RE AHAMMED MOHAMMED TAHANBIR

CACV 550/2018

[2020] HKCA 1059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 550 OF 2018

(ON APPEAL FROM HCAL NO. 1165 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is an application by the applicant for relief from sanction for failing to comply with an unless order.  The matter arose in this way.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 14 May 2014 and was arrested by the police on the same day.  He raised a non-refoulement claim on 16 May 2014.  He claimed that he would be harmed or killed by members of the Awami League if he was to return to Bangladesh because of his refusal to join their political party.

3.  His claim was dismissed by the Director of Immigration (“the Director”) on 7 July 2017 by a notice of decision (“the Director’s Decision”).  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 3 November 2017 (“the Board’s Decision”).

4.  On 29 December 2017, the applicant filed his Form 86 to apply for leave to apply for judicial review against the Board’s Decision (“JR Leave Application”).  A hearing for his JR Leave Application was fixed on 8 November 2018 but the applicant was absent.  Deputy High Court Judge KW Lung (“the Deputy Judge”) thereby dismissed the JR Leave Application.  He later handed down the Form CALL-1 dated 27 November 2018 explaining the reasons (“the Deputy Judge’s Decision”).

5.  On 20 November 2018, by way of a notice of appeal, the applicant appealed against the Deputy Judge’s Decision.

6.  On 7 March 2019, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 13 March 2019 three sets of appeal bundle.  The applicant did not comply with this direction.  On 15 March 2019, the Registrar further directed that the applicant should lodge the bundles on or before 3 April 2019.  The applicant also failed to comply.  On 8 April 2019, the Registrar further extended the deadline for the applicant to lodge the bundles on or before 24 April 2019, failing which 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.

7.  On 23 May 2019, Au JA made an order that unless the applicant lodged the appeal bundles on or before 6 June 2019, his appeal will be dismissed without further order (“the Unless Order”).  As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 6 June 2019 pursuant to the Unless Order (“June 2019 Order”).

8.  The applicant filed the present summons and a supporting affirmation on 20 August 2020, more than a year after the June 2019 Order, to apply for relief from sanction for failing to observe it.

9.  On 23 September 2020, the Registrar gave directions for the filing of evidence and the lodging of submissions and an application bundle for this summons.  The Registrar further stated that upon consideration of the documents lodged as directed, the Court of Appeal will decide whether to determine the summons on paper or hold a hearing.  The applicant filed his supporting affirmation on 17 September 2020.

10.  On 2 November 2020, the Registrar further directed that the applicant shall lodge two sets of revised application bundles to include missing items on or before 16 November 2020.  The applicant only lodged two sets of revised bundles on 17 November 2020.

11.  Having considered the application bundles lodged by the applicant as well as other documents filed in the present proceedings and those filed in the court below, we regard it as appropriate to determine the present summons on paper without an oral hearing.

The grounds of appeal in CACV 550/2018

12.  The grounds of appeal in the notice of appeal are that the applicant will face hardship if he is to return to his home country and that the Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay or are outdated cases.  The applicant says the lack of credible source of information has resulted in the Board’s groundless speculation.

Legal Principles

13.  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.

14.  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, per Kwan VP at [17] and The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Ltd HCMP 556/2017, 25 October 2017, per Lam VP at [12].

Discussion

15.  This appeal was dismissed on 6 June 2019 for failure to comply with the Unless Order.  The summons dated 20 August 2020 was filed far beyond the stipulated period of 14 days under Order 2, rule 4 of the RHC.

16.  The applicant explained in his affirmation that he only received the June 2019 Order on 18 August 2020 after being informed by an immigration officer.  He claimed that he had been using the same address as that in his Form 86.  He stated that he had written down the correct address in his notice of appeal.  He speculated that, since his letters were usually passed on to him by his landlord who had gone to Mainland China, it might be the reason why he did not receive the June 2019 Order in time.  He further claimed that there was a good ground to reverse the Board’s Decision and asked for this Court to exercise discretion to lift the sanction.

17.  In fact, in the applicant’s Form 86, his address was at “Room E, 1^st Floor, 235-243 Lai Chi Kok Road, Sham Shui Po, Kowloon, Hong Kong” whilst his address in the notice of appeal was a different one at “Room B, 5^th Floor, 18 Shanghai Street, Jordan, Hong Kong”.  The latter address was used by the court to communicate with him, notifying him of the Registrar’s directions, the Unless Order and the June 2019 Order.  Yet, in his summons for relief from sanction, he provided another address at “Room B, 4/F, 23A Lock Road, Tsim Sha Tsui, Kowloon, Hong Kong”. Nevertheless, he has not filed a notice of change of address for service with the court[1].

