RE MALIK GHULAM RASOOL

CACV 95/2018

[2021] HKCA 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 95 OF 2018

(ON APPEAL FROM HCAL NO. 336 of 2017)

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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:

The appeal

1.  By a Notice of Appeal dated 6 April 2018, the applicant sought to appeal against the decision[1] of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 March 2018 refusing his application for leave 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 24 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 12 April 2016 and 19 April 2017 rejecting his non-refoulement claim. 

2.  On 9 April 2018, the Registrar of Civil Appeals directed the applicant to lodge with the Court a copy of the CALL-1 Form dated 29 March 2018 so that the appeal could be set down in accordance with Order 59 rule 5(1)(a) of the Rules of the High Court, Cap. 4A, together with two sets of appeal bundle.  The direction was communicated to the applicant by letter dated 10 April 2018.  The applicant did not comply with the directions.

3.  On 3 May 2018, the Registrar of Civil Appeals ordered that unless the applicant complied with the directions on or before 22 May 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 3 May 2018.  On 16 May 2018, as a result of the applicant’s application for legal aid and the consequential statutory stay of 42 days, the Registrar of Civil Appeals varied the time for complying with the order to 3 July 2018.  Despite that, the applicant did not comply with the order of the Registrar of Civil Appeals. 

The Unless Order and the dismissal of the appeal

4.  On 16 July 2018, having regard to the applicant’s default, Chu JA made an unless order (“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 30 July 2018, the applicant lodges with the Court a copy of CALL-1 Form and 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 31 July 2018.  The order dismissing the appeal was mailed to the applicant by letter dated 9 August 2018.

The present applications

6.  On 7 December 2020, the applicant filed a notice of motion applying for leave to appeal the order dismissing his appeal. 

7.  On 10 December 2020, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of High Court, Cap. 4A by way of summons supported by affirmation. 

8.  On 18 December 2020, the applicant filed a summons together with an affirmation to apply for relief from the sanction imposed by the unless order.  He also lodged a written submission to support his application.  Pursuant to the directions of the Registrar of Civil Appeals, the summons will be considered together with the notice of motion.

9.  Having considered the applicant’s summons, affirmation, notice of motion and written submission, we are of the view that it is appropriate to determine the applicant’s two applications on the paper without an oral hearing. 

Summons for relief from sanction

10.  We deal firstly with the summons applying for relief from the sanction imposed by the Unless Order.  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 application was made more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

11.  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.

12.  In the affirmation dated 18 December 2020, the applicant explained his failure to comply with the court’s directions and the Unless Order on the ground that he could not understand English and did not have assistance in dealing with the court procedure.  He said he had tried to get help from a friend but could not find him, and because of financial problem he could not engage a legal representative to help him to file a proper appeal.

13.  While we accept that the applicant may have language difficulty and may not be familiar with the procedures, we note that he had not approached the court to make enquiry or seek assistance.  We do not find the applicant’s explanation for his non-compliance with the Unless Order entirely satisfactory.

14.  We further note that it was more than two years after his appeal was dismissed for non-compliance with the Unless Order that the applicant took step to overturn the order of dismissal.  He has offered no explanation for his inaction and the serious delay in seeking relief from the court.      

15.  Even if we were to accept that the non-compliance with the Court’s directions and the Unless Order was excusable, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  This is because, for the reasons given below, the appeal has no merits and is bound to fail. 

16.  The applicant is a Pakistani national who entered Hong Kong illegally.  He was arrested by the police on 28 October 2012.  He later made a non-refoulement claim based on his fear of being harmed or ill-treated by two men Shahbaz (“S) and Nika (“N”).  The applicant’s claim was set out in details in the Director’s first decision and the Board’s decision and summarised by the Judge at [1] to [7] of CALL-1 Form dated 29 March 2018. 

