RE SERPUJA THAM

CACV 166/2019

[2019] HKCA 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2019

(ON APPEAL FROM HCAL NO 480 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  The applicant applied by a Notice of Motion on 13 June 2019 for leave to appeal to the Court of Final Appeal in respect of the dismissal of his appeal by a single judge of this court on 6 June 2019 by reason of his failure to comply with an unless order made on 21 May 2019. On 8 October 2019, the Court in the exercise of its discretion directed that it would regard the Notice of Motion as an application under Order 2 rule 4 of the Rules of the High Court for relief from the unless order, and allowed the applicant time to file and serve any relevant documents. On 21 October 2019 the applicant filed written submissions (dated 18 October 2018, presumably a typographical error) and on 7 November 2019 he filed an affirmation.

Background

2.  By a Notice of Appeal dated 3 April 2019, the applicant sought to appeal against an order of DHCJ Bruno Chan (“the Judge”) given on 29 March 2019 whereby it was ordered that leave to apply for judicial review of his non-refoulement claim be refused (see [2019] HKCFI 259). 

3.  By letter on 4 April 2019, the Registrar of Civil Appeals directed the applicant to lodge with the court two sets of appeal bundles on or before 23 April 2019 (“the Registrar’s directions”).  The Registrar’s directions were mailed to the applicant at the address typed on his Notice of Appeal.  The letter was not returned to the court. 

4.  The applicant failed to comply with the Registrar’s directions by the date stipulated in the directions.  By letter on 29 April 2019, the Registrar further directed that unless the applicant complied with the directions on or before 16 May 2019, the case would be referred to the Court of Appeal for consideration of the appropriate sanction, expressly “including the imposition of an unless order of which the consequence of default will be dismissal of the appeal” (“the Registrar’s further directions”).  The Registrar’s further directions were mailed to the applicant at the address typed on his Notice of Appeal.  The letter was not returned to the court.     

5.  The applicant again failed to comply with the Registrar’s further directions. 

The Unless Order

6.  By letter on 21 May 2019, having regard to the applicant’s default, a single judge of this court (Yuen JA) made an unless order that “unless by 4:00 pm on 5 June 2019 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further notice, stand dismissed” (“the Unless Order”).  Prior to the Unless Order being mailed to the applicant, clerical staff of this court enquired with the applicant by telephone whether a floor level should be included in the address, as no floor level had been included in the address typed on his Notice of Appeal.  The applicant then informed the staff that his address should have included “2^nd floor” (“the amended address”).  The Unless Order was consequently mailed to the amended address.  The letter was not returned to the court.

7.  On 27 May 2019 the applicant filed a Change of Address setting out the amended address.  However, he still failed to comply with the Unless Order. Consequently, the appeal was dismissed on 6 June 2019.  The order dismissing the appeal was mailed to the applicant at the amended address on 10 June 2019.

The Notice of Motion

8.  On 13 June 2019 the applicant filed the present Notice of Motion for leave to appeal to the Court of Final Appeal, setting out the following statements as grounds of appeal:

“1) The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on the 29/05/19 refusing my application for Judicial Review.

2) The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Decision of the Director whereby the Director was required to give reasons justifying the decision.

3) Procedural unfairness”

Discussion

9.  However as noted above, this court had not considered the merits of the appeal, so those grounds of appeal were completely irrelevant.  The court had dismissed the appeal because the applicant had failed to comply with the Unless Order, so the correct procedure was for the applicant to have applied under Order 2 rule 4 for relief.

10.  Order 2 rule 4 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”.  The time limit here was therefore 19 June 2019.

11.  Since the Notice of Motion was filed within that time limit, and since the applicant was not legally represented, this court has in the exercise of its discretion treated the Notice of Motion as the applicant’s application for relief and gave him further time to file documents in support, which he has done.  We have perused all the documents he has lodged and consider it appropriate to consider this application on the papers.

