RE MOHAMMAD SABIR

CACV 159/2018

[2018] HKCA 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 159 OF 2018

(ON APPEAL FROM HCAL NO. 979 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 21 September 2018, the applicant applies for relief from the sanction imposed by the unless order made by Chu JA on 13 July 2018 (“Unless Order”).

2.  By the Notice of Appeal dated 16 May 2018, the applicant sought to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 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 20 November 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 April 2017 rejecting his non-refoulement claim on all applicable grounds. 

3.  On 23 May 2018, the Registrar of Civil Appeals directed the applicant to lodge with the Court three sets of appeal bundle on or before 12 June 2018.  The directions were communicated to the applicant by letter dated 24 May 2018.  The applicant did not lodge any appeal bundle by the time stipulated in the directions.  Instead, he applied for legal aid on 11 June 2018, which application was refused by the Director of Legal Aid on 22 June 2018.

4.  On 21 June 2018, the Registrar of Civil Appeals lifted the legal aid stay, and ordered that unless the applicant lodged with the Court three sets of appeal bundle on or before 3 July 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 directions were communicated to the applicant by letter dated 22 June 2018.  The applicant did not comply with the order of the Registrar of Civil Appeals. 

5.  On 13 July 2018, 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 27 July 2018 the applicant lodges with the Court three sets of appeal bundle in accordance with paragraphs 1 to 4 of the directions given by the Registrar of Civil Appeal on 23 May 2018, the appeal shall, without further notice, stand dismissed.”

6.  As the applicant did not comply with the Unless Order. Consequently, the appeal was dismissed.  The order dismissing the appeal was mailed to the applicant on 24 August 2018. 

7.  On 11 September 2018, the applicant conducted a search of the Court file.  On 21 September 2018, he issued the present summons together with a supporting affirmation.  In compliance with the Registrar of Civil Appeal’s directions, he also filed a written submission on 15 October 2018.

8.  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. 

9.  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.

10.  Both in the affirmation and the written submission in support of the present summons, the applicant explained that he had entrusted a friend to help him with the preparation of his appeal, but this friend had left for India.  The applicant said that initially on receiving the court’s letter, he had asked this friend whether he had to do anything, and was told it could wait until his return from India.  Later when there were more letters from the court, the applicant became suspicious and sought help from another friend, who told him that his appeal had been dismissed.  The applicant said he came to the free legal advice office in the High Court building to find out what he could do, and it was with much effort that he came to know what he should do and he then made the present application.  The applicant assured the court that he would provide the appeal bundle if relief from the sanction of the Unless Order was given.  He further said that he did not know English well and was confused about the procedures.

11.  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.

12.  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. 

13.  Secondly, given that the appeal was brought by the applicant, it would be incumbent upon him to proceed with the case diligently. In this regard, we find it difficult to accept his explanation that he had not complied with the court’s directions to lodge appeal bundle because the friend whom he trusted told him not to worry and to wait until his return from India. The applicant did not disclose in his affirmation whether, apart from telling him it could wait, this friend had told him what was the content of the court’s letter.  The applicant also did not say when this friend returned to Hong Kong.  Nor did he indicate what step he himself had taken to follow up on his appeal or find out its progress in the period between 16 May when he filed the Notice of Appeal and September when he found out the appeal had been dismissed.

14.  Thirdly and importantly, the appeal has no merits.  The background and basis of the applicant’s non-refoulement claim and the decisions of the Director and the Board had been summarised by the Judge in [1] to [7] of the Form CALL-1 dated 4 May 2018, [2018] HKCFI 937.  It is not necessary to repeat them here.  The grounds on which the applicant sought to judicially review the decision of the Board and the Judge’s reasons for rejecting them, after holding an oral hearing, were set out in [8] to [13] of the Form CALL-1 as follows:

“8. On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision on the basis of procedural unfairness under four categories as follows for his intended challenge:

(1) that the Board unlawfully fettered its discretion in refusing his appeal on the ground that it did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) that the Board’s decisions in refusing his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness; and

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant.

9. All these grounds are just broad and vague statements without any specifics, but in support of his claim of procedural unfairness, the applicant did state in both his Form 86 and supporting affirmation of the same date the following complaints:

(1) that he was given the hearing bundle with documents all in English only six days before the hearing of his appeal before the Board thereby not providing him with sufficient time to prepare for his appeal or to find proper interpreter to assist him; and

(2) that the Board relied significantly on sources of news not officially recognized or was simply hearsay or outdated resulting in groundless speculation of his safe return to India.

10. For his first complaint, the applicant claims that it was only on 18 July 2017 when he was given the hearing bundle by the Director for his appeal hearing on 25 July 2017 before the Board, and as all the documents were in English, there was not sufficient time for him to prepare and to find a proper interpreter to assist him for the appeal. Even if he indeed only received the bundle on 18 July 2017, of which he never raised any complaint to the Board at his oral hearing on 25 July 2017, it is plain that he was already well familiar with most of the documents which consisted of his non-refoulement claim forms which were completed by him, the summary of his assertions and the basis of his claim for protection prepared by his lawyer, records of his screening interviews as well as the Director’s decision all when he still had legal representation under the Duty Lawyer Service, while an interpreter was provided by the Board to assist him at his oral hearing during which as noted he declined to testify. In the circumstances I do not find anything amiss arising from any late provision of the hearing bundle to him or anyway in which he could be so prejudiced.

11. As for his second complaint over improper reliance of COI by the Board, the applicant has never provided any particulars or specifics as to how or where the Board got it wrong with the COI or which of them were not officially recognized or were hearsay or outdated, which is plainly his duty to do so, as has been held by the Court of Appeal that even high standard of fairness does not entitle a claimant to just make the claim and then sit back and require the Director or the Board, and in this case the Court, to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 47.

12. 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.

13. 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.”

15.  The applicant advanced the following ground of appeal in the Notice of Appeal:

“The [applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

16.  With regard to the claim that the applicant would face hardship if refouled, the Board had found his case to be riddled with inconsistencies and contradictions and doubted his credibility.  The Board further pointed out that, even on the applicant’s case, there was no direct or reliable evidence of any threat of harm to him.    

17.  As for the complaint about the country of origin information relied on by the Board, this had been considered by the Judge.  The applicant has not pointed to any error in the Judge’s reasons for rejecting this complaint.  We also see no proper basis to interfere with the Judge’s reasons and conclusion.   

18.  As the 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.     

19.  For the reasons given above, we refuse the application for relief from the sanction imposed by the Unless Order.  We dismiss the applicant’s summons.