RE AHMED SYED RAFIQ

CACV 272/2017

[2018] HKCA 178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2017

(ON APPEAL FROM HCAL NO 204 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application to seek relief from the dismissal of the appeal on account of the applicant’s failure to comply with the order made by Lam VP on 19 December 2017 that the appeal be dismissed unless the applicant lodged appeal bundles before 2 January 2018. The appeal is against the decision of Deputy High Court Judge Woodcock on 17 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Pakistan to Hong Kong via a boat from Shenzhen on 15 August 2013. On 11 September 2013, he surrendered to the police and claimed to have lodged a refugee application. On 14 March 2014 he submitted his non-refoulement claim. His claim was based threats from local gangsters who were members of Muttahida Quami Movement. He refused to pay them protection money and he was blamed by them for the death of one of their members. He also alleged collusion between the gangsters and local police.

2.  The Director decided against the claims on 25 February 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 23 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 6 January 2017, the Board dismissed the appeal on 31 March 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director Decision, Further Decision and the Board Decision.  The Form 86 filed by the applicant on 12 May 2017 did not give any ground for judicial review.  In his affirmation of 12 May 2017, he relied on the following grounds,

(1)   Lack of legal representation in the determination of his BOR2 risk and in the Board;

(2)   All the correspondence with the authorities were in English.  The applicant should have been provided with an interpreter;

(3)   He could not understand the letter from the Director inviting him to provide further information about BOR2 risk.

5.  Notwithstanding that an oral hearing was held on 19 September 2017 (and the applicant was notified of the same by a notice of hearing dated 17 August 2017), the applicant did not attend the hearing.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [23] to [28] of the CALL-1 Form of 17 November 2017,

“ 23. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.

24. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

25. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. As the applicant is absent I am unable to confirm if he approached the duty lawyer scheme and if they assessed the merits of his appeal. This ground is not reasonably arguable.

26. The second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and was too technical for him. He provides no further particulars. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation “so as to avoid jeopardising my rights”. I know from the Director’s Notice of Further Decision that the applicant did provide further information to the Director as invited which meant he understood the letter and invitation. I am unable to decipher what was too technical for him. He provides no particulars. This ground is not reasonably arguable.

27. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

28. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 27 November 2017, the applicant repeated the grounds in his affirmation dated 12 May 2017.  He further submitted that he was absent from the hearing before the judge because he did not receive any notice of hearing.  He only learnt about the hearing when he received the CALL-1 form and sealed order.  He also confirmed the address he provided to the Court was accurate.

7.  The applicant agreed by a letter of 28 November 2017 that the appeal can be heard by two judges.

8.  On 30 November 2017, the Registrar of Civil Appeals made a direction that the applicant should lodge 2 sets of appeal bundle within 14 days from the receipt of the directions.

9.  The applicant did not lodge any appeal bundle. On 19 December 2017, the Court gave the direction that unless the applicant lodge appeal bundles by 2 January 2018, the appeal shall be dismissed on 3 January 2018 without further order.  The applicant did not comply with this order and the appeal was dismissed on 3 January 2018.

10.  On 6 January 2018, the applicant wrote a letter addressed to the Clerk to the Registrar of Civil Appeals asking for a “reconsideration”.  He said that he obtained the letter of 30 November 2017 “a few days ago” when he checked his mail at an address in Wing Ning Sun Tsuen. This address was his “temporary address at the time of the lodgement (sic) of the appeal”.  He sent a letter to the Court as soon as he moved to his new address in Shek Wu Tong.  He tried to lodge the appeal bundles but the staff at High Court Registry told him he was too late and they refused to accept the bundle.

Legal principles

11.  It has been held at [15] in Re Antonythasan Sajeeth Pirasanth (unreported, CACV 273/2012, 13 August 2014) that “It is wrong to leave an appeal outstanding when the Applicant did not discharge his responsibility in prosecuting the same.”  The applicant in that case failed to submit the appeal bundle and the Court made an order that the appeal would be dismissed automatically without any further hearing unless the applicant lodge his bundle before the deadline. 

