Mohammed Fateh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 88/2021

[2021] HKCA 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2021

(ON APPEAL FROM HCAL NO 1155 OF 2018)

________________________

________________________

Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 10 August 2021

Date of Judgment: 15 October 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down 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 India.  He is 29 years old.  He came to Hong Kong on 16 April 2014 as a visitor and subsequently overstayed.  He was arrested by the police on 4 May 2014.  He raised a non-refoulement claim on 6 May 2014.   He claimed that he will be harmed or killed by a loan shark if he returns to India because he failed to repay the loan.

3.By a Notice of Decision dated 31 December 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk^[1], BOR 3 risk^[2] and persecution risk^[3]. 

4.By a Notice of Further Decision dated 9 December 2016, the Director rejected the applicant’s claim on BOR 2 risk^[4] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non- refoulement claim.

5.His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 12 June 2018. 

6.On 21 June 2018, the applicant filed a Form 86 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any specific grounds for his intended challenge.

7.His leave application was dismissed by Deputy High Court Judge K W Lung on 23 February 2021.  He filed a notice of appeal on 9 March 2021 against the said decision of the judge.

8.On 28 April 2021, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 12 May 2021 two sets of the appeal bundle.  The applicant did not comply with this direction.  On 21 May 2021, the Registrar further directed that the applicant should lodge the bundles on or before 4 June 2021, 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 29 June 2021, Kwan VP made an order that unless the applicant lodges two sets of the appeal bundle by 4 pm on 13 July 2021, the appeal shall 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 13 July 2021 pursuant to the Unless Order.  

10.On 27 July 2021, the applicant filed the present summons to apply for relief from the sanction for failing to comply with the Unless Order. 

11.On 28 July 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 application bundle together with his written submissions and filed an affirmation in support on 10 August 2021. 

12.Having considered the bundle, the written submissions and the affirmation lodged by the applicant, this court thinks it appropriate to determine the present summons on paper without holding an oral hearing.

Grounds of appeal

13.The applicant’s grounds of appeal stated in the notice of appeal are that he 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.

14.In his written submissions, he 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

15.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.

16.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 the interests of the administration of justice, whether the application for relief has been made promptly and whether there is good explanation for the failure to comply.

Analysis and disposition

17.The appeal was dismissed on 13 July 2021 for failure to comply with the Unless Order.  The summons was filed within the prescribed period of 14 days on 27 July 2021.

18.The applicant explained in his affirmation that he got the Unless Order on 25 July 2021. 

19.The court had sent a letter to the applicant’s address by post on 29 June 2021 notifying him of the Unless Order, before sending the sealed copy of the Unless Order to the applicant on 22 July 2021.

20.Moreover, as mentioned above, the court made two orders previously on 28 April 2021 and 21 May 2021 requiring the applicant to lodge appeal bundles before making the Unless Order.  The court also made clear in the order of 21 May 2021 that the consequence of dismissal of the appeal may be imposed should the applicant fail to act as directed.  Under these circumstances, the applicant cannot fairly be excused for being unaware of the court’s directions.

21.Furthermore, his appeal is devoid of merits.  His grounds of appeal and submissions are just bare assertions without evidence in support.  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.

22.For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 27 July 2021.

23.As the appeal has already been dismissed on 13 July 2021, we make an order to expunge the application to fix a date for hearing of the appeal filed on 10 August 2021.

The Applicant (Appellant), acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).