RE MOHAMMAD HALIM JAWED

CACV 432/2021

[2022] HKCA 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 432 OF 2021

(ON APPEAL FROM HCAL NO. 2039 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

The appeal

1.  By a Notice of Appeal dated 10 September 2021, the applicant sought to appeal against the decision[1] of Deputy High Court Bruno Chan (“the Judge”) given on 31 August 2021 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review. 

2.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 13 August 2014 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 April 2014 rejecting his non-refoulement claim under the torture risk, BOR 3 risk and persecution risk grounds.    

3.  On 10 September 2021, the Registrar of Civil Appeals directed the applicant to lodge with the Court two copies of appeal bundle by 24 September 2021.  The direction was communicated to the applicant by letter dated 10 September 2021 which was handed to the applicant when the notice of appeal was filed.  The applicant did not lodge the appeal bundle by the time stipulated in the directions.    

The Unless Order and the dismissal of the appeal

4.  On 15 October 2021, having regard to the applicant’s default, Chu JA made an unless order (“Unless Order”), which was communicated to the applicant by letter of the same day.  The Unless Order stipulated that:

“Unless by 4:30 pm on 8 November 2021 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further order, stand dismissed.”

5.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 9 November 2021.  The order dismissing the appeal was mailed to the applicant by letter dated 15 November 2021. 

6.  The two letters from the Court communicating the Unless Order and the order dismissing the appeal were all sent to the address provided by the applicant in the notice of appeal (“the Address”) by ordinary post as well as registered post.  The letters sent by ordinary post had not been returned by the post office.  The letters sent by registered mail were returned to the court for the reason that they were not claimed by the applicant.  

The application for relief from sanction

7.  On 10 December 2021, the applicant filed a summons to apply for relief from the sanction imposed by the Unless Order.  On 14 December 2021, the Registrar of Civil Appeals directed the applicant to file an affirmation in support of his summons, and also two sets of application bundle (including a written submission) by 28 December 2021.  The Registrar for Civil Appeals further directed that if no written submission or application bundle was lodged by the time stipulated, the applicant would be deemed to have waived his right to rely on written submissions, in which case the Court would proceed to determine his application based on the available materials.

8.  The applicant did not comply with the directions.  He has not filed a supporting affirmation or lodged an application bundle and written submission as directed.  In the circumstances, we deem the applicant does not wish to file evidence to support his summons, and that he waives his right to rely on written submission.  We have therefore proceeded to determine the applicant’s summons on the materials available. 

Our reasons for decision

9.  Order 2 rule 4 of the Rules of the High Court 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 filed 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.  The summons only asked for relief from the Unless Order and did not offer any explanation for the applicant’s failure to comply with the Registrar of Civil Appeal’s directions and the Unless Order.  As the applicant fails to file a supporting affirmation, there is thus no explanation before us as to the reasons for the applicant’s default in complying with the Court directions and the Unless Order.  The applicant has accordingly failed to show that his delay is excusable. 

12.  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 bound to fail. 

13.  The applicant is an Indian national who has since July 2007 overstayed in Hong Kong.  He was arrested by the police on 26 September 2008.  He later raised a torture claim, which was processed as a non-refoulement claim upon the commencement of the unified screening mechanism.  His claim was based on his fear of being harmed or ill-treated by his creditor due to his failure to repay his loan.  The applicant’s claim was set out in details in the Director’s first decision and the Board’s decision and summarised by the Judge at [1] to [7] of CALL-1 Form dated 29 March 2018. 

14.  In gist, in 2006 the applicant made a loan from a local loan shark.  He was unable to make repayment after his business closed down in mid-2007.  After being threatened by his creditor on several occasions, he left India for mainland China from where he came to Hong Kong.           

15.  By a notice of decision dated 9 April 2014, the Director rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the further decision covered the BOR 2 risk[5] ground. 

16.  The applicant’s appeal to the Board was heard on 24 June 2014.  By its decision dated 13 August 2014, the Board dismissed the appeal. Principally the Board did not find the applicant a credible witness having regard to the inconsistencies and discrepancies in his evidence, and did not accept his claim.  In any event, the Board considered that it was a private monetary dispute with no government official being involved.  The Board found that state protection was available and internal relocation was viable, which would reduce any risk of harm that he might face.  The Board concluded there was no real risk of torture or harm if the applicant were to return to his home country and that none of the applicable grounds being considered was made out.   

