RE GAITAN HERNANDEZ ARDUL

CACV 380/2021

[2021] HKCA 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2021

(ON APPEAL FROM HCAL NO. 2949 of 2018)

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J U D G M E N T

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

1.  This is the applicant’s application for relief from the sanction imposed by the unless order made by Chu JA on 6 September 2021 (“Unless Order”).

2.  On 9 August 2021, the applicant filed a Notice of Appeal to appeal the decision given by Deputy High Court Judge P Li on 27 July 2021 refusing to extend the time for him to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”)  dated 23 July 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  dated 26 October 2015 and 5 January 2017 rejecting his non-refoulement claim. 

3.  On 9 August 2021, the Registrar of Civil Appeals gave directions in writing to the applicant requiring him, among other things, to lodge two sets of appeal bundle by 23 August 2021.  The applicant did not comply with Registrar of Civil Appeals’ direction.  Consequently, on 6 September 2021, Chu JA made the Unless Order, which was communicated to the applicant by letter of 6 September 2021.  The Unless Order stipulated that:

“Unless by 4:30 pm on 28 September 2021 the applicant lodges with the Court two (2)  sets of appeal bundle, the appeal shall, without further order, stand dismissed.”

4.  The applicant did not comply with the Unless Order.  The appeal was therefore dismissed on 29 September 2021.  The order dismissing the appeal was mailed to the applicant with a covering letter dated 6 October 2021.

5.  On 27 October 2021, the applicant issued the present summons to seek relief from the sanction imposed by the Unless Order. 

6.  Following the directions given by the Registrar of Civil Appeals gave directions on 28 October 2021, the applicant had filed an affidavit in support of his summons and also lodged with the Court two sets of application bundles and written submission. 

7.  The applicant requested in his affidavit for an oral hearing to be held to determine this application.  Having considered the application bundle and the applicant’s written submission, we consider it is appropriate to determine the application on the papers, pursuant to Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, and that an oral hearing is not required.   

8.  Order 2 rule 4 of the Rules of the High Court 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. 

9.  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.

10.  We note from the court’s record that the applicant had acknowledged receipt of the Registrar of Civil Appeal’s written directions on the lodgement of the appeal.  We further note that the Court’s letters dated 6 September 2021 communicating the Unless Order, and 6 October 2021 enclosing the order dismissing the appeal, were sent to the applicant by both ordinary post and registered post.  While the ones sent by registered post were returned uncollected by the Post Office, those sent by ordinary post have not been returned by the Post Office.  We are therefore satisfied that the applicant was aware of his obligation to lodge appeal bundles, and that he also had timely notice of the Unless Order as well as the order dismissing his appeal.   

11.  In both the summons and the supporting affidavit, the applicant has given no explanation of his failure to comply with the Court’s directions and the Unless Order. 

12.  As the applicant has provided no explanation for his non-compliance with the Court’s direction and the Unless Order, there is no proper basis for the Court to exercise its discretion to give relief from the sanction imposed by the Unless Order.  

13.  We are further of the view that, for the reasons given below, the applicant’s appeal has no merits, which is a weighty factor why the Court should not grant relief from the sanction imposed by the Unless Order.    

14.  The applicant is a Colombian national aged 38.  He entered Hong Kong on 16 October 2014 with permission to remain as a visitor until 14 January 2015.  He overstayed, and was arrested by the police on 9 June 2015.  On 11 July 2015, he made a non-refoulement claim based on fear of being harmed or killed by an organised criminal group named Cordillera because he had defaulted in the repayment of a loan owed to one of the gangsters, and also because he had refused to join the group. 

15.  By two decisions dated 26 October 2015 and 5 January 2017, the Director refused the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2] and persecution risk[3] grounds, and the further decision covered the BOR 2 risk[4] ground. 