18.  The Court of Appeal has repeatedly stressed that it is the duty of a litigant to give the court a correct address so that correspondence or notice sent to his address 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 shoulders of the litigant: see Re Hasmi Rizwan Imran [2018] HKCA 439, per Lam VP, at [15].

19.  Therefore, we are not satisfied that the applicant had provided cogent explanation for such a lengthy delay in seeking to apply for relief from sanction and why he failed to comply with the Unless Order in the first place.

20.  Further, his appeal has no merits.

21.  The applicant in his notice of appeal sought to set aside the Deputy Judge’s order for dismissing his JR Leave Application for want of prosecution.  In the Deputy Judge’s Decision, the Deputy Judge relied on Re Syed Ahmed Rafiq [2018] HKCA 178 and dismissed the applicant’s JR Leave Application on the sole basis that he was absent from the hearing.

22.  However, as previously held by this Court (Lam VP, Barma and Au JJA) in Re Abdus Salam [2019] HKCA 1091 at [13] - [26], it was not appropriate for the judge to dismiss the leave application on the basis of want of prosecution simply because the applicant did not attend the hearing.  The more appropriate course would be to proceed to deal with the merits on papers.

23.  Having said that, we are of the view that the appropriate course to take is for this Court to consider the merits of the applicant’s JR Leave Application, as there would be no point in allowing the appeal and remitting the matter to the Court of First Instance if there is no merit in the JR Leave Application: Re Abdus Salam, per Barma JA at [27].

24.  The applicant’s intended judicial review was against the Board’s Decision.  The Board dismissed the applicant’s appeal on the grounds that (a) the applicant had failed to provide credible evidence in the key events (paragraphs 21 - 30 of the Board’s Decision); and (b) both state protection and internal relocation were available to the applicant (paragraphs 31 - 39 and 67 - 71 of the Board’s Decision).

25.  In the applicant’s Form 86 and his supporting affirmation, he advanced the following grounds:

(1)  The Board had unlawfully fettered its discretion;

(2)  The Board acted in a procedurally unfair manner;

(3)  The Board’s Decision was unreasonable in the public sense or is a result of procedural errors or unfairness;

(4)  The Board failed to meet greater care and duty owed to a self-represented claimant;

(5)  The hearing bundle from the Director was given to the applicant late;

(6)  The applicant had no legal or language assistance; and

(7)  The Board had relied on source of news that were not credible.

26.  In relation to grounds (1) - (4) and (7) as set out above, they are all bare and general assertions containing several key words and phrases but without any particulars, specifics or elaborations as to how they applied to his case.  As such we do not find any of them reasonably arguable for his intended challenge.

27.  As to his complaint about the late service of the hearing bundle under ground (5), other than a bare assertion, this is not supported by any evidence such as the date of the covering letter that accompanied the hearing bundle.  In any event, we note that most of the relevant documents, including his non-refoulement claim form, records of his screening interviews and the Director’s Decision, are documents that the applicant should be well familiar with.  Moreover, he never raised any issue at the hearing before the Board about the alleged late service of the bundle, or requested the Board for further time to enable him to better prepare for his appeal.  In the premises, this ground cannot possibly constitute a reasonably arguable basis to challenge the Board’s Decision.  This ground is equally without merit.

28.  As to his alleged lack of language and legal assistance under ground (6), this court has emphasised repeatedly that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah [2018] HKCA 14; [11] of Re Zahid Abbas [2018] HKCA 15; [11] of Re Tariq Farhan [2018] HKCA 17; and [13] of Re Lopchan Subash [2018] HKCA 37.  In this respect, he was provided with legal representation under the Duty Lawyer Scheme in relation to his claim before the Director.  Further, we note that all the court documents, including the affirmation filed in support of the JR Leave Application, the notice of appeal, and the affirmation in support of this summons, were written in English and canvassed with legal points.  In the premises, it is clear that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of language assistance. This proposed ground of challenge is hopeless too.

29.  In the circumstances, the applicant’s JR Leave Application is without merit, and so is the case for his appeal.

Disposition

30.  For the above reasons, we decline to exercise our discretion to grant relief from sanction.  We therefore dismiss the summons filed on 20 August 2020.