RE DARLAMI BHARAT KUMAR

CACV 405/2018

[2020] HKCA 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 405OF 2018

(ON APPEAL FROM HCAL 731/2017)

________________________

________________________

___________________

JUDGMENT

___________________

Hon Lam VP (giving the Judgment of the Court):

1.  On 14 May 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s order of 8 November 2018 that unless the Applicant lodges appeal bundles by 4:00pm of 22 November 2018, the appeal shall be dismissed without further order immediately after expiry of the deadline. The Applicant had failed to comply with this unless order. The appeal was therefore dismissed accordingly.

2.  In his Notice of Motion, the Applicant raised the following grounds for leave to appeal against the unless order of 8 November 2018:

“ 1. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of whereby the Director and Adjudicator was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration and the Adjudicator.

3. I will face hardship if I return back to my country and that the TCAB has significantly relied on the source of news which is not officially recognized, or is simply hearsay.

4. The Judge did not apply the law correctly.” (sic)

3.  In his affirmation made 13 May 2020 in support of the Notice of Motion, the Applicant deposed:

“… I am presently detained by the Immigration Authorities. I was never served with any order from the High Court, I had no idea that my appeal was dismissed without any further order. …”

4.  The Registrar of Civil Appeals issued directions on 31 May 2020 that:

(a)  the court shall treat the Notice of Motion as an application for relief from the sanction imposed by the unless order of 8 November 2018, pursuant to Order 2 rule 4 of the Rules of the High Court;

(b)  the Applicant shall file a supplemental affirmation in support of the application for relief from sanction on or before 17 June 2020;

(c)  the Applicant shall lodge with the court 2 sets of application bundle on or before 24 June 2020.

5.  The Applicant failed to comply with the Registrar’s directions of 31 May 2020; no supplemental affirmation was filed and no application bundle was lodged. 

6.  On 14 September 2020, Lam V-P issued the following direction:

“ Unless the applicant complies with the directions of 31 May 2020 by 5 October 2020, the Court will not have any materials to support the exercise of discretion to grant any relief. In that event, the Court shall process the Notice of Motion of 14 May 2020 on the basis that the applicant does not wish to seek relief and determine the Notice of Motion on the papers.”

7.  Notwithstanding these directions, the Applicant has filed nothing to support any application for relief.

8.  Thus, the Notice of Motion is processed on the basis that the Applicant does not wish to seek relief, and we are going to determine the Notice of Motion on the papers.

9.  Although the Applicant deposed that he was in detention at the time of his supporting affirmation, he did not specify the period during which he was in detention. 

10.  According to the court’s records, the unless order of 8 November 2018 was sent by post on 8 November 2018 and again on 5 March 2019 to the Applicant’s address for service as stated on his Notice of Appeal of 20 August 2018.

11.  It is the Applicant’s responsibility to keep the Court informed of his current address.  He only informed the Court of his detention on 13 May 2020.

12.  Likewise, he did not inform the Court when he was released or provide an updated address after his release.  The Court’s direction of 14 September 2020 was returned by the Immigration Department with a stamp dated 16 September 2020 marked “Already Left”.

13.  The Court re-sent the direction of 14 September 2020 to the Applicant at his previous address at Temple Street extending the time for him to produce materials for seeking relief to 23 October 2020.

14.  The Applicant did not respond.

15.  Having reviewed the grounds set out in the Applicant’s Notice of Motion, we do not find any reasonably arguable basis for contending that the unless order of 8 November 2018 was wrongly made.  It is well established that failure to lodge appeal bundle in accordance with the directions of the court hampering the prosecution of the appeal constitutes failure to prosecute an appeal with due diligence and it is appropriate to make an unless order in such circumstances.

16.  As indicated by the Registrar, the proper course that the Applicant should take was to apply for relief.  As indicated by the direction of 14 September 2020, if the Applicant wishes to make an application for relief, it has to be supported by proper material.

17.  Due to his failure to update the Court with timely information of his current address, the Applicant failed to put before this Court a proper application for relief.

18.  In the circumstances, there is no reason for granting leave for the Applicant to appeal to the Court of Final Appeal.

19.  For the above reasons, we dismiss the Applicant’s Notice of Motion.