Haldar Alom v. Torture Claims Appeal Board

CACV 305/2020

[2021] HKCA 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 305 OF 2020

(ON APPEAL FROM HCAL NO 1339 OF 2018)

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Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 22 April 2021

Date of Judgment: 4 June 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.

2.The applicant is a national of Bangladesh of 65 years old.  He entered Hong Kong illegally on 9 December 2014 and was arrested by the police on the same day.  He raised a non-refoulement claim on 12 December 2014.   He claimed that if he returns to Bangladesh he will be harmed or killed by the supporters of the rival political party Awami League for refusing to join their party. 

3.His claim was dismissed by the Director of Immigration (“the Director”) on 16 February 2017.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 28 June 2018. 

4.On 10 July 2018, the applicant filed Form 86 to apply for leave to apply for judicial review against the decision of the Board.  He put forward the following grounds for judicial review:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Board had significantly relied on the source of news not officially recognized or is simply hearsay or outdated; and

(6)  the hearing bundle for his appeal was provided to him only six days before the appeal hearing with the majority of the documents in the bundle in English without translation thereby given him insufficient time to prepare for his appeal or to get proper interpretation assistance in his appeal before the Board. 

5.His leave application was dismissed by Deputy High Court Judge Bruno Chan on 13 July 2020.  He filed a notice of appeal on 27 July 2020 against the decision of the judge.

6.On 12 October 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 30 October 2020 three sets of appeal bundle.  The applicant did not comply with this direction.  On 2 December 2020, the Registrar further directed that the applicant should lodge the bundles on or before 22 December 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.  The applicant again failed to comply with this direction.

7.On 2 March 2021, Kwan VP made an order that unless the applicant was to lodge the appeal bundles on or before 16 March 2021, the appeal would be dismissed without further order (“the Unless Order”).  The applicant did not lodge any appeal bundle by the prescribed time and his appeal was dismissed on 16 March 2021 pursuant to the Unless Order.

8.On 8 April 2021, the applicant filed the present summons to apply for relief from the sanction for failing to observe the Unless Order. 

9.On 9 April 2021, the Registrar gave directions for the filing of affirmation in support, the lodging of submissions and the application bundle.  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.  The applicant lodged the appeal bundles together with his written submissions and filed an affirmation in support on 22 April 2021. 

10.Having considered the appeal bundle, the written submissions and the affirmation lodged by the applicant, we consider it appropriate for this court to determine the summons on paper without holding an oral hearing.

Grounds of appeal

11.The grounds of appeal stated 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 came from outdated cases.  The lack of credible source of information has resulted in their groundless speculation.

12.In his written submissions, the applicant further contended that:

(1)  high standards of fairness are required in the determination of a torture claim; and

(2)  the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Legal Principles

13.Pursuant to Order 2 rule 4 of the Rules of the High Court, 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.

14.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 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 and disposition

15.The appeal was dismissed on 16 March 2021 for failure to comply with the Unless Order.  The present summons issued on 8 April 2021 was filed well out of the 14 days’ period stipulated under Order 2 rule 4.  The applicant explained in his affirmation that he received the Unless Order very late. 

16.The Court had sent a letter to the applicant’s address by post on 2 March 2021 notifying him of the Unless Order, before sending the sealed copy of the Unless Order to the applicant on 24 March 2021.

17.Moreover, as mentioned above, the Court previously made two orders on 12 October 2020 and 2 December 2020 requiring the applicant to lodge appeal bundles before making the Unless Order.  The Court also made clear in the order of 2 December 2020 that the consequence of dismissal of the appeal may be imposed if the applicant should fail to act as directed.  In these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions.

18.Furthermore, his appeal is unmeritorious.  The grounds of appeal are just bare assertions without evidence in support.  The applicant 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 8 April 2021.

20.As the appeal has been dismissed, we order that the application to fix a date for hearing of the appeal filed on 22 April 2021 be expunged from the court files. 

The Applicant (Appellant), acting in person