16.  The applicant’s appeal to the Board was heard on 19 December 2017, during which the applicant gave evidence and answered questions from the Board.  By its decision dated 23 July 2018, the Board dismissed the appeal on all the applicable grounds.  Principally the Board considered that, on the evidence, the injury suffered by the applicant did not attain a minimum level of severity to amount to torture, and there is no evidence that he is still a target of the gangsters after more than four years.  The Board also found that the applicant failed to establish on the evidence a personal and real risk of harm or ill treatment or violation of his right to life upon his return to his home country.  It also held that internal relocation alternatives and state protection are reasonably available, which would reduce or negate any harm that he may face.  The Board concluded that the applicant failed to establish any of the applicable grounds.

17.  On 21 December 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decision of the Board.  Order 53 rule 4(1)  of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s application was out of time by about two months. He gave no explanation for his delay in the application.  He also did not provide any specific grounds for seeking relief, other than stating in his affirmation that the decision was unfair as he had already provided all the documents.   

18.  By his decision of 27 July 2021, the Judge refused to extend the time for the applicant to make the application for leave to apply for judicial review.  The Judge’s reasons for the decision were set out in [16] to [20] of the Form CALL-1, [2021] HKCFI 2140.  Primarily the Judge, after examining the decisions of the Director and the Board, considered there was no error or law, irrationality or procedural unfairness, and agreed with the Board that the evidence did not establish entitlements to any of the applicable grounds.  The Judge concluded that in the absence of explanation for the delay and as the intended judicial review had no reasonable prospect of success, there was no good reason to extend the time for making the application.  

19.  In this appeal, the applicant provided the following grounds of appeal in his Notice of Appeal:

(1)  The plaintiff will face hardship if he were to return to his home country.

(2)  The Board has significantly relied on news the source of which is not officially recognised, or is simply hearsay.  The lack of credible information has resulted in groundless speculations. 

20.  In his written submission in support of the present application, the applicant reiterated his case of being assaulted and verbally threatened by the Cordillera gangsters, and argued that future harm could be foreseen if he were to return to his home country.  He also stated that there is a serious human rights problem in Colombia, and argued that state protection is not available and it would be unsafe for him to relocate to other parts of the country.  The applicant further referred to the case of AH v Torture Claims Appeal Board (unreported)  HCAL 34/2016 and argued that the Director should re-open and re-screen his case considering the additional grounds that were not previously presented and recognized.  Finally, the applicant argued the Judge erred in finding there was no procedural irregularity when he was not legally represented in the hearing.    

21.  In considering the grounds of appeal and arguments put forward by the applicant, we have regard to the general principles regarding an appeal in a non-refoulement case which have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They include:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.  In light of the established legal principles set out above, we are of the view that the grounds of appeal in the Notice of Appeal and the arguments in the written submission do not constitute viable grounds of appeal. Our reasons are as follows:

(1)  Assessment of risks and harm are matters for the Director and the Board, who are the primary decision makers.  While the applicant complained that the rejection of his claim is unfair, he has not provided particulars to show in what way the Board had erred in finding that his injury did not meet the required level of severity or that it was not shown that he remains a target of the gangsters. 

(2)  Similarly, the applicant has not provided particulars to support his complaint that the Board had relied on wrong or inappropriate materials in concluding that state protection and internal relocation alternatives were reasonably available.  

(3)  The case of AH v Torture Claims Appeal Board[5] has no relevance as it is factually very different from the present case.  In that case the judicial review was disposed of by a consent order because the Board accepted that there was an error of law in its decision. 

(4)  It is established law that high standard of fairness does not mean that a non-refoulement claimant is entitled to legal representation at all stages of his claim.  Hence, the mere fact that the applicant was not legally represented in his appeal before the Board or in his application for leave to apply for judicial review does not mean that there has been procedural irregularity or unfairness.  

23.  As the applicant’s appeal has no merits, 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.    

24.  For the above reasons, we refuse the application for relief from the sanction imposed by the Unless Order, and dismiss the applicant’s summons dated 27 October 2021.