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

CACV 228/2020

[2021] HKCA 1524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 228 OF 2020

(ON APPEAL FROM HCAL NO 1848 OF 2018)

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Before: Hon Kwan VP and Chow JA in Court

Date of Written Submission: 6 July 2021

Date of Judgment: 22 October 2021

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.We are concerned with two applications made by a non-refoulement claimant. He seeks relief from sanction for failing to comply with an unless order and to set aside the unless order.

2.The applicant is a national of India.  He is 30 years old.  He came to Hong Kong on 14 May 2015 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department on 29 June 2015 and lodged his non-refoulement claim on 29 July 2015.  His claim was made on the basis that he will be harmed or killed by some guys who had a political affiliation since he had a land dispute with them.

3.His claim was dismissed by the Director of Immigration (“the Director”) on 31 October 2017.  His appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 31 August 2018. 

4.On 5 September 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 and only stated in his supporting affirmation that he does not agree with the decisions of the Director and the Board, that his life is in danger and he does not want to go back to his country.

5.His leave application was dismissed by Deputy High Court Judge K W Lung on 17 June 2020^[1].  He filed a notice of appeal on 30 June 2020 against the said decision of the judge.

6.On 30 July 2020, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 26 August 2020 two sets of the appeal bundle.  The applicant did not comply with this direction.  On 29 September 2020, the Registrar made an unless order requiring the applicant to lodge the appeal bundles on or before 21 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 that the appeal would be dismissed in default of compliance.  The applicant again failed to comply with this direction.

7.On 2 November 2020, Kwan VP made an order that unless the applicant was to lodge three sets of the appeal bundle by 4 pm on 16 November 2020, the appeal would be dismissed immediately 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 November 2020 pursuant to the Unless Order.  

8.On 7 May 2021, the applicant filed a notice of motion for setting aside “the order dated 18 November 2020” and for extension of time to lodge the appeal bundles.  The sealed copy of the Unless Order was sent to the applicant by post on 18 November 2020.  The notice of motion should be taken as referring to the Unless Order.

9.On 11 May 2021, the Registrar of Civil Appeals invited the applicant to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of High Court, Cap 4A (“RHC”), by way of summons supported by affirmation.

10.On 25 May 2021, the applicant filed a summons with an affirmation in support to apply for relief from the sanction imposed by the Unless Order.  He also lodged written submissions on 6 July 2021.  Pursuant to the directions of the Registrar of Civil Appeals, the summons will be considered together with the notice of motion.

11.Having considered the written submissions and the affirmations lodged by the applicant, this court thinks it appropriate to determine the applications on paper without holding an oral hearing.

The grounds of appeal

12.The applicant stated his grounds of appeal in the notice of appeal which may be summarized as follows:

(1)  The court and the authorities did not exercise caution and diligence in handling his case as a self-represented litigant.  It has been procedurally unfair;

(2)  The judge’s failure to acknowledge the applicant’s language incapability is unfair.  The applicant was not provided with any language or legal assistance and the judgment was not read back to him in his first language.  The judge failed to consider the significance and level of unfairness in relation to the lack of language and legal assistance;

(3)  The applicant did not confirm that he had no complaint against the immigration officer or the adjudicator.  This is a legal error as the court has the duty to ensure that the process has been procedurally fair.

13.His further contentions in his written submissions may be summarized as follows:

(1)  The judgment does not make logical sense at all;

(2)  The judges have not considered his grounds of appeal thoroughly.  The applicant wants to seek a reconsideration of his case on the basis of unfairness and unreasonableness;

(3)  It is not true that he can understand the Board’s decision.  He was not able to understand the legal jargons without the help of a legal representative and the court should not expect a layman like the applicant to comment on the Board’s findings as he is unable to understand the legal jargons and was not assisted by any legal representative;

(4)  The lack of language assistance is discriminatory and should be deemed unlawful in the sense that it is depriving the applicant of the right to lodge a proper appeal and putting his case at risk of being dismissed for the lack of grounds.  It does not appear that the authorities have taken into account the fact that English is not the first language of the applicant, that he has no right to work in Hong Kong (and therefore cannot hire proper help) and is traumatized by the problems in his home country;

(5)  The Board’s decision was not translated or read back to the applicant.  Depriving the litigant of the right to understand what was decided against him amounts to a deprivation of the right to seek further avenues of appeal or review;

(6)  Without knowing the reasons behind the judgment of the Court of First Instance dismissing his claim, he was deprived of the reasonable opportunity to point out errors in full.  The burden should thus be shifted on the judges to help determine the grounds;

(7)  The request for translation was not considered by the judges.

