RE RAHMAN MOHAMMAD MASUDUR

CACV 174/2019

[2019] HKCA 895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2019

(ON APPEAL FROM HCAL NO 923 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  By a summons filed on 9 July 2019, the applicant applies for relief from the sanction for failing to observe the unless order dated 24 May 2019 whereby he was required to lodge appeal bundles by no later than 31 May 2019, failing which his appeal would be dismissed without further order (“the Unless Order”).

2.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 15 November 2013.  He was arrested by the police on 16 November 2013 and raised a non-refoulement claim on 18 November 2013.   He claimed that he would be harmed or killed by some members of the Awami League (“AL”) and its student wing Chhatra League (“CL”).  He was a supporter of Islami Chhatra Shibir (“Shibir”) which was the student wing of Jamaat-e-Islami (“Jamaat”) and he refused to join AL/CL.  AL dominated the Bangladeshi government and suppressed the activities of Jamaat and Shibir.

3.  His claim was dismissed by the Director of Immigration (“the Director”) on 17 November 2017.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 10 May 2018. 

4.  On 24 May 2018, the applicant applied for leave to apply for judicial review against the decisions of the Director and of the Board (HCAL 923/2018).  His leave application was dismissed by Deputy High Court Judge Josiah Lam on 2 April 2019.

5.  By a notice of appeal filed on 11 April 2019, the applicant appealed against the judge’s decision.  The grounds of appeal as stated are that the judge failed to check the applicant’s problem and the Director and adjudicator “did not properly exercise law”.

6.  On 15 April 2019, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 2 May 2019 three sets of appeal bundle.  The applicant did not comply with this direction. He wrote to the court on the same day seeking an extension of time of one month to submit his documents, stating that he could not find all his documents.

7.  On 3 May 2019, the Registrar directed that the deadline for lodging the appeal bundle be extended to on or before 21 May 2019, and that in the event of failure to comply with the extended time limit the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order.  The applicant again failed to comply with this direction.

8.  On 24 May 2019, Kwan VP made an order that unless the applicant lodges the appeal bundle on or before 31 May 2019, the appeal would be dismissed without further order (“the Unless Order”).  The applicant did not lodge any appeal bundle by the prescribed time and his appeal was dismissed on 1 June 2019 pursuant to the Unless Order.  

9.  On 9 July 2019, the applicant filed the present summons and a supporting affirmation.  The Registrar directed that this summons be treated as his application for relief against sanction of the Unless Order and directed the applicant to lodge two sets of an application bundle consisting of the documents as stipulated.  The applicant has complied with this and also lodged his written submission on 26 July 2019. 

10.  Having considered the application bundle as well as other documents filed in CACV 174/2019 and HCAL 923/2018, we think it appropriate to determine the present summons on paper without holding an oral hearing.

Legal Principles

11.  Pursuant to Order 2 rule 4 of the Rules of the High Court (“RHC”), 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.

12.  Under Order 2 rule 5(1) of the RHC, 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 other things, 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.

Analysis and disposition

13.  The summons was filed on 9 July 2019, well out of the 14 days’ period stipulated under Order 2 rule 4.  The appeal was dismissed on 1 June 2019 for failure to comply with the Unless Order. 

14.  The applicant explained in the summons and affirmation that he did not receive the letter from court so he failed to submit his documents.  The letters sent by the court to the applicant previously including the letters dated 16 April 2019, 3 May 2019 and 24 May 2019 respectively were sent to the address in Yuen Long stated in his notice of appeal filed on 11 April 2019.

15.  However, a different address in Pat Heung, Yuen Long was stated in his present summons and affirmation in support.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

16.  It is pertinent to note that the applicant had previously filed a notice of change of address for service on 6 July 2018 under HCAL 923/2018^[1].  This shows that he has been well aware of his obligation to inform the court of any change of his address for service.  The applicant has not provided any good reason why he should not bear the consequence of the delay occasioned by the ineffectiveness of the address provided by him.

17.  Furthermore, the appeal has no merits.  His grounds of appeal stated in the notice of appeal are just bare assertions without specifics or elaboration.  In his written submission, he submitted that he does not know anything about the law and received no help from any lawyer so it was impossible for him to point out any error of law. 

18.  The Court of Appeal has repeatedly stated that an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[2]. The applicant was represented by the Duty Lawyer Service up to the Director’s decision dated 17 November 2017.  He was given sufficient opportunity to state and elaborate his case before the adjudicator but he elected to remain silent after answering a few questions.  He failed to demonstrate how his case would be undermined or prejudiced by the lack of legal representation only in the appeal stage.

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review^[3].

20.  It is incumbent on the applicant to show why the court should exercise its discretion in his favour and grant relief from sanction.  We are not satisfied he has done so.

21.  Having considered all the circumstances including the interests of the administration of justice, we decline to exercise our discretion to grant relief from sanction of the Unless Order.  We therefore dismiss the applicant’s summons filed on 9 July 2019.