RE ABDUS SALAM

CACV 125/2019

[2019] HKCA 1091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2019

(ON APPEAL FROM HCAL 1712/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung dated 8 March 2019 dismissing the applicant’s application for leave to apply for judicial review for want of prosecution. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 11 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 15 December 2016 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 8 June 2008.  He lodged a non-refoulement claim on 18 June 2008. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the Board at [9] to [21] of the Board’s Decision.

4.  By a Notice of Decision dated 15 December 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 January 2018, the Board dismissed the appeal on 11 July 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [41] of the Board’s Decision, the Board found that the applicant had fabricated all of his experiences in Bangladesh.  It thus rejected his case in its entirety.

The judge’s decision

6.  The applicant filed a Form 86 on 22 August 2018 seeking leave to apply for judicial review of the decision of the Board.  In the statement accompanying the Form 86, the applicant identified the following grounds for seeking relief:

(1)   the Board unlawfully fettered its discretion by refusing the appeal on the ground that it did not satisfy the requirement;

(2)   the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)   the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and

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

7.  Elsewhere in his statement, and in his affirmation in support of the leave application dated 22 August 2018, the applicant advanced the following grounds for judicial review:

(1)   because the hearing bundle for the hearing before the Board was provided at a late stage, some six days before the hearing, and was not translated, the applicant was confused as to what was happening at the hearing before the Board;

(2)   the late provision of hearing bundle and the lack of interpretation resulted in the Board questioning the applicant’s credibility; and

(3)   the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return to Bangladesh.

8.  The hearing before the Court of First Instance was fixed for 8 March 2019.  On that date, the applicant was absent from the hearing, and the judge dismissed his application for want of prosecution.  Although the application was dismissed, in the CALL-1 Form dated 8 March 2019, the judge directed that there should be liberty to the applicant to apply to set aside the order pursuant to RHC Order 32 rule 6.  The judge did not deal with the application on the merits.

Grounds for appeal

9.  The applicant did not apply to the judge to set aside the order under the liberty provided therein. Instead, he appealed to this court, filing a Notice of Appeal dated 13 March 2019 in which the only ground of appeal stated was that:

“The [applicant] will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  The applicant failed to comply with the direction made by this court on 3 April 2019 requiring him to lodge skeleton submissions not less than 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

11.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

12.  The hearing date on 23 July 2019 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  As we have noted, the applicant did not seek to go back to the judge under the liberty to apply mentioned in the CALL-1 Form, to seek to set aside the order dismissing his application for want of prosecution.  The position therefore is that that order stands.  But the Notice of Appeal lodged by the applicant does not address that order.  It refers to an order by which the application for leave to apply for judicial review was refused (rather than the actual order made), and the grounds of appeal stated are premised on the application for leave to apply for judicial review having been dealt with and dismissed on its merits.  This, however, was not what happened.

14.  That said, with respect to the judge, we do not think that he was right to dismiss the applicant’s application for leave to bring judicial review proceedings for want of prosecution in the circumstances of the present case.

15.  The principles applicable to dismissal for want of prosecution were summarized by Ma CJ in Wing Fai Construction Co Ltd (in liq) v Yip Kwong Robert (2011) 14 HKCFAR 935.  In that case, three typical grounds for such an application were identified at [61].  These are:

(1)   the second limb of Birkett v James: inordinate and inexcusable delay, coupled with prejudice, which includes any substantial risk that a fair trial is not possible;

(2)   abuse of process and under this head, the concept of “warehousing” (Grovit v Doctor, Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd);

(3)   breach of one or more of the underlying objectives, in particular O.1A r.1(b) (proceedings to be dealt with as expeditiously as is reasonably practicable).

16.  In the present case, the judge referred in the CALL-1 Form to Re Syed Ahmed Rafiq [2018] HKCA 178.  There, it was stated that dismissal for want of prosecution is an available course to take where there has been an abuse thus rendering it an abuse of process.  It would seem therefore, that the judge had in mind the second basis for striking out for want of prosecution when making his order. This basis would require the court to be satisfied that the applicant had no real intention to pursue his application.  However, the judge did not go on to explain the basis on which he had concluded that there was in this case an abuse of process, which is the “foundation for the exercise of the jurisdiction” to strike out for want of prosecution (see Wing Fai at [75]), beyond the fact that the applicant had not appeared at the hearing.

17.  With respect to the judge, we do not think that the mere fact that the applicant had failed to attend at the oral hearing of his application for leave to bring judicial review proceedings would, of itself, justify a conclusion that that application constituted an abuse of process, in the sense that he had no intention to pursue his application.

18.  First, this does not seem to us to be a conclusion that can properly be drawn from the mere failure of an applicant to attend a hearing on one occasion.  Unless there are additional factors that point clearly to such a conclusion, a failure to attend on the first occasion does not necessarily mean that the applicant does not intend or wish to pursue his application.  The position is likely to be different where an applicant fails to attend for hearings more than once or where an applicant fails to comply with an unless order.

