Hussain Babar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 214 /2020

[2021] HKCA 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2020

(ON APPEAL FROM HCAL NO 1008 OF 2018)

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Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 11 December 2020

Date of Judgment: 5 February 2021

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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 present summons was issued on 27 November 2020.

2.The applicant is a national of Pakistan.  He is 27 years old.  He first came to Hong Kong on 26 February 2011 as a dependent of his stepfather.  He last entered Hong Kong on 16 April 2017 with limitation of stay until 1 March 2018.  During his stay in Hong Kong, he committed a number of offences and was sentenced to imprisonment.  He was transferred to the Immigration Department after imprisonment.  A deportation order was issued against him on 1 September 2017.  He lodged a non-refoulement claim on 15 November 2017.  He claimed that he would be harmed or killed by a group of gangsters who are closely related to Pakistan Muslim League (N) because of a land dispute if he is to be returned to Pakistan.

3.His claim was dismissed by the notice of decision of the Director of Immigration (“the Director”) on 14 February 2018.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 23 May 2018.

The intended judicial review

4.The applicant filed a Form 86 in HCAL 1008/2018 and an affirmation on 4 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. 

5.He put forward the following grounds for judicial review:

(1)  the Director failed to maintain high standard of fairness and his decision was Wednesbury unreasonable;

(2)  the Director failed to consider the issue of state acquiescence;

(3)  the Director had not considered collusion between the police and those in the high up of political circles and the misconduct of the police officials;

(4)  the Director failed to give sufficient weight to the Country of Origin Information (“COI”) which supported the applicant’s case;

(5)  the Director elected to adopt the COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6)  the Director failed to appreciate the serious corruption problem and incompetency of the administration in the applicant’s country;

(7)  the Board failed to make sufficient enquiry before making the determination;

(8)  the Board was wrong to demand evidence from the applicant because the applicant was being kept in the detention centre; and

(9)  the Board failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

The judge’s decision

6.The applicant attended the hearing scheduled on 23 January 2019 before DHCJ K W Lung.  The judge considered that the applicant failed to set out any exceptional circumstances to allow him to seek judicial review of the Director’s decision, as the Board had heard his appeal and made its decision.  The applicant confirmed before the judge at the hearing that he had had a fair hearing before the Board and had no comments on the Board’s findings.  The judge held that the Board was entitled to ask the applicant to prove his case and the rest of the applicant’s grounds against the Board are not supported by evidence.  The judge dismissed the application on 17 June 2020 as the applicant failed to show he had any reasonable prospect of success in his proposed judicial review^[1].

The Unless Order and the present application

7.By a notice of appeal filed on 23 June 2020, the applicant appealed against the said decision of DHCJ K W Lung.

8.On 21 July 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 17 August 2020 two sets of appeal bundle.  The applicant did not comply with this direction.  On 29 September 2020, the Registrar further directed that the applicant should lodge the bundles on or before 22 October 2020, 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 with the consequence of dismissal of the appeal in the event of default of compliance.  The applicant again failed to comply with this direction.

9.On 2 November 2020, Kwan VP made an order that unless the applicant lodges the appeal bundles by 4pm on 16 November 2020, his appeal will be dismissed immediately without further order (“the Unless Order”). As the applicant did not lodge any appeal bundle by the prescribed time, his appeal was dismissed on 16 November 2020 pursuant to the Unless Order.

10.The applicant filed the present summons and a supporting affirmation on 27 November 2020 for leave to submit the appeal bundles out of time and to adduce new ground of appeal.  As the appeal has already been dismissed for failure to comply with the Unless Order, this application shall be treated as an application for relief from the sanction for failing to observe the Unless Order.

11.The applicant lodged two sets of application bundles and his written submission on 11 December 2020.

12.Having considered the application bundles lodged by the applicant as well as other documents filed in the court below in HCAL 1008/2018, it is appropriate to determine the present summons on paper without holding an oral hearing.

Grounds of appeal

13.The applicant stated the following grounds of appeal in his notice of appeal^[2]:

(1)  the Director failed to appreciate the presence of state acquiescence.  The Director, the Board and the judge all failed to take this into account;

(2)  the Board failed to make sufficient enquiry before making the determination;

(3)  the Board failed to give sufficient chance to the applicant to arrange relevant evidence to support his claim;

(4)  the Director selected the Country of Origin Information which suited his pre-conceived conclusion and is clearly unfair to the applicant.

14.In his written submissions, he stressed that the high standards of fairness require that the applicant should be given every reasonable opportunity to establish his claim and submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility so its decision should be set aside.

Analysis and disposition

15.Under Order 2 rule 5(1) of the Rules of the High Court, 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.

16.The applicant explained in his affirmation that he is a litigant acting in person so he is unaware of the rules and he only received the court order regarding the appeal bundles on 15 November 2020 so he did not have enough time to seek legal advice and help to prepare the bundles.

17.As mentioned above, the court made two orders on 21 July 2020 and 29 September 2020 respectively requiring the applicant to lodge appeal bundles before the Unless Order.  The court also made it clear in the order of 29 September 2020 that the consequence of dismissal of the appeal may be imposed if the applicant fails to act as directed.  Under these circumstances, the applicant cannot fairly be excused for being unaware of the rules or not having enough time to prepare the appeal bundles.

18.Furthermore, his appeal is unmeritorious.  The grounds of appeal are just bare assertions without evidence in support.  The applicant refused to answer questions from the Board at the Board hearing and he also failed to adduce any evidence at the court below to rebut the Board’s findings.  He has not demonstrated 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. 

19.For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 27 November 2020. We make a further order to expunge the application to fix a date for hearing of the appeal filed on 11 December 2020 as the appeal has been dismissed due to failure to comply with the Unless Order.

The Applicant, acting in person