RE DAR USMAN ALI

CACV 439/2018

[2019] HKCA 209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 439 OF 2018

(ON APPEAL FROM HCAL NO. 1121 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 24 December 2018, 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 6 September 2018, the applicant sought to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 23 August 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 30 May 2016 and 5 June 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 22 November 2017 dismissing the applicant’s appeal against the decisions of the Director. 

3.  On 11 September 2018, the Registrar of Civil Appeals directed the applicant to lodge with the Court two sets of appeal bundle on or before 27 September 2018.  The direction was communicated to the applicant by letter dated 11 September 2018.  The applicant did not lodge any appeal bundle by the time stipulated in the directions.  On 9 October 2018, the Registrar of Civil Appeals ordered that unless the applicant lodged with the Court two sets of appeal bundle on or before 25 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 10 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 24 December 2018, the applicant issued the present summons together with a supporting affirmation to seek relief from the sanction imposed by the Unless Order.  Despite the direction of the Registrar of Civil Appeals given on 4 January 2019, the applicant has not put in any written submission.  

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 supporting affirmation, the applicant said that although he had received the Court’s letter, he did not understand the content and he did not know what an appeal bundle was.  He asked his friends and was told he had to provide documents to the Court, but he did not know what documents were required.  He tried to submit some documents to the Court but the staff refused to take it.  He said he did not know the consequences would be so serious and apologised for his language incompetency.   

10.  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.

11.  Firstly, the applicant had twice failed to comply with the Registrar of Civil Appeal’s directions to lodge appeal bundle before the Court made the Unless Order.  If he had difficulty understanding the Court’s directions and orders, he should, apart from enquiring with friends, make enquiries with the Court.  We therefore do not find his explanation for the non-compliance with the Court’s directions and the Unless Order satisfactory.

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

13.  The applicant is a Pakistani national who entered Hong Kong illegally.  After his arrest by the police on 10 December 2013, he made a non-refoulement claim based on his fear of being harmed by his paternal uncle named Misbah arising out of a land dispute between the uncle and the applicant’s father.  He claimed Misbah’s son had once fired at him and injured his leg.  Fearing for their safety, the applicant’s father arranged for the applicant and his brother to leave Pakistan for Hong Kong, passing through mainland China, in 2013 and 2008 respectively. 

14.  By his decision dated 30 May 2016, 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 5 June 2017, the Director also determined against him on the BOR 2 risk[4] ground.  The Board conducted an oral hearing on 29 June 2017 to hear the applicant’s appeal against the Director’s decisions.  By its decision dated 22 November 2017, the Board dismissed the appeal. 

15.  The applicant filed a Form 86 and a supporting affirmation on 21 December 2017 to apply for leave to judicially review the decisions of the Director and the Board.  The application was listed for hearing on 5 June 2018 which was adjourned to 8 June and then 19 June 2018 to enable the applicant to confirm his grounds for the application.  By his decision dated 23 August 2018, the Judge refused to give leave to apply for judicial review.  The applicant’s grounds for judicial review, and the Judge’s reasons for rejecting them were set out in [27], [28], [32] to [37] of the Form CALL-1, [2018] HKCFI 1893 as follows:

“Grounds of judicial review

27. In Enclosure 2 of Form 86, the Applicant complained the Director failed to properly consider the issues of state acquiescence; failed to appreciate the misconduct of the Pakistan police; failed to appreciate the corruption and incompetence of the administration in Pakistan; failed to consider state instigation and the absence of state protection; failed to properly consider relevant country-of-origin information (“COI”); cherry-picked information; being unfair; rendered unreasonable decisions.

28.  Regarding the Adjudicator, the Applicant accused the Adjudicator failed to make sufficient inquiry; failed to appreciate his limitation in adducing proof; failed to give him sufficient chance to arrange evidence.”

“Discussion

32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. [6]

34.  The Applicant said he had been detained by the Immigration Department and that affected his proving his claim. However, the Director confirmed in his letter dated 21 June 2018 that the Applicant had been released on recognizance since 25 January 2014. There was no evidence he was further detained.

35.  There are other complaints by the Applicant against the Director and the Adjudicator. They lacked specifics. The Applicant failed to elaborate his complaints in court even though he was so invited.

36.  I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant's complaints.

Conclusion

37.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

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[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras. 44-45.”

16.  The applicant stated the following in the Notice of Appeal:

(1)  He stood by the grounds for judicial review contained in Enclosure 2 of the Form 86 and as set out in [27] and [28] of the Form CALL-1.

(2)  He disagreed with the Judge’s refusal of his application on the basis that his grounds were vague.  There was no reasonable opportunity provided to him to elaborate on the points.

(3)  He reserved his right to elaborate the points further in his skeleton submission and oral hearing.  

17.  These are not viable grounds of appeal.  While he maintained his grounds for judicial review and disagreed with the Judge’s decision, the applicant has not identified any errors in the Judge’s reasons.  We had read the applicant’s grounds for judicial review.  We agree with the Judge that they are general statements with no particulars.  We also note that the Judge had twice adjourned the hearing to allow the applicant time to confirm his grounds.  We do not accept his complaint that there was no reasonable opportunity to elaborate on his grounds.  Further, as pointed out by the Judge, the applicant has since January 2014 been released on own recognizance.  By the time the appeal to the Board was heard, the applicant had more than three years to gather supporting evidence.  The Judge was clearly correct in rejecting his assertion that his detention had prevented him from proving his claim. 

18.  Although the applicant reserved his right to elaborate his points in the skeleton submission, he did not lodge any written submission despite being directed to do so by the Registrar of Civil Appeals.

19.  As 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.     

20.  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.