19.  Second, in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing.  The applicant is given a choice between having an oral hearing (which he must request) and leaving it to the court to deal with the application on the papers.  Even where an applicant has indicated a desire to have an oral hearing, his subsequent failure to attend that hearing does not necessarily mean that he has no intention of proceeding with his application.  Rather (absent any other reason for his absence, such as illness or unforeseen circumstances preventing his attendance), it seems to us that at most, it should be regarded as a decision on his part to forego his right to the requested oral hearing, thus enabling the court to deal with his application on paper.

20.  Third, having regard to the nature of the claim in non-refoulement cases, where the applicant’s objective is to avoid being removed from Hong Kong, it seems to us to be inherently unlikely that the applicant would not wish to pursue his claim and have it dealt with on its merits.

21.  Further, as stated in [75] of Wing Fai, striking out for want of prosecution is a remedy of the last resort and it should only be used where it would be plain and obvious to do so.  If there are other measures that are more appropriate to be taken, they ought to be.

22.  In our view, where an applicant who has requested an oral hearing of his application fails to attend the hearing, the more appropriate course to take would be for the court to deal with the application on its merits based on the material already placed before it.  An alternative course might be to adjourn the hearing to a later date – if this is done and the applicant fails to appear again, striking out for want of prosecution on the basis of a lack of intention to pursue the claim might well then be justified.

23.  For the future, we think it would be preferable for applicants to be informed via the notice of hearing issued to them that where they have requested an oral hearing for their claim but fail to attend, they will be deemed to have waived their right to the requested oral hearing, and the court will proceed to consider the claim on its merits on the basis of the materials before it.  This will enable such claims to be processed without undue delay.

24.  In our view, therefore, instead of dismissing the present application for want of prosecution, the judge below ought to have treated the applicant’s absence from the judicial review hearing as having withdrawn his request for a hearing and proceeded to deal with the leave application in his absence.

25.  Further, we would observe that the provision of a liberty to apply pursuant to RHC Order 32 rule 6 does not appear to be apt.  Order 32 applies to applications and proceedings in chambers.  This was not such an application – oral hearings of applications for leave to bring judicial review proceedings are ordinarily heard in open court, and the CALL-1 Form in the present case states that the hearing was in open court.

26.  It therefore seems to us that it was not appropriate for this application to have been dismissed for want of prosecution merely because the applicant had not appeared at the hearing.

27.  It does not, however, follow that the appeal should be allowed. As we have noted, the applicant failed to comply with this court’s directions regarding the filing of written submissions, in consequence of which the hearing date of the appeal was vacated and the appeal has been dealt with on paper.  Having considered the papers before us, including the applicant’s CALL-1 Form and other material provided for the purposes of his application, we are of the view that the appropriate course to take is for the court to consider the merits of the application for leave to bring judicial review proceedings, 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 judicial review application.  Such a course is open to us pursuant to RHC Order 59 rule 10(3) and (4) by which the court has power to give any judgment or make any order which ought to have been given or made, notwithstanding any defect in any notice of appeal.

28.  So far as the judicial review application itself is concerned, it is clear that it is wholly without merit.  The grounds for relief stated in paragraph 1 of the statement accompanying the Form 86, which have been set out in paragraph 6 above, are all general complaints which bear no relation to the facts of this particular case.  They therefore provide no proper basis for the court to intervene in relation to the decision of the Board.

29.  As for the complaints elsewhere in his statement and his affirmation, these are similarly without merit.

30.  In relation to the ground based on the late provision to him of the hearing bundle before the Board, it appears that the bundle was provided within the required time frame (5 or more days prior to the hearing). Moreover, the hearing bundle would have consisted of documents with which the applicant was already familiar with such as the claim form, the applicant was unlikely to suffer any real prejudice.  We therefore do not see any substance in this complaint.

31.  We also do not accept that the late provision of the hearing bundle had caused the Board to wrongly question the applicant’s credibility.  The Board noted multiple inconsistencies in the applicant’s claim (see [38] to [42] of the Board’s Decision) and concluded that the applicant “fabricated” his claim.  The assessment of the evidence in support of the claim for non-refoulement relief is, as this court has often emphasised, a matter for the Board, and not for the court hearing an application for judicial review.  Absent any procedural irregularity or error of law, it is not open to the court to intervene in the Board’s assessment and conclusions.

32.  As for the ground based on the news articles that allegedly should not have been relied on by the Board, the applicant has failed to identify any of such articles. This is therefore also not a viable ground for seeking judicial review of the Board’s Decision.

33.  In the circumstances, the application for leave to bring judicial review proceedings has no prospects of success.

34.  As for the Notice of Appeal, the complaint about the material relied on by the Board is wholly unparticularised and is therefore without merit.  As for the claim that the applicant will face hardship if he is refouled is a bare assertion, and is in any event a question of fact which was within the province of the Board to decide.  The Board concluded that the applicant’s claim was incredible and fabricated, and no basis has been shown for thinking that this conclusion was vitiated by procedural or legal errors.  As such, this ground of appeal must also fail.

35.  There is thus no merit in the either the application for leave for judicial review or the appeal, and we therefore dismiss the appeal.