RE MEHMOOD SAJID

CAMP156/2019

[2021] HKCA 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 156 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 279/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of D’Almada Remedios J given on 30 January 2018 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 May 2017 refusing the late filing of the appeal against the decision of the Director of Immigration dated 2 November 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 29 August 2009 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 31 August 2009. 

3.  In short, the applicant’s claim was based on threats from his relatives arising out of a land dispute.

4.  By a Notice of Decision dated 2 November 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  As the applicant was late in filing the Notice of Appeal/Petition, the Board had to decide under section 37ZT(2) of the Immigration Ordinance, Cap 115 whether to allow the late filing of the notice.

6.  After considering the applicant’s explanation for the delay, the Board held that the delay was inexcusable and refused to allow the late filing of the notice.  The Board handed down its decision on 4 May 2017 (“the Board’s Decision”). 

The judge’s decision

7.  The applicant filed a Form 86 on 9 June 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 9 June 2017, the applicant advanced the following grounds for judicial review which are summarized below:

(1)     There was a procedural impropriety of the Board’s Decision in its failure to consider his grounds for his late lodging of his appeal in failing to conduct an oral hearing prior to refusing his application.

(2)     The Board’s Decision was unfair in that it failed to take into consideration:-

(a)   The Applicant was late by 12 days only.

(b)   The Applicant only received the Director’s Decision on 25 November 2016 at the Ma Tau Kok offices of Immigration Department (ID) when he went to report. 

(c)   The Immigration Department was unable to contact him through his mobile phone as it was kept by the Police and thus he only received the Director’s Decision on 25 November. 

(d)   The following two days after receiving the Director’s Decision was the weekend of 26 and 27 November and on the 28 November 2016 he immediately lodged his notice for late filing of his appeal. 

(e)   The Applicant claimed that he knew that he had 14 days to lodge an appeal to the Board against the Director’s Decision therefore did so on the first working day after receiving the Director’s Decision.

(f)   The Applicant relied on the fact that as he was not an educated man, he did not understand the Director’s Decision. 

(g)   Further as he was uneducated, he was not able to give sufficient reasons for the late lodging of the notice of appeal and did not know how to fill in the notice.

9.  The applicant also advanced the following grounds against the Director:

(1)     the Director failed to conduct critical analysis of the Country of Origin Information (COI);

(2)     the Director did not provide any reason as to why some COI material was preferred over other contradictory material; and

(3)     the Director cherry-picked COI material.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [27] of the CALL-1 Form:

“14. Section 37ZT (ie, the section under which the Decision was made) deals with an application for the late filing of a notice of appeal. It provides as follows:

‘37ZT Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14 day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

Notice to Immigration Officers of change of the Applicant’s address and claim that Director’s Decision was sent to the wrong address

15.    The change of the Applicant’s address or the Director’s Decision being sent to a wrong address was not stated in the Applicant’s reasons in his Notice of Appeal.  If the Applicant’s reason for not receiving the Director’s Decision was that it was sent to a wrong address it should have been stated clearly in the Notice of Appeal.  The Board can only take into consideration the statement of reasons filed in the Notice of Appeal and any documentary evidence relied on in support (see section 37ZT(2)(a) above). 

16.    It is appropriate to note however that the Director’s Decision (dated 2 November 2016) was sent to a different address to the address the Board acknowledged the Applicant’s filing of his Notice of Appeal (dated 28 November 2016).  There is therefore evidently on the papers before me two different addresses of the Applicant.  The Applicant says that letter addressed to him by the Board is the correct one.  The Director’s Decision was therefore sent to the wrong address. 

17.    Although there are clearly two different addresses this was not one of the reasons relied on by the Applicant in the Notice of Appeal.  The Board’s role is not to infer, assume or contemplate on behalf of the Applicant any reasons not stated in the notice. 

18.    The Applicant claimed that at the Screening Interview on 20 September 2016 which is exhibited to the Applicant’s affirmation, he informed the Immigration Officer (IO) of his change of address.  Present at the interview were the Applicant, an interpreter, the Applicant’s legal representative and the IO.  There is no record or entry of any change of address.  The screening interview record therefore does not show that the Applicant had provided the IO with any address let alone a change of address or a new address. 

