RE CHARANMEET SINGH

CACV 462/2021

[2023] HKCA 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 462 OF 2021

(ON APPEAL FROM HCAL 2991 OF 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 by way of Summons filed on 6 June 2022 seeking relief from sanction (namely the dismissal of his appeal on 18 February 2022)  imposed for his non-compliance with an unless order dated 19 January 2022 (“the Unless Order”).

Background

2.  By a decision dated 4 October 2021 (see [2021] HKCFI 2943), Deputy High Court Judge P Li (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board, which dismissed his appeal against the decision of the Director of Immigration dismissing his non-refoulement claim.

3.  On 5 October 2021, the applicant lodged a Notice of Appeal seeking to appeal against the Judge’s decision.  The Registrar of Civil Appeals directed on 5 October 2021 that the applicant should on or before 19 October 2021 lodge with the court, inter alia, two sets of appeal bundle consisting of various documents listed in the directions (“the Registrar’s Directions”).

4.  As the applicant failed to comply with the Registrar’s Directions, this court (Barma JA)  made the Unless Order on 19 January 2022, ordering that unless the applicant lodged with the court two sets of appeal bundle for this appeal by no later than 5 pm on 17 February 2022, the appeal shall stand dismissed.

5.  The applicant failed to comply with the Unless Order, and the appeal was accordingly dismissed by an order dated 18 February 2022.

6.  In respect of the applicant’s present Summons for relief from sanction, the Registrar of Civil Appeals on 14 June 2022 directed that the application shall on or before 28 June 2022 file an affirmation in support of the Summons and lodge with the court two sets of application bundle.  As of the date of this judgment, the applicant has wholly failed to comply with the aforesaid directions.

The present application

7.  As the applicant failed to lodge any written submissions with this court, he is deemed to have abandoned his right to rely on the same.

8.  Having considered the applicant’s Summons, we consider it appropriate to determine the present applications on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

9.  Order 2 rule 4 of the Rules of the High Court (Cap 4A)  (“the RHC”)  provides:

“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.”

10.  Since the Summons was filed more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect.

11.  Under Order 2 rule 5(1)  of the RHC, in determining an application for relief from sanction imposed due to the failure to comply with a court order, the court shall consider all the circumstances, including, inter alia, 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.

12.  In the present case, the Unless Order required the applicant to comply with the court’s directions by no later than 17 February 2022.  The applicant thereafter had 14 days to apply for relief from sanction, a period expiring on 3 March 2022.  The Summons however was not filed by the applicant until 6 June 2022.  Even excluding the court’s general adjournment period (7 March - 11 April 2022), we consider the delay in applying for relief from sanction to be substantial, and that this application is liable to be dismissed on this basis alone.

13.  In the Summons, the applicant merely stated that he is seeking relief from sanction from this court, without proffering any explanation at all for the delay in bringing this application.  Nor has he provided any reasons for his failure to comply with the Unless Order.  Moreover, the applicant has failed to file any affirmation in support or application bundles for the present application, in breach of the directions given by the Registrar of Civil Appeals.

14.  We are therefore of the view that the applicant has proffered no good explanation for the failure to comply with the Unless Order.

15.  Even if we were to accept that the non-compliance with the court’s directions and the Unless Order was excusable (which we do not), 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, we are of the view that the appeal has no merits and is bound to fail.

16.  The applicant’s appeal is against the decision of the Judge given on 4 October 2021 refusing leave to him to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 24 December 2018 (“the Board’s Decision”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 12 September 2017 (“the Director’s Decision”)  rejecting his non-refoulement claim.

17.  The applicant is a national of India. He arrived in Hong Kong as a visitor, but he overstayed and was arrested by the police 5 February 2017.  Thereafter, he lodged a non-refoulement claim on 7 March 2017.

18.  The applicant’s claim was based on a fear of being harmed or killed by supporters of the Akali Dal Party.  The details of the applicant’s claim have been summarised by the Judge at [2] to [12] of the Judge’s decision (at [2021] HKCFI 2943 (“the CALL-1 Form”)).

19.  By a Notice of Decision dated 12 September 2017 (i.e. 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].

20.  The applicant appealed to the Board.  After a hearing on 26 July 2018, the Board dismissed the appeal on 24 December 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board cast doubt on the credibility of the applicant’s evidence, and concluded that there was no real risk of harm if he were to return to India.

21.  The applicant filed a Form 86 on 28 December 2018 seeking to judicially review the Board’s Decision and stated in his supporting affirmation that he was dissatisfied with the Board’s Decision and that there was a “problem in [his] country”.

22.  After summarising the facts and background of the case, giving due consideration to the Director’s Decision and the Board’s Decision, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [17] to [21] of the CALL-1 Form:

“17.   The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he reiterated that he had problems in India. He did not point out any error in the decision of the TCAB.

18.  In judicial review, the task of this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

19.  In my view, the adjudicator had thoroughly analyzed the evidence. I agree with him that the evidence was implausible and unconvincing. It could not support a real risk of harm for non-refoulement protection. 

20.  In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

21.  The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

23.  In the Notice of Appeal filed on 5 October 2021, the applicant set out his grounds of appeal, essentially, as follows:

(1)  the Director failed to appreciate or accord sufficient weight to the “presence of state acquiescence” in his case;

(2)  the Board failed to “make sufficient [enquiries] before finalising the determination”;

(3)  the Board did not give the applicant “sufficient chance … to arrange relevant evidence”;

(4)  the Director displayed an “unfair attitude” which rendered the Director’s Decision “void”.

24.  The applicant has in his Notice of Appeal failed to identify with proper particulars any error on the part of the Judge and has thus failed to raise any viable ground of appeal.  Although attacks were made in respect of the Board’s Decision (which is the subject of the intended review), the applicant has failed to particularise his complaints, in particular how and in what way it is said that the Board had erred in law, was procedurally unfair in reaching its decision, or how such decision was said to be Wednesbury unreasonable.

25.  As we consider that the applicant’s appeal has no merits and is bound to fail, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is in any event not in the interest of administration of justice to grant the relief sought.

26.  Accordingly, we refuse to grant relief from the sanction imposed by the Unless Order.

Disposition

27.  For the above reasons, the Summons filed on 6 June 2022 is dismissed.