RE HOSSAIN FARUK

CACV 471/2018

[2022] HKCA 500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 471 of 2018

(ON APPEAL FROM HCAL NO. 79 of 2018)

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D E C I S I O N

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Hon Cheung JA (giving Decision 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.  He entered Hong Kong illegally on 11 September 2013 and was arrested by the Police on 14 September 2013.  He raised a non-refoulement claim on 8 August 2016.   He claimed that if he returns to Bangladesh he will be harmed or killed by the supporters of the rival political party, Awami League. 

3.  His claim was dismissed by the Director of Immigration (‘the Director’)  on 3 February 2017.  His appeal to the Torture Claims Appeal Board (‘the Board’)  was dismissed on 5 January 2018. 

4.  On 16 January 2018, the applicant filed Form 86 to apply for leave for judicial review against the decision of the Board.  He put forward the following grounds for judicial review :

1)  the lack of legal representation in his appeal before the Board;

2)  the lack of legal assistance to him in that he was not provided with a translation of his non-refoulement claim form to enable him to determine if the interpreter had translated the basis of his claim properly, and he was not provided with any proper or genuine explanation for rejecting his claim under BOR 2 risk;

3)  the wrongful exercise of case management power by the Board in erroneously relying on Country of Origin information in assessing the malpractice of police and law enforcement in Bangladesh;

4)  the lack of fair hearing for failing to give reasons for not requiring the attendance of the Director in his appeal hearing.

5.  His leave application was dismissed by Deputy High Court Judge Bruno Chan on 21 September 2018.  He filed a notice of appeal on 24 September 2018 against the decision of the Judge.

6.  On 28 September 2018, the Registrar of Civil Appeals directed that the applicant should lodge with the Court on or before 18 October 2018 three sets of appeal bundle.  The applicant did not comply with this direction.  On 23 October 2018, the Registrar further directed that the applicant should lodge the bundles on or before 9 November 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 7 January 2019, this Court (Kwan VP and Cheung JA)  made an order that unless the applicant was to lodge the appeal bundles on or before 21 January 2019, 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 21 January 2019 pursuant to the Unless Order.

8.  On 10 December 2021, approximately two years after the dismissal of the applicant’s appeal, the applicant filed the present summons to apply for relief from the sanction for failing to observe the Unless Order. 

9.  On 14 December 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 28 December 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.

I.  Grounds of appeal

11.  The grounds of appeal stated in the notice of appeal is that the applicant’s life would be in danger if he were returned to Bangladesh. 

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

1)  high standards of fairness are required in the determination of a torture claim;

2)  the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility; and

3)  the Board’s decision was Wednesbury unreasonable.

II.  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.

III.  Analysis and disposition

15.  The appeal was dismissed on 21 January 2019 for failure to comply with the Unless Order.  The present summons issued on 10 December 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 7 January 2021 notifying him of the Unless Order, before sending the sealed copy of the Unless Order to the applicant on 25 January 2021.

17.  Moreover, as mentioned above, the Court previously made two orders on 28 September 2018 and 23 October 2018 requiring the applicant to lodge appeal bundles before making the Unless Order.  The Court also made clear in the order of 23 October 2018 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 10 December 2021.