RE KANDIARA GURSEWAK SINGH

CACV 34/2020

[2021] HKCA 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2020

(ON APPEAL FROM HCAL 1334/2018)

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J U D G M E N T

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

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 15 September 2020 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 13 October 2020 failing which his appeal would be dismissed. Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 9 May 2014 as a visitor and was permitted to remain until 23 May 2014.  He overstayed and later surrendered to the authorities on 18 June 2014.  He lodged a non-refoulement claim on the same day.

3.  The applicant’s claim was based on threats from two landowners who owned land adjacent to a plot of land owned by the applicant.  The details of the applicant’s claim have been summarised by Deputy High Court Judge Bruno Chan (“the judge”)  at [2] to [6] of the CALL-1 Form[1].

4.  By a Notice of Decision dated 15 July 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].

5.  By a Notice of Further Decision dated 5 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[5], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 3 January 2018, the Board dismissed the appeal on 28 June 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [58] of the Board’s Decision, the Board did not believe the applicant’s story.  The Board was also satisfied at [81] that internal relocation would be viable.  At [64] – [65], the Board held that there was no evidence to suggest that the police in India would fail to pursue crime or that the police would acquiesce to personal risks to the applicant.

The judge’s decision

8.  The applicant filed a Form 86 on 9 July 2018 seeking to judicially review the Director’s decisions and the Board’s Decision, which contained the following grounds for judicial review, as summarized by the judge at [12] of CALL-1 Form:

(i)  lack of legal representation for his claim under BOR 2 risk or in his appeal before the Board;

(ii)  lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(iii)  wrongful exercise of case management power on the part of the Director and the Board in their use of the relevant COI and in their balancing exercise of their consideration of the COI; and

(iv)  that the Board’s decision was made without proper translation to the Applicant to assist to have a full understanding of his case and to be able to identify any error in the decision.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [21] of the CALL-1 Form:

“13. For his complaint in Ground (1)  of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty, while his claim even on his own case does not engage BOR 2 risk at all. As such I do not find anything amiss arising from the lack of legal representation in his claim under BOR 2 risk or in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his complaint under Ground (2)  of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16. Regarding his complaint under Ground (3)  over the Board’s reliance of COI in its assessment of his claim, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the Applicant.

17. As for his complaint under Ground (4)  of not being interpreted or translated the decision of the Board it cannot per se be a valid or arguable ground for his intended challenge and must be rejected as such.

18. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

19. The fact is that it has been established by both the Director and the Board in their decisions 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 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.

20. 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. 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.”

Grounds for appeal

10.  In the Notice of Appeal filed on 22 January 2020, the applicant stated that:

(i)  the court and authorities did not exercise caution and diligence in handling him case as a self-represented litigant;

(ii)  the judge failed to appreciate the impact of the lack of language assistance.  Further, the CALL-1 Form was not read back to him in his native language;

(iii)  the judge failed to consider the significance and unfairness from the lack of language and legal assistance;

(iv)  the lack of language assistance deprived him of the right to make a full appeal from the CALL-1 Form;

(v)  the applicant wishes to have an oral hearing with an interpreter, with translation and language assistance provided to him.

11.  The applicant agreed by a letter of 22 January 2020 that the appeal could be heard by two judges.

12.  The applicant failed to comply with the unless order made by Barma JA dated 15 September 2020 whereby the applicant was required to lodge 2 sets of appeal bundle before 13 October 2020, failing which the appeal would stand dismissed.

13.  By a summons dated 4 November 2020, but only filed on 22 December 2020, the applicant applied to set aside the order dated 15 October 2020 dismissing the appeal but he did not give any ground of application.

14.  In the affirmation dated 22 December 2020, the applicant deposed that he attempted to follow the direction to lodge appeal bundles but the Civil Appeal Registry was closed due to the General Adjournment Period.  He did not receive the court letter dated 15 September 2020 and he suspected that this was due to the fact that the name of the road was missing in the address to which the court letter was sent.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on papers without an oral hearing.

16.  On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2, rule 5 of the Rules of the High Court, Cap 4A. 

17.  In The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Limited (unreported, HCMP556/2017, 25 October 2017)  at para 12, the court held that:

“Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1)  in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was)  in Top One International (China)  Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong)  Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

18.  The passage above was applied by this court in Labrador Nolito Blazado [2018] HKCA 720 at [11].

19.  The applicant has failed to supply sufficient particulars, such as dates, for his alleged attempts to lodge the appeal bundle.  As for the issue related to the address used in his correspondence with the court, we note that the address in Cheung Sha Wan (which apparently lacked the name of the road)  was provided by the applicant in the Notice of Appeal.  We have repeatedly stressed that it is the responsibility of an applicant to provide the correct address and an incorrect address supplied by an applicant is not a reasonable excuse for the failure to comply with orders or directions.  In our view, the applicant has failed to provide a satisfactory explanation for the non-compliance of the unless order.

20.  As for the merits of the intended appeal, we note that a major complaint by the applicant is the lack of legal assistance.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice.

21.  As for the alleged lack of language assistance, we note that the applicant was able to make detailed submission for his failure to lodge appeal bundles.  He was also able to file documents written in English.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

22.  The judge has in fact dealt with the complaints about the alleged lack of language and legal assistance in [13] – [17] of CALL-1 Form and we do not see any error in the judge’s reasoning.

23.  We do not consider that the intended appeal has any merit.  It is incumbent on the applicant to show why the court should exercise its discretion in his favour and grant relief from sanction.  For the reasons given above, we are of the firm view that the court should not exercise its discretion to do so.  Accordingly, the summons filed on 22 December 2020 is dismissed, with no order as to costs.