RE SHAMSHER SINGH

CACV 225/2019

[2020] HKCA 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 225 OF 2019

(ON APPEAL FROM HCAL 2605/2018)

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J U D G M E N T

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

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 22 July 2019 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 19 August 2019 failing which his appeal would be dismissed. Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 20 November 2015 and was permitted to remain until 4 December 2015.  He overstayed and surrendered to the authorities on 7 December 2015.  He lodged a non-refoulement claim on 31 May 2016. 

3.  The applicant’s claim was based on threats from a group of men who have a land dispute with the applicant.  The details of the applicant’s claim have been summarised by the Board at [9] of its decision dated 14 November 2018.

4.  By a Notice of Decision dated 24 March 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 August 2018 and 6 September 2018, the Board dismissed the appeal on 14 November 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [145] and [192] of the Board’s Decision, the Board found that there were serious concerns about the credibility and reliability of the applicant’s evidence. The Board was also satisfied at [199] that state protection would be available for the applicant and at [208] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 16 November 2018 which contained the following grounds for judicial review, summarised below:

(1)  the Director and Board made Wednesbury unreasonable and unfair decisions.  The Board failed to give the applicant sufficient time and chance to arrange relevant evidence;

(2)  the Director failed to appreciate the presence of state acquiescence given that the applicant was tortured at the behest of state agents;

(3)  the Director failed to give sufficient weight to the applicant’s argument on the insufficient protection afforded by the Indian authorities; and

(4)  the Director failed to meet the high standard of fairness.  He failed to appreciate the corruption and incompetence of the Indian authorities.

8.  The applicant was absent from the oral hearing for the leave for judicial review application.  Deputy High Court Judge Lung (“the judge”) dismissed his application for want of prosecution on 8 May 2019.

9.  By a summons dated 22 May 2019, the applicant applied to the judge to set aside his order dated 8 May 2019.  On the same day, the applicant filed a Notice of Appeal to this court in respect of the same order. 

The judge heard the applicant at the hearing on 5 July 2019.  The judge allowed the application and ordered that the application for judicial review be restored.  The judge reserved judgment on the merits of the leave for judicial review application, to be handed down later.

Grounds for appeal

10.  In the Notice of Appeal dated 22 May 2019 the applicant contended that:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

11.  On 22 July 2019, Barma JA made an order that unless the applicant lodged with the court 2 sets of appeal bundle by no later than on 19 August 2019, the appeal should stand dismissed.  The applicant failed to comply with this order and his appeal was dismissed accordingly.

12.  By a Notice of Motion dated 30 August 2019, the applicant sought leave to appeal to the Court of Final Appeal where he stated that:

“I am an asylum seeker from India. I failed to submit my appeal bundle on time due to lack of knowledge and insufficient sources. Please allow me for further process of my application because I want to stay here until I have problem in my country.”

13.  The application was supported by an affirmation of the same date which stated that:

“Please allow me for further process my case I am late due to lack of knowledge and insufficient sources. Please help me to process my application.”

14.  In the written submission dated 13 September 2019, the applicant submitted that his enemies are resourceful and can find him anywhere in India.  He wants to stay in Hong Kong until his problems are resolved.

Discussion

15.  We would treat the application for leave to appeal to the Court of Final Appeal as an application for relief from sanction for failure to comply with the order dated 22 July 2019.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2 rule 5 RHC. 

17.  In The IO of Yue Sun Mansion v Lake Side Elderly Centre Limited (unreported, HCMP556/2017, 25 October 2017) at §12, the court held that:

“Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1) in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was) in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

18.  The passage above was applied by this court in Labrador Nolito Blazado [2018] HKCA 720 at [11].

19.  The applicant failed to file any application bundle or supply the appeal bundle as required by the order dated 22 July 2019.  The application for relief from sanction ought to be dismissed for this reason alone.  Despite these failures, we shall nonetheless consider his application on its merits. 

20.  As we have held in Re: Abdus Salam [2019] HKCA 1091 at [26], it was not appropriate for an application for judicial review to have been dismissed for want of prosecution merely because the applicant had not appeared at the hearing for leave for judicial review.  We would therefore consider the grounds of judicial review in dealing with the present application.

21.  For the grounds directed at the Director’s Decision, we note that the Director’s Decision has been superseded by the Board’s Decision, so there is no need to consider those grounds concerning the Director’s Decision in the judicial review application.

22.  In the Form 86, the applicant contended that the Board’s Decision was unreasonable and unfair and that he did not have sufficient time to arrange relevant evidence.  The applicant failed to provide sufficient particulars for any of the above complaints.  He failed to identify any public law error in the Board’s Decision.

23.  In the Notice of Appeal, the applicant also contended that he was not given the opportunity to plead his case properly and that the Board failed to appreciate the gravity of his circumstances.  The applicant did not supply any particulars of the matters that he wished to raise or of the circumstances that were allegedly not considered by the Board.  These grounds are also without merits.

24.  Having considered all the documents before us, including the Form 86 and the Notice of Appeal, we are of the view that the application for judicial review is without merit and that the application for relief from sanction should also be dismissed for this reason.

25.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.