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CACV 406/2020
[2021] HKCA 557
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 406 OF 2020
(ON APPEAL FROM HCAL 1128/2017)
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ASHIQ HUSSAIN |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Interested Party |
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Before: Hon Lam VP, Barma and Au JJA in Court
Date of Written Submissions: 21 December 2020 and 2 February 2021
Date of Judgment: 3 May 2021
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. On 25 August 2020, the Applicant filed a Notice of Appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) made on 10 July 2020 and sealed on 12 August 2020. In that order, the Judge granted leave to the Applicant to withdraw his summons of 19 May 2020, with no order as to costs.
2. As it is unclear from the reading of the Notice of Appeal what the Applicant intends to appeal against, on 7 December 2020 the Registrar of Civil Appeals directed the Applicant to lodge written submissions with the Court on or before 24 December 2020 if he does not agree that the Notice of Appeal should be struck out.
3. By the directions of 22 December 2020 and 13 January 2021, the Registrar of Civil Appeals also directed the Interested Party, the Director of Immigration (“Director”) to lodge its written submissions (if any) by 4 February 2021.
4. Both the Applicant and the Director have lodged their written submissions as directed.
5. Having read those submissions, we now give our decision on whether the Notice of Appeal should be struck out.
Background
6. The Applicant is a Pakistani national. He was arrested by police in Hong Kong on 1 May 2014 for illegally remaining here, and was referred to the Immigration Department on 2 May 2014. He lodged a non-refoulement claim on 3 May 2014.
7. The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his creditor for failing to repay a loan.
8. By two decisions dated 25 February 2016 and 24 November 2016 respectively, the Director assessed the Applicant’s non-refoulement claims and determined against them. The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].
9. The Applicant sought to appeal to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision of 25 February 2016 by filing a notice of appeal with the Board on 7 December 2016 outside the prescribed time limit of 14 days under Section 37ZS(1) of the Immigration Ordinance, Cap 115. The Board treated the notice of appeal as a late filing pursuant to s. 37ZT of the Immigration Ordinance and rejected the same due to the substantial delay in filing the appeal and because there were no special circumstances such that it would be unjust not to allow the late filing.
10. There was no appeal by the Applicant in respect of the Director’s decision of 24 November 2016.
Leave for judicial review granted, and later set aside by consent
11. On 21 December 2017 the applicant sought leave from the court to apply for judicial review against the Board’s decision. On 29 May 2018 Deputy High Court Judge Josiah Lam granted leave for the Applicant to apply for judicial review of the Board’s decision in respect of the Director’s notice of decision dated 24 November 2016.
12. As a result of the grant of leave, on 13 August 2018 the Applicant’s then solicitors, who were assigned by Legal Aid, issued an originating summons pursuant to the leave granted, and served the originating summons on 14 August 2018.
13. Subsequently, on 15 April 2019 the Director applied to set aside the leave granted to the Applicant to apply for judicial review on the ground that there was no appeal to the Board regarding the decision of 24 November 2016.
14. On 20 September 2019, by a consent summons signed by both the Director’s legal representative as well as the Applicant’s then solicitors, the parties consented to set aside the leave to apply for judicial review.
15. On the same day, DHCJ Josiah Lam granted the consent order with the result that the leave was set aside.
Summons for leave to appeal and the withdrawal of the same
16. On 19 May 2020 the Applicant acting in person filed a summons seeking (leave) to appeal against the consent order of 20 September 2019. By reason of Section 14(3)(e) of the High Court Ordinance, an appeal against a consent order cannot be brought without leave.
17. In his supporting affirmation of the same date, the Applicant deposed that he did not withdraw his judicial review, that he did not want to withdraw his case and did not know how it was withdrawn, and that he wanted to continue his case. He also deposed that he could not return to Pakistan because his life would still be in danger.
18. The 19 May 2020 summons was heard by the Judge on 10 July 2020. At that hearing, the Applicant decided to withdraw the summons. Thus the Judge ordered on 10 July 2020 that leave be granted for the Applicant to withdraw the summons.
Appeal to this Court
19. On 25 August 2020, the Applicant filed his Notice of Appeal against the Judge’s order of 10 July 2020. His stated grounds of appeal were that the decisions of the Director and the Board are unlawful as they failed to take into account many things and issues, and that he could not return to Pakistan because his life would be in danger there.
Discussion
20. The issue presently before the Court is whether the Notice of Appeal is liable to be struck out because the appeal is incompetent or otherwise frivolous and vexatious and an abuse of process.
21. In the present case, it is readily apparent from the record that the appeal is incompetent and liable to be struck out as an abuse of process.
22. Given that it was the Applicant who decided at the hearing to withdraw his summons of 19 May 2020, and the Judge granted leave for him to do so, there is nothing in the Judge’s order of 10 July 2020 that the Applicant could bring an appeal against.
23. More importantly, to the extent that the Applicant wished to revisit the consent order of 20 September 2019, he could not do so without leave. His attempt to seek leave was withdrawn by himself at the hearing of 10 July 2020. It is an abuse of process for him to repeat the same exercise in this Court.
24. In the circumstances the Notice of Appeal should be struck out.
25. We strike out the Notice of Appeal and dismiss the appeal against Deputy High Court Judge Bruno Chan’s order of 10 July 2020. We also order the Applicant to pay the costs of the Director. Having considered the skeleton bill of the Director, we fix the costs at $12,000.
(M H Lam)
Vice President |
(Aarif Barma)
Justice of Appeal |
(Thomas Au)
Justice of Appeal |
The applicant acting in person
Mr Sunny Li, Senior Government Counsel of the Department of Justice, for the interested party
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
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