17.  Subsequently by a further decision dated 5 January 2017, the Director further considered the applicant’s claim under the BOR 2 risk[6] ground and decided against him.  The applicant has not lodged any appeal to the Board against the Director’s further decision.

18.  On 26 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decision of the Board which was mistakenly stated to be dated 10 September 2018.  Upon enquiry by the Court, the Board confirmed there was no decision dated 19 September 2018.  The Judge accordingly took the applicant’s application to be an intended judicial review of the Board’s decision dated 13 August 2014. 

19.  The applicant did not provide any ground to support his intended judicial review application.  He only stated in his supporting affirmation that his life would be in danger if he returned to India and asked to be allowed to remain in Hong Kong until his problem was solved. 

20.  The Judge dealt with the application on the papers.  On 31 August 2021, the Judge refused to extend time and dismissed the application for leave to apply for judicial review for the reasons he gave in [11] to [17] of the Form CALL-1 as follows:

“11. … the Applicant was also seriously out of time with his intended application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12. As the last day of the three-month period for him to file his Form 86 fell on 13 November 2014, and hence the Applicant was more than 3 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial, for which he did not provide any explanation in his Form or supporting affirmation, and as the record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his very serious delay.

14. As for the merits, if any, of his intended application, as also noted above, the Applicant has not put forth any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having considered 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.”

21.  The notice of appeal contained the following grounds of appeal:

(1)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence, resulting in an unfair outcome.

(2)  The Board and the Court failed to take into account this argument or the Director’s failure to give sufficient weight to the argument.

(3)  The Director kept referring to country of origin information (COI) that suited his pre-conceived conclusion. This is a clear case of unfair attitude on the part of the Director.

(4)  The Board failed to make sufficient enquiry before finalising its decision. 

(5)  It had failed to allow the applicant sufficient chance to arrange relevant evidence to support his non-refoulement claim and his appeal.   

24.  For the reasons set out below, we are of the view that the grounds of appeal in the notice of appeal are unarguable: 

(1)  In an appeal against the refusal of leave to apply for judicial review, the focus is on the correctness of the decision and reasoning of the judge below.  In this case, the applicant was seriously out of time when he filed the Form 86.  He did not provide any grounds in support of his intended judicial review.  The Judge, having regard to the applicable legal principles, refused to extend the time for applying for judicial review and dismissed his leave application accordingly.  The grounds of appeal in the notice of appeal, however, have not addressed the Judge’s reasons for dismissing the application, and failed to identify any error in the Judge’s reasons.   

(2)  None of the challenges that the applicant now seeks to make against the decisions of the Director and the Board had been raised in the application before the Judge.  It is not permissible for the applicant to raise these new grounds, which are fact-sensitive, on appeal. 

(3)  It is also not open to the applicant to criticise the Judge for not considering the issue of state acquiescence when he had not put forward this issue as a ground for seeking relief in the application made to the Court of First Instance.

(4)  In any event, assessment of credibility, evidence and COI as well as risks of harm are matters for the Director and the Board, who are the primary decision makers. The court will not interfere with the primary decision makers’ decision unless it can be shown that there is error of law or irrationality in the decision and/or procedural unfairness in the process by which the decision is made.  The grounds of appeal in the applicant’s notice of appeal are no more than bare assertions with no supporting particulars.  For instance, the applicant has not elaborated why state acquiescence is relevant given that his claim stemmed from a private loan dispute.  There are also no particulars of what COI relied on by the Director that showed he was biased against the applicant. 

(5)  Moreover, by the time the Board heard the applicant’s appeal in 2014, it was almost six years after he lodged his torture claim.  There should be sufficient time for the applicant to gather materials and evidence that could support his claim.  Hence, the complaints that he was given adequate time to provide evidence in support of his claim and appeal or that the Board did not make sufficient enquiry are untenable.

27.  As 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 also not in the interest of administration of justice to grant the relief sought.     

28.  Accordingly, we refuse to give relief from the sanction imposed by the Unless Order, and dismiss the summons filed on 10 December 2021.