12.  The principles relevant to an application for relief under Order 2 rule 4 are set out in Order 2 rule 5. The court will consider all the circumstances including the following factors relevant to this case: (a) the interests of the administration of justice, (b) whether the application for relief has been made promptly, (c) whether the failure to comply was intentional, (d) whether there is a good explanation for the failure to comply, (e) the extent to which the applicant has complied with other rules and court orders, and (g) whether the applicant was unaware of the court order, or if he was aware of it, whether he was able to comply with it without legal assistance.

13.  Starting first with factor (b), we would assume in favour of the applicant that the application for relief has been made promptly as the Notice of Motion was filed within the time limit for an application for relief.  In relation to factor (e), we are also prepared to give the benefit of the doubt to the applicant that he had failed to comply with the Registrar’s directions and the Registrar’s further directions because they had been sent to an incomplete address, even though it was the applicant himself who was responsible for providing an incomplete address in the first place.  However, in relation to factors (c), (d) and (g), the applicant has failed to provide any explanation at all in his affirmation (or even in his written submissions) for the failure to comply with the Unless Order which, as noted above, was mailed to the applicant’s amended address, as confirmed by his Change of Address filed on 27 May 2019.

14.  As for factor (a), we have considered the Judge’s decision, the Notice of Appeal and all the documents lodged by the applicant.  Essentially the applicant’s claim for non-refoulement was based on his fear that his creditor PD would harm or kill him for failure to repay a loan.  He alleged that on one occasion in late 2013, two men who came to his house with PD had beaten him with wooden sticks even though they had knives with them.  He did not report the assault to the police as he said the police would not provide him with any assistance.  He then moved to Pokhara and Kathmandu where he stayed for a total of more than a year without further incident.  However when he learned that PD was still looking for him in his home town, he decided to come to Hong Kong in July 2015 where he overstayed until he was arrested in October 2015.  He claimed he could not relocate to other places in Nepal as PD was a supporter of the Unified Maoist Village Committee and could locate him.

15.  The applicant’s claim for non-refoulement was rejected by the Director on 22 June 2016 and 10 July 2017 (in relation to BOR2 risk), and subsequently by the Torture Claims Appeal Board before which he appeared and gave evidence on 15 November 2017.  On 23 February 2018 the Board rejected his claim.  In its Decision, the Board noted the following factual matters.  The applicant accepted that when he took out the loan, he knew he would not be able to repay it and yet he proceeded, which indicated that he was not in fear of PD’s influence [48].  The Board did not consider the assault on the applicant serious, since the assailants did not use the knives which they allegedly had with them [55].  The applicant made a report to the police to seek their assistance, and had no evidence to support his allegation of police corruption other than what he had heard from other people [58].  He was clearly able to live in safety in other parts of Nepal for more than a year [67].  PD could also confiscate his house as a means of enforcing his loan but had not done so [68].  The applicant’s dispute with PD was a private one, and he was able to obtain a passport and leave the country without obstruction from any state authorities [81].

16.  The applicant filed an application for leave to apply for judicial review on 23 March 2018.  The Judge dismissed the application for reasons set out in paragraphs [13] - [17] of his decision, set out below:

“13. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to do with his claim, or how did the adjudicator fail to give him time or opportunity to produce relevant evidence for his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his application now before me he did not produce any further evidence or representation regarding his claim which he would have put before the Board that could advance his claim. As such I am unable to find any basis or merit in any of these complaints of the applicant.

14. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

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

16. 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.

17. 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.”

17.  In the applicant’s Notice of Appeal from the Judge, he stated the following grounds of appeal:

“1 The Learned Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration and the Adjudicator.

2 The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

3 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.

4 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.

5 The Learned Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Decision of the Director whereby the Director and Adjudicator was required to give reasons justifying the Decision.”

18.  These grounds of appeal are vague and do not address the point that the Board’s rejection of his claim was based on factual findings which the Board was entitled to arrive at, as correctly noted by the Judge.  We can see no ground on which this court could interfere with the Judge’s refusal to give leave.  Consequently, we do not consider that this is a case where factor (a) applies to merit relief from the Unless Order.

19.  Consequently in the exercise of our discretion, we dismiss the Notice of Motion which, as indicated above, we have taken as the applicant’s application for relief from the Unless Order under Order 2 rule 4.  Accordingly, the dismissal of the appeal stands.