RE MIRZA MUHAMMAD MOHSIN

CACV 463/2018

[2019] HKCA 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 463 OF 2018

(ON APPEAL FROM HCAL NO. 1109 of 2017)

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JUDGMENT

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

1.  By summons filed on 10 January 2019, the applicant applies for relief from the sanction imposed by the unless order made by Chu JA on 16 November 2018 (“Unless Order”).

2.  By the Notice of Appeal dated 18 September 2018, the applicant sought to appeal against the decision of Campbell-Moffat J (“the Judge”) given on 7 September 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 17 July 2015 and 22 February 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 17 November 2017 dismissing the applicant’s appeal against the decisions of the Director. 

3.  On 20 September 2018, the Registrar of Civil Appeals directed the applicant to lodge with the Court two sets of appeal bundle on or before 8 October 2018.  The direction was communicated to the applicant by letter dated 21 September 2018.  The applicant did not lodge any appeal bundle by the time stipulated in the directions.  On 11 October 2018, the Registrar of Civil Appeals ordered that unless the applicant lodged with the Court two sets of appeal bundle on or before 29 October 2018, the case would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order that carried the sanction of a dismissal of the appeal.  The order was communicated to the applicant by letter dated 11 October 2018.  The applicant did not comply with the order of the Registrar of Civil Appeals. 

4.  On 16 November 2018, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter of the same day.  The Unless Order stipulated that:

“Unless by 4:00 pm on 3 December 2018 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

5.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 4 December 2018.  The order dismissing the appeal was mailed to the applicant on 6 December 2018. 

6.  On 10 January 2019, the applicant issued the present summons together with a supporting affirmation.  He also put in a written submission on 22 January 2019, which was mistakably addressed to “The Director of Immigration”.  

7.  Order 2 rule 4 of the Rules of the High Court, Cap. 4A 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.”  Since the applicant’s summons was issued more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

8.  Under Order 2 rule 5(1), 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 others, 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.

9.  In the summons, the supporting affirmation and the written submission, the applicant explained that he did not receive the letter from the Court.  It was not until two days before he made the application that he found the Court’s letter, which was placed on top of his letter box.  The applicant has not specified which Court letter it was that he found on the top of his letter box.   

10.  In the Notice of Appeal and the affirmation filed on 18 September 2018 in support of the appeal, the applicant’s address (which was typed out) was stated to be “Room/Flat B, 5/Floor, No. 6 Kaiming Street, Kowloon, Hong Kong”.  The same address was given in the Form 86 and the affirmation in support of the judicial review application.  The Form CALL-1 and the Court’s letters containing the Registrar of Civil Appeals’ direction and order and the Unless Order were mailed to this address.

11.  In the summons applying for relief from sanction and the affirmation in support of the application, the applicant’s address (which was hand written) was stated to be “4-6 Kai Ming Street 6/F Room B, Tokwawan, Kowloon, Hong Kong”.  The street number and, importantly, the floor level are different from that given in the Notice of Appeal and the affirmation in support of the appeal.  The applicant has not explained why there are these differences.  Giving the applicant the benefit of the doubt, we are prepared to accept that the Court’s letters containing the direction and order of the Registrar of Civil Appeals and the Unless Order did not reach him in good time.

12.  Having considered the circumstances of this case, we are of the view that we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.

13.  Firstly, the applicant has a duty to ensure that the address for service of documents that he provides to the Court is accurate so that documents and correspondence sent to the address will reach him in a timely manner.  As noted above, the applicant has not explained why the address he gave in the Notice of Appeal and affirmation in support of the appeal is different from that he now gave in the summons and the supporting affirmation.

14.  Secondly, and critically, for the reasons given below, the appeal has no merits. 

15.  The applicant is a Pakistani national who entered Hong Kong illegally.  After his arrest by the police on 7 October 2009, he made a non-refoulement claim based on his fear of being harmed by a person named Siddique arising out of a land dispute.  He claimed to have been attacked and badly wounded by Siddique and two persons, after which he fled Pakistan to mainland China from where he sneaked into Hong Kong. 

16.  Despite several screening interviews having been arranged for him by the Director, the applicant failed to attend any of them. Eventually the Director proceeded to assess his claim on paper.  By his decision dated 17 July 2015, the Director determined against the applicant having regard to the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.  By a further decision dated 22 February 2017, the Director also determined against him on the BOR 2 risk[4] ground.  The Board conducted an oral hearing on 2 May 2017 to hear the applicant’s appeal against the Director’s decisions.  By its decision dated 17 November 2017, the Board dismissed the appeal. 

