RE RANAPEHALI PRIYA

CACV 418/2019

[2020] HKCA 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 418 OF 2019

(ON APPEAL FROM HCAL NO. 20 of 2018)

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JUDGMENT

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

1.  By summons filed on 20 January 2020, the applicant applies for relief from the sanction imposed by the unless order made by Chu JA on 13 December 2019 (“Unless Order”).

2.  By a Notice of Appeal dated 9 September 2019, the applicant sought to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 26 July 2019 striking out and dismissing her application for leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 2 February 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 7 June 2016 and 30 December 2016 rejecting her non-refoulement claim. 

3.  On 10 September 2019, the Registrar of Civil Appeals directed that since the application in HCAL 20/2018 was a second application for leave to apply for judicial review, a hearing will be listed before the Court of Appeal to consider whether to strike the notice of appeal as an abuse of the court process.  To facilitate the hearing, the Registrar of Civil Appeals gave directions for filing of evidence and lodging submissions by the Director, the Board and the applicant, and further directed the applicant to lodge with the Court two sets of hearing bundle on or before 22 October 2019. The directions were communicated to the applicant by letter dated 11 September 2019.  The applicant did not lodge any appeal bundle by the time stipulated in the directions. 

4.  On 25 October 2019, the Registrar of Civil Appeals ordered that unless the applicant complied with the earlier direction on the lodging of hearing bundle on or before 12 November 2019 the case would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order that carried the sanction of a dismissal of the appeal.  The order was communicated to the applicant by letter dated 28 October 2019.  The applicant did not comply with the order of the Registrar of Civil Appeals. 

5.  On 13 December 2019, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter of 16 December 2019.  The Unless Order stipulated that:

“Unless by 4:00 pm on 2 January 2020 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

6.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 3 January 2020.  The order dismissing the appeal was mailed to the applicant by a letter dated 7 January 2020 (“7 January letter”). 

7.  The four letters from the Court communicating the directions made by the Registrar of Civil Appeals, the Unless Order and the Order dismissing the appeal were all sent by post to the address provided by the applicant in the notice of appeal and the affirmation accompanying the notice of appeal (“the Address”).

8.  On 20 January 2020, the applicant issued the present summons together with a supporting affirmation to seek relief from the sanction imposed by the Unless Order.  Pursuant to the direction of the Registrar of Civil Appeals, the applicant has put in a written submission.  

9.  Order 2 rule 4 of the Rules of the High Court, Cap. 4A provides that: “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.”  Since the applicant’s summons was issued more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

10.  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 others, 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.

11.  In the affirmation in support of the present application, the applicant said that, other than the 7 January letter, she had not received any letter from the Court.  She confirmed that the Address was correct, and the 7 January letter reached her at the Address.  She said she did not understand why the other letters from the Court had not reached her.  She, however, also said that she lived in a sub-divided flat and relied on the landlord to pass on her letters.  She further mentioned that her landlord went to China and did not leave behind the key to the letter box.   

12.  The applicant also explained that as she was uneducated and did not understand English, she had to seek help from her friends, which was why it took her some time to make the present application.

13.  We find the applicant’s explanation for her non-compliance with the Court’s directions to lodge hearing bundles and the Unless Order not entirely satisfactory.  It is clear, and the applicant accepts, that letters sent to the Address would be received by her, just like she had received the Court’s letter of 3 January 2020.  Although she said she did not know why the Court’s letters containing the Court’s directions and the Unless Order did not reach her, she seemed to suggest it was possibly because her landlord was away and there was no access to the letter box.  We accept it is possible that the applicant will not be able to receive letters sent to her when the landlord is away, but this will only result in delay in receiving letters, and does not explain why three of the Court’s four letters were not delivered to her.  We also note that the applicant had not stated the period during which her landlord was away from Hong Kong.   

14.  Even if we were to accept that the non-compliance with the Court’s directions and the Unless Order was excusable, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  This is because, for the reasons given below, the appeal has no merits and is liable to be struck out. 

15.  The applicant is an Indian national who last arrived in Hong Kong in June 2008 and was given permission to remain to work as a domestic worker.  After her employment contract was terminated on 18 March 2009, she overstayed and was arrested by the police on 13 July 2010.  She later made a non-refoulement claim based on her fear of being harmed by the supporters of a political party for leaving the party and also the supporters of a rival political party. 

16.  By two decisions dated 7 June 2016 and 30 December 2016, the Director determined against the applicant.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.  The second decision covered the BOR 2 risk[4] ground.  The applicant’s appeal to the Board was heard on 11 January 2017.  By its decision dated 2 February 2017, the Board dismissed the appeal on all the applicable grounds.  Principally the Board did not believe that the applicant would face a real and personal risk of harm or ill treatment upon her return to her home country. 

17.  The applicant filed a Form 86 in HCAL 101/2017 on 27 March 2017 to apply for leave to judicially review the decision of the Board raising eight grounds for seeking relief.  On 3 November 2017, the application was dismissed by Deputy High Court Judge Woodcock.  The applicant did not appeal the decision.

18.  Two months later on 4 January 2018, the applicant filed another Form 86 in the action below (HCAL 20/2018) to apply for leave to judicially review the Board’s decision relying on the same grounds as those in HCAL 101/2017. 

19.  On 26 July 2019, the Judge struck out and dismissed the application.  The Judge’s reasons for the decision were set out in [12] of the Form CALL-1, [2019] HKCFI 1763.  Firstly, the Judge considered the principle of res judicata applied.  Secondly, the Judge was of the view it was an abuse of the court process to make a second application after the first application was refused and relying on the same grounds for seeking relief.  

20.  The applicant did not set out any grounds of appeal in the notice of appeal.  In her affirmation filed in support of the appeal, the applicant set out two grounds of appeal. The first is that the Judge was wrong in law to hold that there was no state acquiescence or involvement.  The second is that the Judge failed to provide detailed reason for his decision. 

21.  In the written submission in support of the present application, the applicant further said that the Board was wrong to reject her claim without an open inquiry and without carefully understanding her case.  

22.  These are not viable grounds of appeal.  The focus of an appeal is the correctness of the decision and reasoning of the judge below. The grounds of appeal advanced in the affirmation in support of the appeal and the points made in the written application do not address the Judge’s reasons for striking out the application as an abuse of process.  The applicant has not disputed that the application below is a second application for leave to judicially review the Board’s decision, and that her first application was dismissed.  In the circumstances, the Judge is entitled to strike out the application, especially when it is based on the same grounds as the first application.  The applicant has not identified any error in the Judge’s decision or reasoning.

23.  Importantly, an appeal against the dismissal of a second identical application for leave to apply for judicial review is an abuse of the court process and is liable to be struck out: see this Court’s decisions in Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22]; and Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16].  The applicant’s appeal should therefore be struck out for being an abuse of the court process.   

24.  For completeness sake, we would further point out that the grounds of appeal stated in the affirmation in support are misplaced because the Judge’s decision did not touch upon state acquiescence or involvement, and he had also given reasons for his decision.  Similarly, the arguments in the written submission are also misplaced because the Board had held an oral hearing to deal with the applicant’s appeal.    

25.  As the applicant’s appeal should have been struck out, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is also not in the interest of administration of justice to grant the relief sought.     

26.  Accordingly, we refuse the application for relief from the sanction imposed by the Unless Order, and dismiss the applicant’s summons.