19.    What can be gleaned from the record of the screening interview is that the Applicant had requested the interview to be adjourned. Upon his application the IO directed him to provide any additional facts within 14 days (ie on or before 4 October 2016).  A reference to a letter dated 20 September sent to the Applicant was referred to after answer 4.  The immigration officer at Q5 said ‘We will contact you.’  Despite the reference to the letter and marked as Annex I, there is no record of the Applicant (or his legal representative) informing the IO, of a change of or new address.  The interview record was read back to the Applicant despite being given an opportunity to make additions, deletions or amendments he did not do so.

20.    As the change of address or the Director’s Decision being sent to the wrong address was not in the statement of reasons, there is no error of law or unfairness. 

Failure to conduct an oral hearing for his late filing of appeal

21.    There are no arguable grounds in the Board not giving an oral hearing to the Applicant prior to making its decision.  As stated in Section 37ZT (2) above it provides that the Board must decide, as a preliminary decision without a hearing and take into account the statement of reasons stated in the application for late filing of the notice of appeal. 

22.    There was therefore no procedural impropriety in not conducting an oral hearing prior to rejecting the application for late filing of the Notice of Appeal. 

Unfairness in not considering the Applicant was not educated, did not know how to fill in the Notice of Appeal, did not have his mobile phone and the Applicant only filing his application 11 days late.

23.    In his reasons the Applicant said ‘I don’t understand this document.’  There was no reference that the Applicant was not educated, did not have his mobile phone, nor did he not know how to fill in the Notice of Appeal.  These reasons were not specified in the notice. 

24.    The Board specifically dealt with the Applicant’s not understanding in paragraph 8 of the Board’s Decision and stated that the Applicant was able to seek further assistance and advice from the Duty Lawyer Service (‘DLS’) which had acted for him in filing his non-refoulement claim. There is therefore no failure of the Board to consider this issue.  The other reasons were not relied upon and therefore not open to consideration by the Board.

25.    The Board was alive to the fact that the Applicant was only 11 days late.  At paragraph 10 the Board said:-

‘Given the strict regime governing late filing it matters not whether the delay is, as here, 11 days or whether it is much longer, the applicant is still required to establish the special circumstances which would make unjust refusal to allow the late filing.’

26.    On close scrutiny of the Board’s Decision, the Board fully considered the Applicant’s reasons for the late filing of his Notice of Appeal.  I do not find any error of law, nor a failure to adhere to a high standard of fairness. There is no procedural unfairness. 

27.    The Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I therefore refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 29 March 2019, the applicant sought leave to appeal out of time.  His application was dismissed by D’Almada Remedios J.

12.  By a summons dated 9 July 2019, the applicant sought leave to appeal against the decision refusing an extension of time.  This was not the correct application to make, but we shall treat his application as a renewed application for an extension of time to appeal made to this court.  In the summons he referred to the affirmation filed on the same day for grounds of appeal.

13.  In the affirmation, he deposed that:

(1)     there is a good ground of appeal that was not necessarily considered at the stage for applying leave for judicial review;

(2)     the Board and the Director did not see the grounds to reverse their decisions; and

(3)     the court should allow his appeal out of time because he did not have an identity document required to file the appeal.  The Immigration Department took its time to provide him with a copy. 

14.  In his skeleton submissions dated 24 July 2019, the applicant submitted that:

(1)     the Board acted unfairly by not properly assessing his credibility; and

(2)     the Board acted unreasonably when it only took into account “the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons” and “any other relevant matters of fact within the knowledge of the Board”.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  The applicant claimed that he was late in bringing the appeal because he did not have an identity document required to file the appeal.  He did not give any details of the difficulty he allegedly encountered when filing the appeal.  He also did not explain how he was able eventually to file the summons for leave to appeal out of time after more than a year.

17.  We do not consider that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Notwithstanding that the delay was substantial, we shall nonetheless go on to consider the merits of the intended appeal.

18.  The affirmation dated 8 July 2019 does not identify any proposed ground of appeal (other than to assert that there is one).  The written submission complains of errors on the part of the Director and the Board, but does not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

19.  We therefore do not see any prospect of success in the intended appeal.  We will not grant an extension of time for a hopeless appeal, and the summons of 9 July 2019 is dismissed accordingly.

20.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.