RE KAYAMKHANI ASLAM KHAN

CACV 22/2020

[2021] HKCA 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 22 OF 2020

(ON APPEAL FROM HCAL NO. 1268 OF 2018)

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J U D G M E N T

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The Court:

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 15 September 2020 whereby he was required to lodge two sets of appeal bundle for his appeal by no later than 13 October 2020 failing which his appeal would be dismissed.  Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Background

2.  The applicant, a national of India, entered Hong Kong on 21 August 2014.  The applicant was refused permission to land and he then lodged a non-refoulement claim on the same day.

3.  The applicant’s claim was based on threats from a person known as Ahmed, an allegedly wealthy and influential landowner in his village with political connections.  According to the applicant, Ahmed forcibly occupied his family’s farmland.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 30 October 2014 (“the Director’s First Decision”), the Director of Immigration (“Director”) decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. 

5.  After a hearing on 30 January 2015, the applicant’s appeal against the Director’s First Decision was dismissed by the Torture Claims Appeal Board (“Board”) on 13 February 2015.  At [25] of its decision, the Board found that the applicant’s claim was not plausible.  The Board was also satisfied at [46] that there was nothing to indicate that state protection would not be available to the applicant and at [51] that internal relocation would be viable.

6.  By a Notice of Further Decision dated 20 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

7.  The applicant again appealed to the Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2) of the Immigration Ordinance, Cap. 115 whether to allow the late filing of the notice.

8.  In its decision dated 22 June 2018, the Board held that the delay of 9 days was not serious nor significant and decided to consider the merits of the appeal.  The Board found at [28] of the decision that the applicant has failed to establish any risk of harm proscribed by BOR 2.

9.  The applicant filed a Form 86 on 4 July 2018against the two decisions by the Director and the two decisions by the Board.  The Form 86 contained no ground for seeking relief.

10.  In his affirmation in support of the leave application dated 4 July 2018, the applicant advanced the following grounds for judicial review, as summarized by DHCJ Bruno Chan (“the judge”) at [14] of CALL-1 form:

“(1) lack of legal representation in his appeal before the Director or the Board for his claim under BOR 2 risk;

(2) lack of legal assistance for not providing him with the service of an interpreter during the process before the Director or the Board for his claim under BOR 2 risk; and

(3) the Board’s refusal to accept his late filing of his appeal regarding his claim under BOR 2 risk was unreasonable.”   

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [23] of the CALL-1 Form:

“15. For his complaint in Ground (1) of not being provided legal representation before the Director or the Board in respect of his claim under BOR 2 risk, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16. The Applicant already had the benefit of legal representation in presenting his case to the Director in respect of his torture risk, BOR 3 risk and persecution risk, and in his appeal before the Board regarding those risks, he was also able to testify and make representation and to answer questions put to him by the adjudicator without difficulty.

17. Given the fact that he did not provide any additional facts relevant to the assessment of his BOR 2 risk, and based on the existing materials and the case advanced by the Applicant, the assessment of BOR 2 risk would be the same as the torture risk, BOR 3 risk and persecution risk. As such I do not find anything amiss arising from the lack of legal representation in his process before the Director or the Board regarding his BOR 2 risk, and I do not find this ground reasonably arguable.

18. As for his complaint under Ground (2) of not being provided with the service of an interpreter for his claim under BOR 2 risk, for the same reasons given above, I do not find any merit in this complaint of the Applicant, nor is it reasonably arguable for his intended challenge.

19. Regarding his complaint under Ground (3) that the Board’s refusal of the late filing of his Notice of Appeal as unreasonable, the Applicant failed to provide any particulars or elaboration why it was so, but as already noted above that in the absence of any additional facts relevant to his BOR 2 risk being provided by the Applicant either to the Director or the Board, the adjudicator was in my judgment entitled to find, and rightly found, that his claim did not engage BOR 2 risk based on the existing materials and on the analysis and reasons as set out in paragraph 28 of the Board’s decision that there is no merit in his intended appeal regarding his BOR 2 risk to justify allowing the late filing of his Notice of Appeal. In the premises I do not find this ground of the Applicant reasonably arguable either.

20. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

21. The fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

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

Grounds for appeal

12.  In the Notice of Appeal dated 15 January 2020 the applicant contended that:

(1)   The judge did not exercise caution and diligence in handling his case as a self-represented litigant and failed to acknowledge his language difficulty; 

(2)   The judge failed to address the difficulty faced by the applicant in relation to his claim based on BOR2 risk;

(3)   There was no interpretation service after the Director’s Decision; and

(4)   For the applicant to better understand of his case, the applicant should be given language assistance and there should be an oral hearing with interpretation service.

13.  The applicant failed to comply with the unless order made by Barma JA dated 15 September 2020 whereby the applicant was required to lodge 2 sets of appeal bundle before 13 October 2020, failing which the appeal would stand dismissed.

14.  By a summons dated 4 November 2020, the applicant applied to set aside the order alleged to have been made by the judge on 1 September 2020 dismissing his appeal.  No such order has in fact been made by the judge.  From the contents of the affirmation dated 4 November 2020 it is clear that the applicant was in fact applying to set aside the unless order dated 15 September 2020 and the summons was treated as such.

15.  In the affirmation dated 4 November 2020, the applicant deposed that:

(1)   The applicant followed the directions on 18 March 2020 to lodge the appeal bundles on or before 2 April 2020.  He attempted to submit the bundles to LG3 of the High Court but because the Civil Appeal Registry was closed due to the general adjournment period he was unable to do so;

(2)   He did not receive any letter after the letter enclosing the directions on 19 March 2020. He only received the order of the court; and

(3)   The letter dated 27 October 2020 informing the applicant of the dismissal of his appeal for failure to comply with the unless order was not mailed to him.  Also, he always checked his mailbox and he did not receive any letter enclosing the directions dated 15 September 2020.

16.  In his skeleton submissions dated 25 November 2020, the applicant reiterated the matters raised in the affirmation dated 4 November 2020.  He further submitted that:

(1)   After the unsuccessful attempt to lodge the appeal bundles, he “tried more the 2 times”. He was instructed by a staff member of the court to lodge the bundles at LG3, which he did;

(2)   The applicant would like to fix a date for the appeal hearing and be given an opportunity to submit skeleton arguments for his appeal; and

(3)   The CALL-1 Form should be translated to him and he should be given a reasonable time (such as 14 days) to respond.

17.  The applicant agreed by a letter of 15 January 2020, the appeal could be heard by two judges.

Discussion

18.  Having considered the papers, we are satisfied that this application can properly be dealt with on papers without an oral hearing.

19.  On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2, rule 5 of the Rules of the High Court (Cap. 4A). 

20.  In The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Limited (unreported, HCMP556/2017, 25 October 2017) at para 12, the court held that:

“Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1) in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was) in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

21.  The passage above was applied by this court in Labrador Nolito Blazado [2018] HKCA 720 at [11].

22.  The applicant has failed to supply sufficient particulars, such as dates, for his alleged attempts to lodge the appeal bundle.  He also failed to explain why he was unable to receive letters from the court.  In our view, the applicant has failed to provide a satisfactory explanation for the non-compliance of the unless order.

23.  As for the merits of the intended appeal, we note that a major complaint by the applicant is the lack of legal assistance.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice.

24.  As for the alleged lack of language assistance, we note that the applicant was able to refer to the court’s directions in explaining his delay in lodging the appeal bundles.  He was able to file documents written in English.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance. 

25.  As for the other grounds of appeal, including the ground related to BOR2 risk, those grounds lacked particulars and are bound to fail. 

26.  We do not consider that the intended appeal has any merit.  It is incumbent on the applicant to show why the court should exercise its discretion in his favour and grant relief from sanction.  For the reasons given above, we are of the firm view that the court should not exercise its discretion to do so. Accordingly, the summons dated 4 November 2020 is dismissed, with no order as to costs.

27.  We are also of the view that the application is totally without merit.  We make an order that no party may request this determination be reconsidered at an oral hearing inter partes.