RE ALIM ABDUL

CACV 498/2018

[2019] HKCA 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 498 OF 2018

(ON APPEAL FROM HCAL NO. 875 of 2017)

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JUDGMENT

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

1.  By summons filed on 11 February 2019, the applicant applies for relief from the sanction imposed by the unless order made by Chu JA on 4 January 2019 (“Unless Order”).

2.  The applicant filed a Notice of Appeal dated 4 October 2018 to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 28 September 2018 refusing him 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 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 May 2016 and 2 August 2017 rejecting his non-refoulement claim, and the decisions of the Director.

3.  On 22 October 2018, the Registrar of Civil Appeals directed the applicant to lodge with the Court three sets of appeal bundle on or before 7 November 2018.  The direction was communicated to the applicant by letter dated 23 October 2018.  The applicant did not lodge any appeal bundle by the time stipulated in the directions.  On 12 November 2018, the Registrar of Civil Appeals ordered that unless the applicant lodged with the Court three sets of appeal bundle on or before 28 November 2018, 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 13 November 2018.  The applicant did not comply with the order of the Registrar of Civil Appeals. 

4.  On 4 January 2019, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter of the same day.  The Unless Order stipulated that:

“Unless by 4:00 pm on 21 January 2019 the applicant lodges with the Court three (3) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

5.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 22 January 2019.  The applicant was informed of the dismissal of the appeal by letter dated 25 January 2019, and the order dismissing the appeal was mailed to the applicant on 28 January 2019.

6.  On 11 February 2019, 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 lodged a written submission.  

7.  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. 

8.  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.

9.  In the supporting affirmation, the applicant confirmed that the address stated in the Notice of Appeal was correct and he still resides at that address.  He said that while he had received other correspondence from the Court, including the letter informing the dismissal of the appeal and the order dismissing the appeal, he had not received the Court’s letter dated 4 January 2019 containing the Unless Order.  He explained that he lived in a sub-divided unit and letters sent to his address would be passed to him by the landlord. According to him, the landlord went to mainland China, and since he did not have keys to the mail box, he did not receive letters that were sent to the address.  It was after he received the letter informing the dismissal of the appeal that he made enquiries with the Court and learnt of the Unless Order.   

10.  Having considered the circumstances of this case, we are of the view that we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.

11.  Firstly, the applicant had twice failed to comply with the Registrar of Civil Appeal’s directions to lodge appeal bundle before the Court made the Unless Order.  He has given no explanation for his failures.   Even accepting that the applicant indeed did not receive the letter dated 4 January 2019 containing the Unless Order, there is no satisfactory explanation for his non-compliance with the Court’s directions.    

12.  Secondly, and critically, for the reasons given below, the appeal has no merits. 

13.  The applicant is a Bangladeshi national who entered Hong Kong illegally.  After his arrest by the police on 15 July 2014, he made a non-refoulement claim based on his fear of being harmed by members of Awami League (“AL”) because of his membership and work with the Bangladesh Nationalist Party (“BNP”).  He claimed to be an ordinary member of BNP, and had attended its meetings and rallies and helped with some daily tasks of the party.  He said that in 2013 or 2014, some supporters of AL threatened on several occasions to kill him if he continued to work for BNP. The threats were made directly to him and also through his wife.  Fearing for his safety, he left Bangladesh and went to Guangzhou, from where he came to Hong Kong. 

14.  By two decisions dated 26 May 2016 and 2 August 2017, the Director rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the second decision covered the BOR 2 risk[4] ground.  The Board heard the applicant’s appeal against the Director’s decisions on 4 September 2017, during which the applicant had given evidence and answered questions put by the Board.  By its decision dated 3 November 2017, the Board dismissed the appeal.  Having found the applicant’s evidence unreliable and his claim not credible, the Board concluded that none of the applicable grounds was made out.   

15.  The applicant filed a Form 86 and a supporting affirmation on 13 November 2017 to apply for leave to judicially review the decisions of the Director and the Board.  The Judge heard the application at an oral hearing.  By his decision dated 28 September 2018, the Judge refused to give leave to apply for judicial review.  The applicant’s grounds for judicial review, and the Judge’s reasons for rejecting them were set out in [11] to [16] of the Form CALL-1, [2018] HKCFI 2201 as follows:

“11. … [the applicant] put forward the following grounds for his intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

12. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. The only other complaint which the applicant appears to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant in his appeal before the Board.

15. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

16.  The applicant put forward the following grounds of appeal in the affirmation filed together with the Notice of Appeal[5]:

(1)   The Judge was wrong in law in holding there was no state acquiescence or involvement.

(2)   The Judge failed to provide detailed reasons to support his decision.  

17.  Exhibit A to the affirmation in support of the appeal is substantially the same as the affirmation filed in support of the Form 86.  It additionally raised the following new complaints against the Board’s decision:

(1)   The Board misdirected itself on the law by considering that the applicant must have experienced torture in order to establish substantial grounds for believing that there was a risk of torture in the future.

(2)   The Board based its conclusion on COI as updated as 2013 to 2015, without establishing that they remain valid up to 2018. There was insufficient inquiry into the COI and a failure to take into account three specific COI mentioned by the applicant, namely: (i) USHR 2010; (ii) USRF 2010; and (iii) Report on ICJ Mission to Bangladesh.  Had the Board considered these references, it ought to have decided the appeal in the applicant’s favour.

18.  The applicant’s written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed. It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.  

19.  The two grounds of appeal are untenable.  On Ground (1), The Judge has not referred to, let alone made any holding on, state acquiescence. Further, state acquiescence or involvement has no relevance since the Board had concluded the applicant’s claim was not credible.  On Ground (2), the Judge had given succinct and adequate reasons for rejecting the grounds for judicial review advanced by the applicant.  Although the applicant’s grounds for judicial review appear to be many, they are, as the Judge correctly pointed out, lacking in particulars and details, and have no substance.  Some of them simply bear no apparent relevance to the applicant’s case.

20.  As to the new complaints raised in Exhibit A, it is trite that the Court of Appeal will not generally entertain new arguments that are fact-and-evidence sensitive and have not been canvassed at the lower courts and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41]. See also Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 as applied in Ubamaka v Secretary for Security [2013] 2 HKC 75 at [185] and [186].  In this case, no explanation was given on why these additional grounds were not included in the grounds for judicial review or argued at the hearing before the Judge.  It would not be open to the applicant to advance these new grounds and arguments in his appeal.

21.  In any event, the new complaints have no merit.  Firstly, the Board did not accept that there were real risks of the applicant being subjected to harm, torture or ill-treatment because it doubted the reliability of the applicant’s evidence and the credibility of his claim.  Whether the applicant had previously experienced torture is therefore irrelevant.  Secondly, the Board’s decision was not premised on any consideration of the COI; hence, the complaint about the Board’s approach to and consideration of COI bears no relationship to the case.  

22.  The written submission does not advance the applicant’s appeal any further.  In so far as it relates to the complaint of no legal representation in the appeal before the Board, this Court had consistently held that the principle of high standard of fairness did not prescribe that a non-refoulement claimant has an absolute right to free legal representation at all stages of his claim.  Apart from a bare assertion of unfairness, the applicant has not identified any real prejudice arising from the fact that he was not legally represented in the appeal before the Board. 

23.  For the reasons given above, the applicant’s appeal has no merits and is bound to fail.  It would therefore 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.     

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