The Unless Order

14.In the notice of motion, the applicant seeks to set aside the Unless Order and an extension of time to lodge the appeal bundles.  The proper course that the applicant should take is to apply for relief from the sanction for failure to comply with the Unless Order: Re Darlami Bharat Kumar [2020] HKCA 933.  The applicant subsequently filed a summons for relief from sanction pursuant to the directions of the Registrar of Civil Appeals. His application for extension of time will be dealt with below in considering the summons for relief from sanction.

15.As mentioned above, the court made two orders previously on 30 July 2020 and 29 September 2020 requiring the applicant to lodge the appeal bundles before making the Unless Order.  The court also made clear in the two orders that should the applicant fail to act as directed, his appeal may be dismissed as a result for failure to comply with an unless order.  The applicant had repeatedly failed to lodge the appeal bundles in compliance with the directions of the court.  Such repeated failures hampering the prosecution of the appeal constitutes failure to prosecute his appeal with due diligence^[2]. 

16.The applicant stated in his affirmation that he did not receive any letter from the court regarding his appeal and was not aware of the Unless Order.  A new address is stated in his affirmation and he asked the court to update his address for future correspondence. 

17.It is noted that the letter sent by the court to the applicant’s address by post on 2 November 2020 notifying him of the Unless Order as well as the sealed copy of the Unless Order sent to the applicant by post on 18 November were returned to the court by the post office.  However, the court’s directions dated 30 July 2020 and 29 September 2020 previously sent to the applicant by post were not returned to the court.  The applicant has not filed any notice of change of address for service with the court notifying the court of his new address.  It is the duty of a litigant to give the court an address to which correspondence or notice 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 shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). 

18.Under such circumstances, the Unless Order was appropriately made and the applicant does not have a viable ground to set it aside.  We therefore dismiss the notice of motion filed on 7 May 2021. 

Relief from sanction

19.Pursuant to Order 2 rule 4 of the 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.

20.Under Order 2 rule 5(1) of the RHC, when dealing with an application for relief from the sanction imposed for 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.

21.The appeal was dismissed on 16 November 2020 for failure to comply with the Unless Order.  The applicant filed the notice of motion and the summons several months later, well out of the period of 14 days stipulated under Order 2 rule 4.

22.For the reasons mentioned above, the applicant cannot fairly be excused for being unaware of the court’s directions as it was caused by the applicant’s own fault in failing to provide an address to which correspondence or notice can come to his attention in a timely manner and failing to file a notice of change of address for service. 

23.Furthermore, the appeal is unmeritorious.  The applicant’s assertions that the court and the authorities did not exercise caution and diligence in handling his case and that the judgment does not make logical sense are just bare assertions without particulars or evidence in support.  Besides, as his appeal was dismissed for failure to comply with the Unless Order, his complaint that the judges have not considered his grounds of appeal thoroughly cannot constitute a valid ground of appeal. 

24.The applicant claims that he did not confirm he had no complaint against the immigration officer or the adjudicator.  It is noted that he has not stated any complaints against the immigration officer or the adjudicator in his Form 86 or his affirmation in support of his leave application for judicial review. When he was given the opportunity to make oral submissions at the hearing before the judge, he made no complaint against the immigration officer or the adjudicator.  He also had no comment to the Board’s decision^[3].  He does not have any reasonably arguable basis to submit that the judge was wrong on this issue.

25.In addition, his grounds pertaining to the lack of language and legal assistance were not raised in his leave application before the judge of the Court of First Instance.  Therefore, it is not open to him to complain that the judge failed to consider the significance and level of unfairness in relation to the lack of language and legal assistance.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds have failed at the court below^[4]. In any event, these grounds are bound to fail.  The applicant already had the benefit of legal representation in presenting his case to the Director and interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by duty lawyer.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[5] and the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12. 

26.For the above reasons, we decline to exercise the discretion to grant relief from sanction and dismiss the summons filed on 25 May 2021.

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1207

[2] Re Darlami Bharat Kumar [2020] HKCA 933 at §15

[3] See record of hearing on 8 January 2020 in HCAL 1848/2018

[4] Re Qadir Sher [2018] HKCA 160 at §11

[5] Re Paswan Shibu Lal [2018] HKCA 249 at §21