17.  In gist, in October 1999, S and N assaulted the applicant’s brother due to a money dispute.  His brother later died from the injuries.  The applicant witnessed the attack, and he reported the two men to the police.   S and N repeatedly threatened the applicant’s father, demanding that the complaint against them be withdrawn.  The applicant’s father refused.  In May 2001, he was shot and died.  A report was made to the police but no action was taken.  Thereafter, the applicant and his two brothers received many threats from the two men.  In 2003, one of the witnesses of the applicant’s father’s attack was killed.  Fearing for their safety, the applicant’s family moved home.  Then in February 2008, S’ brothers and two other men fired shots at the applicant but missed him.  Out of concern for his personal safety, the applicant left Pakistan and went to mainland China in March 2008.  He later returned, and worked and lived in Lahore.  In 2009, his mother, who was concerned about his safety, made arrangement for him to go to mainland China again.  After staying for one year, the applicant returned to Pakistan to visit his sick mother, after which he lived and worked in Lahore until 2012, when he went to Shenzhen in accordance with his mother’s wish.  During his stay there, his mother died from illness.  On his friend’ suggestion, the applicant sneaked into Hong Kong and was arrested by the police.     

18.  By two decisions dated 12 April 2016 and 19 April 2017, the Director determined against the applicant.  The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the further decision covered the BOR 2 risk[5] ground. 

19.  The applicant’s appeal to the Board was heard on 10 May 2017.  By its decision dated 24 May 2017, the Board dismissed the appeal on all the applicable grounds.  Principally the Board accepted that the reports and evidence produced by the applicant confirmed his belief that his brother and father died from attacks from S and N.  The Board, however, considered the likelihood of him being harmed by the two men to be low having regard to the long lapse of time since the attacks on his brother and father, none of his family members have been harmed over the years as well as the fact that the applicant had lived peacefully in Lahore for 13 years before he came to Hong Kong from Shenzhen.  The Board also pointed out that the applicant could not explain why he still believed it was unsafe for him to return to his home country.  The Board also considered there was no evidence to suggest S and N were connected to the police, and found that state protection was reasonably available and internal relocation was viable, which further reduced the risk of harm.  The Board concluded there was no real likelihood of harm or torture and that none of the applicable grounds were made out.   

20.  The applicant filed a Form 86 together with an affirmation on 28 June 2017 to apply for leave to judicially review the decision of the Board.  The applicant relied on three grounds for seeking relief as follows:

(1)  Procedural unfairness in refusing his appeal and failing to meet the greater standard of care and duty owed to him being an unrepresented claimant.

(2)  The hearing bundle was provided to him late and the content was not interpreted to him.  He was confused at the appeal hearing before the Board.

(3)  The Board had improperly relied on source of news that was not officially recognised or was hearsay and also on outdated cases.  As a result, it made groundless speculations that it was safe for hum to return to Pakistan.    

21.  The Judge heard the application at an oral hearing.  On 29 March 2018, the Judge dismissed the application for the reasons he gave in [15] to [21] of the Form CALL-1 as follows:

“15.  The first ground is however so broad and vague that without any particulars or specifics provided by the applicant, it is not clear as to exactly what procedural unfairness that he is referring to in the process of his appeal before the Board, and accordingly I find that the applicant has not shown any basis or merit in this ground.

16.  As for the second ground in respect of the hearing bundle, it is relevant to note that the Board has stated this in paragraph 6 of its decision:

‘An oral hearing was conducted on 10 May 2017. The Applicant appeared in person with suitable interpretation. He testified at the hearing and adopted the information contained in the following documents as evidence in support of his claim:

(a)  The Applicant’s Non-refoulement Claim Form dated 12 February 2016 (“NCF”);

(b)  The record of his Screening Interview dated 30 March 2016 and 6 April 2016; and

(c)  Letter from the Duty Lawyer Service enclosed with supporting documents dated 23 March 2016.’

17.  It seems clear to me therefore that the applicant should already be well familiar with all the documents in the hearing bundle as they were either prepared by his then lawyer under the Duty Lawyer Service based on his instruction, or of his earlier interview record with the Immigration Department which he was later supplied with a copy when he was still legally represented.

