AHAMMED MD ROBIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 185 /2019

[2020] HKCA 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 185 OF 2019

(ON APPEAL FROM HCAL NO 178 OF 2018)

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J U D G M E N T

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

1.  This is an application by a non-refoulement claimant for relief from sanction for failing to comply with an unless order. The matter arose in this way.

Background

2.  The applicant is a national of Bangladesh of 33 years old.  He entered Hong Kong illegally on 15 July 2014 and was arrested by the police on the same day.  He raised a non-refoulement claim on 19 July 2014.  He claimed that he would be harmed or killed by members of the Awami League if he were to return to Bangladesh because of his refusal to join their political party.  

3.  His claim was dismissed by the notice of decision and the notice of further decision of the Director of Immigration (“the Director”) on 26 July 2016 and 11 May 2017 respectively.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 22 June 2017. 

4.  On 10 July 2017, the applicant applied for leave to apply for judicial review under action number HCAL 379/2017 against the decision of the adjudicator of the Board (“the 1^st leave application”).  It was dismissed by Deputy High Court Judge Woodcock on 26 January 2018^[1].

5.  The applicant did not lodge an appeal against the judge’s decision but reapplied for leave for judicial review against the decision of the Board under a new action number HCAL 178/2018 on 7 February 2018 (“the 2^nd leave application”). 

6.  The 2^nd leave application was heard before Deputy High Court Judge Josiah Lam on 22 August 2018.  As the grounds raised by the applicant in the 2^nd leave application had previously been considered and rejected by the court in the 1^st leave application^[2], the judge found that such application was not justified and must be regarded as an abuse of process.  Therefore, the 2^nd leave application was dismissed on 4 April 2019^[3].

7.  By a notice of appeal filed on 17 April 2019, the applicant appealed against the said decision of DHCJ Josiah Lam.   

8.  On 18 April 2019, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 8 May 2019 three sets of appeal bundle.  The applicant did not comply with this direction.  On 10 May 2019, the Registrar further directed that the applicant should lodge the bundles on or before 29 May 2019, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order.  The applicant again failed to comply with this direction.

9.  On 31 May 2019, Kwan VP made an order that unless the applicant lodges the appeal bundles on or before 10 June 2019, his appeal will be dismissed without further order (“the Unless Order”).  As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 11 June 2019 pursuant to the Unless Order.

10.  The applicant filed the present summons and a supporting affirmation on 18 October 2019 to apply for relief from the sanction for failing to observe the Unless Order.

11.  On 22 October 2019, the Registrar gave directions for the filing of evidence and the lodging of submissions and an application bundle for this summons.  The Registrar further stated that upon consideration of the documents lodged as directed, the Court of Appeal will decide whether to determine the summons on paper or hold a hearing.

12.  The Board wrote to the Registrar on 7 November 2019 stating that they intended to take a neutral stance and sought to be excused from attending any hearing.  The applicant lodged two sets of the application bundles and his written submission on 17 December 2019.

13.  Having considered the application bundles lodged by the applicant as well as other documents filed in the present proceedings and those filed in the court below under HCAL 379/2017 and HCAL178/2018, we think it is appropriate to determine the present summons on paper without holding an oral hearing.

The grounds of appeal in CACV 185/2019

14.  The grounds of appeal in the notice of appeal are that the applicant will face hardship if he is to return to his home country and that the Board has significantly relied on the source of news which is not officially recognized, or is simply hearsay or are outdated cases.  The lack of credible source of information has resulted in their groundless speculation.

15.  In the applicant’s affirmation filed on 18 October 2019 and his written submissions lodged on 17 December 2019, he submitted that:

(a)     He is a genuine non-refoulement claimant who faced dangerous problems, harassment and torture in his country.  He was unable to find any place to stay safely in his country^[4].

(b)     The Director and the adjudicator of the Board reached a wrong decision in assessing his USM claim.  They rejected his claim without proper inquiry and without carefully understanding his situations.

(c)     If he did not run away, he would certainly have been killed by his enemies.  His problems were getting more and more life‑threatening.  He had no choice but to escape to Hong Kong and seek asylum here.

Legal Principles

16.  Pursuant to Order 2 rule 4 of the Rules of the High Court (“RHC”), 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.

17.  Under Order 2 rule 5(1) of the RHC, 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 other things, 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.

Analysis

18.  This appeal was dismissed on 11 June 2019 for failure to comply with the Unless Order.  The summons issued on 18 October 2019 was filed well out of the stipulated period of 14 days under Order 2 rule 4.

19.  The applicant explained in his affirmation that the Unless Order was served on him on 17 June 2019 but he did not receive the Unless Order until 17 October 2019 when he went to the court to inquire about the progress of his appeal.  He speculated that the letters from court did not reach him because there are some new small rooms in the same house he is living in so it is highly possible that the postman or some other tenant might have taken or thrown away some letters due to misunderstanding. 

20.  In fact, the court had sent a letter dated 31 May 2019 by post to the applicant’s address at “Room 3, 5^th Floor”, as stated in his notice of appeal filed on 17 April 2019, notifying him of the Unless Order.  The court had later sent a sealed copy of the Unless Order by post to the same address on 18 June 2019, which was returned to the court as the address is incomplete.  It is pertinent to note that the applicant stated his address as “Flat C, Room 3, 5/F” in the present summons but he has not filed a notice of change of address for service with the court.

21.  The Court of Appeal has repeatedly stressed that it is the duty of a litigant to give the court a correct address so that correspondence or notice sent to his address can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

22.  Moreover, this appeal has no merits.  The grounds of appeal stated in the notice of appeal are just bare assertions without specifics or elaboration. The applicant’s complaints against the Director and the Board stated in his affirmation and written submissions are not supported by evidence. 

23.  In addition, he failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  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^[5].

Disposition

24.  For the above reasons, we decline to exercise our discretion to grant relief from sanction.  We therefore dismiss the summons filed on 18 October 2019.