12.  In Choy Bing Wing v President of Hong Kong Institute of Engineers (HKIE) (unreported, CACV 172/2013, 19 February 2014), it was held at [15] that “The court’s duty on active case management is equally applicable to appeals as in first instance cases.  The expeditious and efficient disposal of appeals is important in the proper administration of justice”.  The Court has power to strike out an appeal on the ground of abuse of process which includes a striking out for want of prosecution ([18]).

13.  Since the applicant did not comply with the unless order, the appeal had been dismissed.  However, the Court has the power to grant relief from the consequence flowing from the failure to comply with an unless order under Order 2 Rule 5, see The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Ltd HCMP 556 of 2017, 25 October 2017.  The proper approach for exercise of discretion in deciding whether relief is to be granted was discussed at [12] of that judgment.

14.  We treat the request of the applicant of 6 January 2018 as an application for relief under Order 2 Rule 5. 

Discussion

15.  The applicant gave his address at Wing Ning Sun Tsuen in the Form 86.  He gave the same address in the Notice of Appeal.  In §5 of the Notice of Appeal he confirmed this address was “accurate”.  The Registrar’s direction was sent to this address.

16.  In the letter dated 6 January 2018, the applicant claimed that the address in Wing Ning Sun Tsuen was in fact “temporary” and that he had moved to another address.  He only checked his mail “a few days ago” (i.e. in early January 2018 or late December 2017).

17.  The contents of the letter were not verified by an affirmation.  It is not clear as to the date on which he moved to a new address and he did not report to the Court of his new address prior to 6 January 2018.  If he was contented to use the address in Wing Ning Sun Tsuen as his address for the purpose of the appeal and if he was serious about the prosecution of his appeal, he should have checked mail sent to that address constantly.

18.  The letter of 30 November 2017 and the unless order of 19 December 2017 gave generous time to the applicant to prepare the appeal bundle.  Given the detail guidance given in the letter of 30 November 2017 on the preparation of appeal bundle, it was not difficult for the applicant to comply with the same.

19.  The applicant must have known that important documents of this case would be sent to the Wing Ning Sun Tsuen address from time to time.  This is because in the Notice of Appeal he claimed that he failed to appear in the hearing before the trial judge because he did not receive any notice of hearing.  With such experience, the applicant should have checked his mail on a regular basis.  He did not explain why he did not do so. He also did not explain why he did not notify the Court prior to 6 January 2018 about the new address. 

20.  Even though the applicant acted in person, we do not find sufficient explanation for his neglect to comply with the unless order. 

21.  We are further of the view that the appeal has no merit.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.

22.  This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

23.  The Director and the Board found that state protection is available (§13(v) of the Director Decision and §77 of the Board Decision).  There is no scope for finding risk of torture based on the concept of state acquiescence.

24.  The finding of the Director and the Board (which the judge found no ground to disturb after rigorous and anxious scrutiny) was that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law, see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

25.  In respect of the assessment of BOR2 risk, the applicant did not state or outline what further information regarding BOR2 risk he wished to provide.  On the facts of the present case, it seems to us that the assessment of BOR2 risk could effectively be made on the same materials presented by him with the assistance of lawyers in the other claims.  

26.  The applicant also complained about the lack of language assistance.  It is clear from the written decision of the Board that he was able to indicate to the Board his decision not to give evidence.  He submitted that he would rely on matters in the trial bundle and confirm that they are true ([23] Board decision).  In any event, the applicant was able to proceed in English and all his documents were written by him in English. 

27.  We do not see any error of law or procedure in the proceedings before the Director or the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

28.  Effectively, we have considered the appeal on its merit and the applicant failed to persuade us that the appeal has any merit.

29.  For these reasons, though we bear in mind the applicant made the request promptly after the dismissal of the appeal pursuant to the unless order and he was acting in person in an appeal which is important for him, weighing all relevant circumstances in the present appeal, we refuse to grant relief to the applicant to pursue a hopeless appeal.  The appeal stands dismissed.