RE MAMAN SANI ISSAKA alias EZEOBI EMEKA SUNDAY

CACV 288/2019

[2021] HKCA 216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288 OF 2019

(ON APPEAL FROM HCAL NO 396 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court):

1.  This is an application by a non-refoulement claimant for relief from sanction for failing to comply with an unless order made under Order 2 rule 4 of the Rules of the High Court (Cap. 4A).

2.  The applicant is a national of both Niger and Nigeria.  He is 44 years old.  He entered Hong Kong on 10 November 2013 as a visitor but overstayed. He lodged a non-refoulement claim on 30 November 2013.  He claimed that he would be harmed or killed by his mother’s Muslim relatives for his conversion to Christianity, or by the terrorist group Boko Haram in Nigeria who were targeting Christians for terrorist attacks.

3.  His claim was dismissed by the Director of Immigration (“the Director”) on 19 August 2016.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 26 January 2018.

The intended judicial review

4.  The applicant filed a Form 86 in HCAL 396/2018 and an affirmation on 12 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. Yet, no grounds for seeking relief was given in his documents. The applicant simply exhibited copies of all his previous documents and decisions of the Director and the Board.

The judge’s decision

5.  DHCJ Bruno Chan (“the Judge”) considered the applicant’s application on paper. On 13 June 2019, he held that the Board had fully analysed and evaluated the applicant’s claims and then made his findings with reasoning in details in the Board’s decision. No grounds were put forward by the applicant. Further, the applicant did not identify any error in the Board’s decision. As judicial review does not operate as a re-hearing of the applicant’s non-refoulement claim, the court will not usurp the role of the Director and the Board. With rigorous examination and anxious scrutiny, the Judge held that he did not find any error of law or procedural unfairness or irrationality in the Board’s decision, nor any failure to apply high standards of fairness. He held that he is not satisfied that there is any prospect of success in the intended leave application for judicial review^[1].

The Unless Order and the present application

6.  By a notice of appeal filed on 26 June 2020, the applicant appealed against the said decision of the Judge.  He stated:

(1)  the Judge erred in law and had failed to consider relevant facts that support applicant’s case; and

(2)  the Board’s decision contained error(s) of law, procedural unfairness and irrationality. 

7.  On 28 June 2019, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 16 July 2019 three sets of appeal bundle.  The applicant did not comply with this direction.  On 18 July 2019, the Registrar further directed that unless the applicant lodged the bundles on or before 5 August 2019, the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order with the consequence of dismissal of the appeal in the event of default of compliance.  The applicant again failed to comply with this direction.

8.  On 20 August 2019, Cheung and Chu JJA made an order that unless the applicant lodges the appeal bundles by 4pm on 30 August 2019, his appeal will be dismissed forthwith without further order (“the Unless Order”). As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 3 September 2019 pursuant to the Unless Order.

9.  On 30 September 2020, the applicant filed a notice of motion with a supporting affidavit to the Court of Appeal for “an extension of time”.

10.  On 6 October 2020, the Registrar of Civil Appeals dealt with the applicant’s notice of motion. He held that it will be treated as an application for relief from the sanction imposed under the unless order pursuant to Order 2 rule 4 of the Rules of the High Court.  He referred the matter to this Court.  He further directed that the applicant shall file and serve a supplemental affirmation in support of the application by 23 October 2020, together with written submissions by 27 November 2020.

11.  The applicant lodged two sets of application bundles.  He filed his supporting affirmation on 10 November 2020 and his written submission on 25 November 2020.

12.  In his supporting affirmation of 10 November 2020, he stated that the address he provided to the court was correct so he did not understand why he did not get letters from the court on time. He stated that his landlord went to China and therefore he did not have access to his letters during the relevant time. He stated he was uneducated. He reiterated that his torture claim was genuine.

13.  In his written submissions, the applicant stated a variety of non-refoulement legal principles and statutory reference without any particular focus on how they applied to his personal circumstances.

14.  Having considered the application bundles lodged by the applicant as well as other documents filed in the court below in, it is appropriate to determine the present application on paper without holding an oral hearing.

Our view

15.  Under Order 2, rule 5(1) of the Rules of the High Court, 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.

16.  The applicant explained in his supporting affirmation that he did not get the court letters on time due to his landlord’s absence and therefore he did not have access to his letterbox. 

17.  The obligation to provide a correspondence address that he has access to falls squarely on the applicant.  As mentioned earlier, the court had sent three separate reminders to the applicant before his appeal was dismissed.  The court also made it clear that the consequence of dismissal of the appeal may be imposed if the applicant fails to act as directed.  Under these circumstances, the applicant cannot be excused for being unaware of the rules or not having access to court letters due to his landlord’s absence.

18.  In any event, his appeal is unmeritorious.  The grounds of appeal are just bare assertions without evidence in support.  The Board was of the view that the applicant was not a witness of truth and he had failed to adduce any evidence at the court below to challenge the Board’s findings.  He has not demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

19.  For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss his notice of motion filed on 30 September 2020. We make a further order to dismiss his application to fix a date for hearing of the appeal filed on 25 November 2020 as the appeal has been dismissed due to failure to comply with the Unless Order.