RE THAPA MAGAR PURNA BAHADUR

CACV 479/2019

[2020] HKCA 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 479 OF 2019

(ON APPEAL FROM HCAL NO. 1122 of 2018)

________________________

________________________

__________________

JUDGMENT

__________________

Hon Chu JA giving the Judgment of the Court:

1.  By the order of Chu JA made on 3 January 2020, the applicant’s appeal was dismissed for failure to comply with an unless order made on 13 December 2019 (“Unless Order”). Instead of making an application for relief against the sanction imposed by the Unless Order, the applicant filed a notice of motion on 14 May 2020 to seek leave to appeal against the order of 3 January 2020. To rectify the irregularity, the Registrar of Civil Appeals directed on 31 May 2020 that the applicant’s notice of motion be treated as an application for relief against sanction imposed by the unless order.

2.  We are satisfied that it is appropriate to deal with this application on the papers without an oral hearing, and have proceeded to do so.

3.  By a notice of appeal dated 9 October 2019, the applicant sought to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 27 September 2019 refusing his application for leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 31 July 2015 and 21 August 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 28 March 2018 dismissing his appeal against the Director’s decisions. 

4.  As part of the preparations for the appeal, the Registrar of Civil Appeals directed on 10 October 2019 that the applicant shall lodge with the Court two sets of appeal bundle on or before 28 October 2019.  The direction was communicated to the applicant by letter dated 11 October 2019. The applicant did not comply with the direction.  On 31 October 2019, the Registrar of Civil Appeals ordered that unless the applicant lodged with the Court two sets of appeal bundle on or before 18 November 2019, 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 1 November 2019.  The applicant did not comply with the order. 

5.  On 13 December 2019, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter dated 16 December 2019.  The Unless Order stipulated that:

“Unless by 4:00 pm on 2 January 2020 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

6.  The applicant did not comply with the Unless Order. Consequently, the appeal was ordered to be dismissed on 3 January 2020.  The order dismissing the appeal was mailed to the applicant by letter dated 7 January 2020. 

7.  The four letters from the Court communicating the direction and order made by the Registrar of Civil Appeals, the Unless Order and the order dismissing the appeal were all sent by ordinary post to the address provided by the applicant in the notice of appeal (“the Address”).  They had not been returned by the post office.  The letters containing the Unless Order and the order dismissing the appeal were further sent by registered mail to the Address. They were returned to the court for the reason that they were not claimed.  

8.  As mentioned in [1] above, the applicant filed a notice of motion together with an affirmation on 14 May 2020, which we would treat as an application for relief against the sanction imposed by the Unless Order.  Despite two orders made by the Registrar of Civil Appeals on 31 May and 29 July 2020, the applicant did not file a supplemental affirmation to support his application and further did not lodge with the court two sets of application bundle by the stipulated time of 24 June 2020.  In the circumstances, we would consider and determine the application on the basis of the materials before us.  

9.  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 application was made more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

10.  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.

11.  In the affirmation dated 14 May 2020, the applicant said that the notice of motion was filed late because, as a lay person, he was not aware of the procedural requirements.  There was, however, no explanation as to his failure to comply with the court’s directions made in October 2019 and the Unless Order.       

12.  Even if the non-compliance with the Court’s directions and the Unless Order was excusable, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  This is because, for the reasons given below, the appeal has no merits and is bound to fail. 

13.  The applicant is a Nepalese national who entered Hong Kong illegally. He was arrested by the police on 29 August 2009.  He later made a non-refoulement claim based on his fear of being harmed or ill-treated by the Maoists, if refouled, because he refused to join them and also because he had injured a Maoist.       

14.  By two decisions dated 31 July 2015 and 21 August 2017, the Director determined against the applicant.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds.  The second decision covered the BOR 2 risk[4] ground.  The applicant’s appeal to the Board was heard on 6 September 2017.  By its decision dated 28 March 2018, the Board dismissed the appeal on all the applicable grounds.  Principally, while the Board accepted that the applicant had been approached by the Maoists to join their party, it considered there was no evidence of the applicant being tortured or any involvement of government officials in the incidents relied on by the applicant, and state protection was reasonably available to the applicant.  The Board concluded there was no real risk of torture or harm to the applicant if he were to be return to his home country.   

15.  The applicant filed a Form 86 on 19 June 2018 to apply for leave to judicially review the decisions of the Director and the Board.  The grounds he relied on the following grounds for seeking relief:

(1)  The Director’s failed to consider and give proper weight to the existence of state acquiescence in the applicant’s case, which led to his unfair rejection of the applicant’s claim.

(2)  The applicant was tortured at the behest of the police and the state law enforcement agency.

(3)  The applicant was not given state protection.

(4)  The Director failed to give sufficient weight to the applicant’s arguments.

(5)  The Director was selective in referring to the Country of Origin Information in that he only used those that suited his purpose.

(6)  The Director failed to observe high standard of fairness in the screening process.

(7)  The Board failed to make sufficient enquiry before coming to its decision, and stated that the applicant had failed to adduce credible evidence to prove the material elements of his case.

(8)     As a torture claimant, the applicant had limited options at his disposal in adducing evidence before the Board when he was detained at the immigration detention centre.  The Board failed to give him sufficient chance to arrange relevant evidence to support his claim and his appeal.

16.  On 27 September 2019, the Judge dismissed the application for the reasons he gave in [18] to [25] of the Form CALL-1, [2019] HKCFI 2401 as follows:

“The Director’s Decision

18. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

19. The applicant’s application for leave for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

20. The applicant appeared before me. He confirmed that he was able to speak freely and tell his story to the Immigration officer fully at the screening. He was also able to do the same before the Adjudicator of the Board. The interpreter had explained the Hearing Bundle to him. His lawyer had explained the Director’s Decisions to him. An interpreter and his friend had explained the Board’s Decision to him.

21. It is obvious that as the Board did not challenge his evidence on the facts. He applied the relevant laws to those facts and came to his conclusion above.

22. It is quite obvious that those grounds above are quite irrelevant.

23. Grounds (1) to (7) are his opinion without any evidence in support of them. They do not stand.

24. Ground (8) fails as he has the burden of proof of his case.

25. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

17.  The applicant set out five grounds of appeal in the notice of appeal, which are identical to five of the grounds in the Form 86, namely, Grounds (1), (2), (5), (7) and (8) in [15] above. 

18.  These are not proper grounds of appeal.  The focus of an appeal is the correctness of the decision and reasoning of the judge below. The grounds of appeal in the notice of appeal are all directed at the Director’s or the Board’s decisions.  They do not address the Judge’s reasons for dismissing the application.  Nor have they identified any error in the Judge’s decision or reasoning.

19.  In the Notice of Motion, the applicant further stated that:

(1)  He will face hardship if he returns to his home country.

(2)  The Board relied on source of news which is not officially recognized or is simply hearsay.

(3)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decisions, which would have required the Director and the Board to give reasons justifying their decisions.

(4)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Board. 

(5)  The Judge did not apply the law properly.

20.  What was stated in the Notice of Motion are general and bare assertions with no supporting particulars.  It has not been demonstrated that they are reasonably arguable.    

21.  For the above reasons, the applicant’s appeal has no merits and is bound to fail.  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.  Accordingly, we refuse to give relief from the sanction imposed by the Unless Order, and dismiss the Notice of Motion.