18.  Furthermore, he was clearly able to testify at the hearing before the Board with proper interpretation and there does not seem to me any suggestion or indication of any problem or complain that he may have with interpretation or in answering questions from the Board at any time during the hearing. I do not see any basis or merit in this ground either.

19.  As for his third ground, again without providing any particulars or specifics as to which parts of the COI relied on by the Board were either hearsay or outdated, it is not possible to know how such reliance was improper. It seems clear to me that the Board did refer to those COI relied on by the Director in its consideration of his claim and the availability and reasonableness of internal relocation alternatives for him as listed in the Appendix to the Director’s decision, and a close examination thereof reveal that they were all from well-recognized and official sources such as the UK Visas and Immigration, the US Department of State or the Punjab Provincial Government. Accordingly I am unable to see any basis or merit in this ground either.

20.  These grounds aside, in undertaking my own consideration of the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not see any error in law or procedural unfairness in either of their decisions, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.

21.  In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

22.  The notice of appeal contained the following grounds of appeal:

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

(2)  The Board had relied on source of news that was not officially recognised or was hearsay, and also outdated cases when there had been dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculation.   

23.  In his written submission, the applicant advanced the following arguments:

(1)  His case was not determined fairly. Without knowing how the case was determined it is not easy for him to appeal against it.  Non-refoulement claimants like him have limited resources.  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their case.

(2)  If a litigant has not been informed fully of his right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it is not even granted in the first place.

(3)  He was never provided with proper legal and language assistance.  He did not have legal representation in the BOR2 assessment.  He could not get legal representation as he had limited financial resources.  The determination of the Board was not read to him in his language.  All this is procedurally unfair and should be taken into account.

(4)  The discriminatory act of the authorities that aims only at a quick disposal of the non-refoulement claimants’ claims is unacceptable and is detrimental to the spirit of the judicial system.

24.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

25.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  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.

26.  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. 

27.  In light of the above legal principles, the matters put forward by the applicant in the notice of appeal and written submission do not constitute viable grounds for appealing the Judge’s decision.  None of the grounds or arguments has addressed the Judge’s reasons for dismissing the application.  The applicant has also not pointed to any error in the Judge’s decision or reasoning.  In our view, the Judge had fully considered the applicant’s grounds for judicial review and given proper reasons for rejecting them.    

28.  Further, the complaint in the written submission of lack of legal assistance and representation is a new ground that was not raised in the application before the Judge. It is not permissible to raise at the appeal new ground or argument that is fact sensitive.  Moreover, the complaint of procedural unfairness in the written submission consists only of general assertions with no supporting particulars. 

29.  For the above reasons, 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.  Accordingly, we refuse to give relief from the sanction imposed by the Unless Order and dismiss the summons dated 18 December 2020.  

Notice of motion

30.  As we have refused to give relief from the sanction imposed by the Unless Order, the order dated 31 July 2018 dismissing the appeal for non-compliance with the Unless Order stands.  We will turn next to consider the application for leave to appeal to the Court of Final Appeal against the order of 31 July 2018.

31.  The notice of motion stated the following as grounds in support of the application:

(1)  There is some error in law.

(2)  The decision maker just relied on COI information and facts that favour the rejection of his claim.  Actual life situation was different from that stated in the COI.

(3)  The officer and court preferred to ignore the overwhelming evidence of violence and took a biased and formulaic approach.  It is unlikely that they had fairly assessed the danger to his life. 

32.  The content of the affirmation accompanying the notice of motion is identical to that of the affirmation in support of the summons applying for relief from sanction (see [12] above).  It is only to explain the delay in making the application.

33.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  

34.  The grounds contained in the notice of motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they relate solely to the circumstances of the applicant’s claim, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons that we gave in dismissing the application for relief from sanction, the intended appeal to the Court of Final Appeal has no merits.    

35.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

36.  As the statutory requirements for giving leave to appeal are not met, the intended appeal to the Court of Final Appeal has no prospect of success.  Accordingly, we dismiss the Notice of Motion.