RE ISLAM ASHRAFUL

CACV 181/2020

[2021] HKCA 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 181 OF 2020

(ON APPEAL FROM HCAL 2998/2018)

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JUDGMENT

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

1.  On 4 December 2020, the Applicant filed a summons to apply for relief from the sanction imposed by this Court’s order of 22 October 2020 that unless the Applicant complies with the Registrar of Civil Appeals’ directions of 8 July 2020 and lodges appeal bundles by 4:00 pm on 5 November 2020, the appeal shall be dismissed automatically on 5 November 2020 at 4:00 pm. The Applicant had failed to comply with this unless order as he did not file a supplemental notice of appeal as directed by the Registrar of Civil Appeals’ directions of 8 July 2020. The appeal was thus dismissed accordingly.

2.  After the Applicant filed his summons on 4 December 2020, the Registrar of Civil Appeals on 8 December 2020 directed that the Applicant file an affirmation on or before 19 December 2020 to support of his application for relief and lodge application bundles on or before 22 December 2020.  The Applicant filed his supporting affirmation and lodged his application bundles on 23 December 2020.  By her direction on 2 January 2021 the Registrar of Civil Appeals waived the 1-day delay in this instance.

3.  On 23 February 2021 this Court noted that the Applicant had still not complied with the Registrar of Civil Appeals’ direction of 8 July 2020 to file a supplemental notice of appeal setting out his grounds of appeal, and directed that unless the Applicant lodges a supplemental notice of appeal setting out his grounds of appeal on or before 4:00 pm on 12 March 2021, the summons of 4 December 2020 shall be dismissed automatically without further order after 4:00 pm on 12 March 2021.

4.  Such direction was given because without sight of the Applicant’s grounds of appeal, the Court cannot assess its merits for the proper disposal of the relief application.

5.  On 3 March 2021 the Applicant lodged a set of skeleton submissions without filing any supplemental notice of appeal. 

6.  In the circumstances, this Court can only process his application for relief from the sanction on the basis that his grounds of appeal were contained in those submissions.

7.  In his supporting affirmation filed on 23 December 2020, the Applicant deposed that he did not receive the unless order of 22 October 2020 until 20 November 2020 though he acknowledged that the order had been sent to the correct address.

8.  The Applicant’s submissions of 3 March 2021 consist largely of general statements of law quoted from case law without identifying how they specifically applied to his appeal.  At the third page of his submissions, he contended that the Torture Claims Appeal Board failed to scrutinize the decision of the Director of Immigration and failed to consider country of origin conditions.  However, he did not provide any details or particulars to make good such arguments.

9.  In those submissions the Applicant did not specifically explain why he should be given relief from the sanction imposed by the unless order of 22 October 2020.

10.  Having reviewed the summons of 4 December 2020 together with its supporting affirmation and the written submissions of 3 March 2021, we do not find any reasonably arguable basis for granting relief from the sanction imposed by the unless order of 22 October 2020. 

11.  We do not accept that the Applicant only received the unless order on 20 November 2020 since it had been sent by post to the correct address.

12.  Further, the Applicant did not provide any explanation for his failure to comply with the directions of the Registrar of Civil Appeals to file supplemental notice of appeal.  Since the original notice of appeal did not contain any grounds, it was not effective to bring a proper appeal.

13.  In any event, despite repeated opportunities being given, the Applicant has not been able to come up with effective grounds of appeal.  This Court has repeatedly held that reiteration of propositions set out in case law and general assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  In the circumstances, there is no reason for granting relief from the sanction imposed by the unless order of 22 October 2020.

15.  For the above reasons, we dismiss the Applicant’s summons of 4 December 2020.