ALTAF AMIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 209/2020

[2021] HKCA 1526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2020

(ON APPEAL FROM HCAL NO 1702 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  We are concerned with two applications made by a non-refoulement claimant who seeks relief from sanction for failing to comply with an unless order and the setting aside of the unless order.

2.  The applicant is a national of Pakistan.  He is 31 years old.  He claims that he sneaked into Hong Kong by boat on 11 July 2016.  He was arrested by the police on 16 July 2016.  He raised a non-refoulement claim on 18 July 2016 on the basis that he will be harmed or killed by his uncle if he returns to Pakistan.

3.  His claim was dismissed by the Director of Immigration (“the Director”) on 19 December 2016.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 4 July 2018. 

4.  On 21 August 2018, the applicant filed a Form 86 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any specific grounds for his intended challenge.

5.  His leave application was dismissed by Deputy High Court Judge K W Lung on 10 June 2020^[1].  He filed a notice of appeal on 22 June 2020 against the said decision of the judge.

6.  On 21 July 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 18 August 2020 three sets of the appeal bundle.  The applicant did not comply with this direction.  On 29 September 2020, the Registrar made an unless order requiring the applicant to lodge the bundles on or before 22 October 2020, 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 to the effect that the appeal would be dismissed for non-compliance with the order.  The applicant again failed to comply with this direction.

7.  On 2 November 2020, Kwan VP made an order that unless the applicant was to lodge three sets of the appeal bundle by 4 pm on 16 November 2020, the appeal would be dismissed immediately without further order (“the Unless Order”).  The applicant did not lodge any appeal bundle by the prescribed time and his appeal was dismissed on 16 November 2020 pursuant to the Unless Order.

8.  On 30 April 2021, the applicant filed a notice of motion for setting aside the Unless Order and for extension of time to lodge the appeal bundles.

9.  On 3 May 2021, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of High Court, Cap 4A (“the RHC”), by way of summons supported by affirmation.

10.  On 12 May 2021, the applicant filed a summons with an affirmation in support to apply for relief from the sanction imposed by the Unless Order.  He also lodged written submissions on 25 June 2021.  Pursuant to the directions of the Registrar of Civil Appeals, the summons will be considered together with the notice of motion.

11.  Having considered the written submissions and the affirmations lodged by the applicant, this court consider it appropriate to determine the applications on paper without holding an oral hearing.

Grounds of appeal

12.  The applicant’s grounds of appeal stated in the notice of appeal are that the gravity of his circumstances have not been weighed or realized by the putative respondents in considering his non-refoulement claim and that he should be given an opportunity to plead his case properly.

13.  In his written submissions, he reiterated the danger he may face if he returns to Pakistan and contended that the Director and the Board believed in the country of origin information which does not reflect the real picture of Pakistan.

The Unless Order

14.  In the notice of motion, the applicant seeks to set aside the Unless Order and an extension of time to lodge the appeal bundles.  The proper course that the applicant should take is to apply for relief from the sanction for failure to comply with the Unless Order: Re Darlami Bharat Kumar [2020] HKCA 933.  The applicant subsequently filed a summons for relief from sanction pursuant to the directions of the Registrar of Civil Appeals. His application for extension of time will be dealt with below in considering the summons.

15.  The applicant does not have any viable ground for setting aside the Unless Order.  His stated that he only became aware of the Unless Order recently.  This has nothing to do with whether the Unless Order was wrongly made or not.  The applicant had repeatedly failed to lodge the appeal bundles pursuant to the directions of the court.  Such repeated failures hampering the prosecution of the appeal constitutes failure to prosecute his appeal with due diligence^[2]. Under such circumstances, it is appropriate to make the Unless Order. 

16.  We therefore dismiss the notice of motion filed on 30 April 2021 to set aside the Unless Order. 

Relief from sanction

17.  Pursuant to Order 2 rule 4 of 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.

18.  Under Order 2 rule 5(1) of the RHC, when dealing with an application for relief from the sanction imposed for the failure to comply with a court order, the court shall consider all the circumstances, including the interests of the administration of justice, whether the application for relief has been made promptly and whether there is good explanation for the failure to comply.

19.  The appeal was dismissed on 16 November 2020 for failure to comply with the Unless Order.  The applicant filed the notice of motion and the summons several months later, well out of the period of 14 days stipulated under Order 2 rule 4.

20.  The applicant stated in his supporting affirmation that he does not understand English, does not understand the documents, does not know how to make an appeal bundle and could not locate his friend whom he had previously relied on about what was needed to be done. 

21.  The court had sent a letter to the applicant’s address by post on 2 November 2020 notifying him of the Unless Order.  Moreover, as mentioned above, the court made two orders previously on 21 July 2020 and 29 September 2020 requiring him to lodge appeal bundles before making the Unless Order.  The court also made clear in the two orders that should he fail to act as directed an unless order may be imposed with the consequence of dismissal of the appeal for non-compliance.

22.  Under these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions and taking no reasonable steps to find out what was going on after receiving the directions from the court and what he needed to do to proceed with his appeal. 

23.  Furthermore, this appeal is unmeritorious.  The applicant’s grounds of appeal and submissions are just bare assertions without evidence in support.  He failed to demonstrate that the judge had made any error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

24.  For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 12 May 2021.

[1] [2020] HKCFI 1107

[2] Re Darlami Bharat Kumar [2020] HKCA 933 at §15