Aspilan Brenda Mendijar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 223/2021, [2023] HKCA 1180

On Appeal From [2021] HKCFI 1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 223 OF 2021

(ON APPEAL FROM HCAL NO 2266 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.On 22 February 2023, the applicant filed a Summons in this court asking us to “review the decision regarding [her] case” after her appeal was dismissed upon her failure to comply with an Unless Order made on 20 August 2021.

2.On 23 February 2023, the Registrar of Civil Appeals directed that the said Summons be treated as an application for relief from the sanction imposed under the Unless Order.

Background

3.By a decision dated 26 April 2021 ([2021] HKCFI 1138, “the JR Decision”), Deputy High Court Judge To (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board concerning her non-refoulement claim.

4.6 May 2021, the applicant lodged a Notice of Appeal seeking to appeal against the JR Decision. The Registrar of Civil Appeals directed on 24 June 2021 that the applicant should on or before 8 July 2021 lodge with the court, inter alia, a Supplementary Notice of Appeal and two sets of appeal bundle consisting of various documents listed in the directions (“the Registrar’s Directions”).

5.As the applicant failed to comply with the Registrar’s Directions, the Registrar of Civil Appeals ordered that unless the applicant lodges with the court a Supplementary Notice of Appeal and two sets of appeal bundle by 26 July 2021, the Registrar of Civil Appeals may, without further notice, refer this application to the Court of Appeal for consideration of imposition of an unless order, which provides for the consequence of default to be the dismissal of the application without further order (“the Registrar’s Unless Order”).

6.As the applicant failed to comply with the Registrar’s Unless Order, Yuen JA made an Unless Order on 20 August 2021, ordering that unless the applicant lodges with the court two sets of appeal bundle by 4:00 pm on 17 September 2021, the appeal shall stand dismissed without further notice (“the CA Unless Order”).

7.The applicant failed to comply with the CA Unless Order, and the appeal was accordingly dismissed on 17 September 2021.

8.In respect of the present Summons for relief from sanction, the Registrar of Civil Appeals gave directions on 23 February 2023 for the lodging of application bundle and written submission. The Registrar of Civil Appeals also directed that the applicant will be deemed to have waived her right to rely on written submissions, and the Court of Appeal will proceed to determine the application based on available materials if no written submission or application bundle is lodged by the prescribed deadline.

The present application

9.As the applicant failed to lodge any written submissions with this court, she is deemed to have abandoned her right to rely on the same.

10.Having considered the applicant’s Summons, we consider it appropriate to determine the present applications on the papers. We have, therefore, determined the applicant’s application on the basis of the documents filed.

11.Order 2 rule 4 of the Rules of the High Court (“the RHC”) provides that:

“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.”

12.Under Order 2 rule 5(1) RHC, in determining an application for relief from sanction imposed due to the failure to comply with a court order, the court shall consider all the circumstances, including, inter alia, 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.

13.In the present case, the Unless Order required the applicant to comply with the court’s directions by no later than 4:00 pm on 17 September 2021. The deadline for the applicant to apply for relief from sanction expired on 4 October 2021. The Summons was not filed until 22 February 2023. The application for relief has not been made promptly.

14.In her affidavit filed on the same day, she said she was late “to apply for the judiciary because [she] didn’t receive any letter regarding [her] case”. However, the Court file showed that the CA Unless Order was posted to her last known address on 20 August 2021 and was not returned as undeliverable post. Further, if she did not receive the CA Unless Order, she did not explain how she then came to file the Summons six months later, in February 2023. We are therefore of the view that the applicant has proffered no good explanation for the failure to comply with the Unless Order.

15.Further, the appeal has no merits. In the Summons, the applicant stated that the court has disregarded her dangerous situation and reiterated the problem she faced in her country. In the JR Decision, the Judge noted the Board’s finding of fact that the applicant’s husband only assaulted her when he was drunk but would later express regret for his actions and has said he intended to reform. There was no suggestion that he would harm her if she lived away from the family home. The Board was satisfied that she could safely relocate. Further, the Board found that her husband’s relatives also generally took steps to protect her from him. The Board also considered that there was no real possibility of her being prosecuted in the Philippines for adultery in Hong Kong.

16.The Judge then dealt in detail in the JR Decision with her complaints against the Board. He noted she was not prejudiced by her alleged lack of language assistance, noted that the Board had not made use of any COI against her, rejected her complaint of lack of sufficient reasons given that the Board had given full reasons in a 16-page decision, and pointed out that the Board had reached its decision based on findings of fact which are not amenable to judicial review.

17.In the Notice of Appeal, the applicant did not state any ground for appeal against the JR Decision, nor can we see any errors in it. Therefore, it would be futile and not in the interest of the administration of justice to grant relief and allow the applicant to proceed with an appeal which is bound to fail.

18.For the above reasons, we refuse to grant relief from the sanction imposed by the CA Unless Order.

Disposition

19.The Summons filed on 22 February 2023 is dismissed.

The applicant, unrepresented, acting in person