RE SHAIKH NIZAMUDDIN

CACV 288/2025, [2026] HKCA 300

On Appeal From [2025] HKCFI 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288 OF 2025

(ON APPEAL FROM HCAL NO 359 OF 2020)

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J U D G M E N T

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

1.  This is the applicant’s application by a summons filed on 29 July 2025 (“the Summons”) for relief from the sanction imposed by an unless order dated 7 July 2025 (“the Unless Order”).

2.  Having considered the documents and application bundle lodged by the applicant in this application as well as the documents filed in the Court below, we regard it as appropriate to determine the present summons on paper without an oral hearing.

Background

3.  The matter arose from the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 8 May 2025 ([2025] HKCFI 1830) (“the Leave Decision”) refusing to grant extension of time and dismissing his application for leave to apply for judicial review (“the Leave Application”).

4.  In short, his intended judicial review challenged against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 7 April 2017 (“the Board’s Decision”), whereby the Board allowed the applicant’s request for withdrawal and dismissed his appeal against the decision of the Director of Immigration dated 23 June 2016, refusing his non-refoulement claim.  Details of the applicant’s background, his non-refoulement claim, the Board’s Decision as well as the Judge’s reasons for refusing the Leave Application are all set out in the Leave Decision, which we will not repeat herein.

5.  By the Notice of Appeal filed on 13 May 2025, the applicant appealed against the Leave Decision, claiming that it was reached unfairly without giving him the opportunity to clarify his case and that the situation in his country remained unsafe for him to return.

6.  On 13 May 2025, the Registrar of Civil Appeals directed, inter alia, that the applicant should lodge with the court two sets of appeal bundle on or before 27 May 2025.  The applicant acknowledged receipt of these directions in writing on the same day.  However, he failed to comply with the directions.

7.  On 11 June 2025, Au JA made an order that unless the applicant lodged the appeal bundles by 4pm on 25 June 2025, his appeal would be automatically dismissed without further order.  By a letter dated 26 June 2025, the applicant wrote to the court stating that he was late in submitting the appeal bundles as he could not get some of the alleged relevant documents.

8.  On 7 July 2025, Au JA made the Unless Order that unless the applicant lodged the appeal bundles by 1pm on 11 July 2025, his appeal would be automatically dismissed without further order.  As the applicant still did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 11 July 2025.

9.  On 29 July 2025, the applicant filed the Summons, requesting for relief against the Unless Order.

10.  Pursuant to the directions of the Registrar of Civil Appeals made on 2 August 2025, the applicant filed his supporting affirmation on 12 August 2025, where he claimed that he had no legal knowledge and no income in Hong Kong.  As such, he had no choice but to seek help from others, and when he finally found help, the deadline had already passed.

Legal Principles

11.  Pursuant to Order 2, rule 4 of the Rules of the High Court (Cap 4A) (“the 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: see Ahammed Md Robin v Torture Claims Appeal Board [2020] HKCA 140 at [17] and The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Ltd HCMP 556/2017, 25 October 2017 at [12].

Discussion

13.  Having considered the circumstances of this case, we will not exercise our discretion to grant relief from the sanction imposed by the Unless Order.

14.  As a start, the directions of the Registrar of Civil Appeals dated 13 May 2025 were communicated to the applicant and he had acknowledged receipt of those directions in writing on the same day.  The applicant must be well aware that he should lodge two sets of appeal bundle on or before 27 May 2025.  Although he claimed that he was uneducated, had no income and needed to seek help from others and thus failed to comply with the court’s directions and orders, those are not only bare allegations without any evidence in support, but are also not justifiable excuses for non-compliance with the court’s directions and the Unless Order.

15.  Second, and critically, for the reasons given below, his intended appeal has no merits.

16.  Nowhere in his Notice of Appeal did the applicant identify any error in the Leave Decision with sufficient particulars and specifics.  The contentions raised by the applicant in his Notice of Appeal were all vague, bare and general in nature.  General and bare assertions of his fear if refouled do not constitute valid grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Clearly, his assertions do not constitute viable grounds of appeal and must fail.  We see no basis to disturb the Leave Decision.

17.  In the circumstances, as the applicant’s intended appeal has no merit and is bound to fail, it would be futile to grant relief and allow the applicant to proceed with the intended appeal.  It is also not in the interest of administration of justice to grant relief. 

18.  Accordingly, the Summons filed on 29 July 2025 is dismissed.