 days on 27 July 2021.

18. The applicant explained in his affirmation that he got the Unless Order on 25 July 2021.

19. The court had sent a letter to the applicant’s address by post on 29 June 2021 notifying him of the Unless Order, before sending the sealed copy of the Unless Order to the applicant on 22 July 2021.

20. Moreover, as mentioned above, the court made two orders previously on 28 April 2021 and 21 May 2021 requiring the applicant to lodge appeal bundles before making the Unless Order. The court also made clear in the order of 21 May 2021 that the consequence of dismissal of the appeal may be imposed should the applicant fail to act as directed. Under these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions.

21. Furthermore, his appeal is devoid of merits. His grounds of appeal and submissions are just bare assertions without evidence in support. He 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.

22. For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 27 July 2021.

23. As the appeal has already been dismissed on 13 July 2021, we make an order to expunge the application to fix a date for hearing of the appeal filed on 10 August 2021.

(Susan Kwan)
Vice President

(Anderson Chow)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to 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 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.

[4] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).