17.  The applicant filed a Form 86 and a supporting affirmation on 20 December 2017 to apply for leave to judicially review the decisions of the Director and the Board.  The grounds for judicial review relied upon by the applicant, and the Judge’s reasons for rejecting them were set out in [11] to [15] of the Form CALL-1, [2018] HKCFI 1831 as follows:

“Grounds of review

11. The Applicant submitted the following Grounds:

1) The Director (and presumably the Adjudicator) failed to consider the concept of state acquiescence, or extended state acquiescence;

2) he made insufficient enquiry;

3) failed to provide adequate reasons as to the decisions made;

4) failed to investigate the COI material;

5) failed to place weight on relevant information;

6) placed weight on irrelevant information;

7) failed to consider a consistent system of human rights violations;

8) placed weight on irrelevant matters, or on inaccurate or incorrect facts;

9) failed to call for psychological or psychiatric reports;

10) applied the incorrect standard of proof;

11) provided no reasonable basis for rejecting the Applicant’s credibility;

12) the decision maker was not the interviewer; and

13) there was no proper basis for consideration of internal relocation.

12. In so submitting, the Applicant adopted a scatter gun approach apparently adopting as many general points as he could find without any evidential support. The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Merely reciting oft cited phrases is of little use to the court without more.

13. This was a private dispute involving one incident. I fail therefore to see on the papers agreed by the Applicant with the Adjudicator, how Grounds 1, 7, or 9 come into play. These grounds are without merit. As far as Ground 2 is concerned, the Applicant failed to attend consistently on multiple occasions and on the latter two occasions without providing any excuse. If there was further information he wished to submit for consideration he was given an opportunity to do so and could have raised new material before the Adjudicator, which he did not do. The burden is upon the Applicant to make out his case and it is not for the decision maker to guess what that case is. Ground 2 is also without merit. For the reasons given above at paragraphs 8 to 10, Grounds 3, 6, 8, 10, 11 and 13 are also wholly without merit. So far as Ground 12 is concerned the interviewer (had there been a successful interview by the Director) would have acted on behalf of the Director under a delegated power. The only interview to take place was by the Adjudicator and he made the decision of the Board. This too is without merit.

Conclusion

14. I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a very high standard of fairness throughout. The Applicant was given the benefit of the doubt on several occasions and appears to have sought to abuse the system. It ill-behoves him to now complain that material has not been properly considered when he had the opportunity to put his case but both declined to do so and affirmed that he had nothing else to submit. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant as best they could in the prevailing circumstances and considered all relevant criteria. They gave the Applicant a more than reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

18.  The applicant gave the following as his grounds of appeal in the Notice of Appeal:

(1)   The Judge wrongly exercised her discretion in that leave to apply for judicial review against the Director’s decisions was refused because the applicant did not give any explanation for the delay, and that in any event he had the opportunity of an appeal before the Board, which he had made use of to challenge the Director’s decision.

(2)   Having regard to the fact that by the time the Director’s decision was made, he had already lodged his appeal to the Board against the Director’s decision based on the torture risk, BOR 3 and persecution risk grounds, but not the BOR 2 risk ground, and that appeal against the Director’s decision should be made to the Board and not the High Court, the Judge should not have applied the time restriction.

(3)   The Court of Final Appeal had held that the right enshrined in Article 3 of the Hong Kong Bill of Rights Ordinance is an absolute and non-derogable right to which there are no exceptions.  

19.  The first and second grounds bear no relevance to the applicant’s case.  Delay is not among the reasons given by the Judge in refusing to give leave to apply for judicial review.  The third ground in the Notice of Appeal is a neutral statement.  The applicant has not explained how it is relevant to his appeal. 

20.  As for the affirmation in support of the appeal, the content is almost identical to that in the affirmation filed together with the Form 86.  It repeated the grounds for applying judicial review, which had been summarised in [11] of the Form CALL-1 (as quoted in [16] above).  All these grounds are directed at the decisions of the Director and the Board.  None of which relates to the reasons and decision of the Judge.

21.  Given that the applicant has not identified any error in the Judge’s decision and reasons, there will be no basis for the Court of Appeal to disturb the decision of the Judge.  As such, the applicant’s appeal       has no merits and is bound to fail.  This being the case, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is also not in the interest of administration of justice to grant the relief sought.     

22.  For the reasons given above, we refuse the application for relief from the sanction imposed by the Unless Order.  We dismiss the applicant’s summons.