RE CHAUDHARY MUHAMMAD MOBEEN

CAMP 73/2018

[2018] HKCA 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 73 OF 2018

(ON APPEAL FROM HCAL 737/2017)

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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.  By a summons filed by the applicant on 24 May 2018, the applicant seeks an extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam given on 9 May 2018 refusing leave to apply for judicial review. Although the Form 86 and the supporting affidavit referred to the Director of Immigration (see [10] below), the deputy judge, having considered the papers, considered that the intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 28 September 2017.

Background

2.  According to the applicant, he is a Pakistan national and a Sunni Muslim.  The applicant first came to Hong Kong in 2002 as a visitor.  He applied for refugee status with UNHCR in Hong Kong in 2005.  Yet, he did not proceed with that application.  He simply overstayed here.  Later, he was arrested and repatriated to Pakistan in 2005.

3.  In July 2008, the applicant came to Hong Kong again to seek non-refoulement protection. This time, he claimed he fell in love with a girl called Nasreen in Pakistan in 2006.  The girl was a Shia Muslim.  Her two brothers were Shahid Shah and Munir Shah.  The two brothers were associated with the ruling party Pakistan Muslim League (N).  The brothers were influential and had connection with the government and the police.  They disapproved of the love affairs between Nasreen and the applicant because of their religion difference.  They threatened to kill the applicant.  The applicant had been attacked on a number of occasions by the brothers and their hired men.  On one occasion, one of the brothers even pointed a pistol at the applicant and threatened to kill him.  In 2007, Nasreen’s family falsely reported to the police that the applicant had abducted the girl.  They continued to make false allegations against the applicant. The applicant moved to live in other places but his family were harassed by the police.  Finally, the applicant felt that he had to flee for his life.  He came to Hong Kong illegally on 18 July 2008 and was arrested on 4 August 2008.  

4.  On 10 August 2008, he made a torture claim, alleging Nasreen’s brothers threatened to kill him because of his love affairs with Nasreen and also because he was a Sunni whereas they were Shia.

5.  The applicant claimed that after he had left Pakistan his family continued to be harassed. His father was attacked and finally died of a heart attack two years ago.  The applicant heard from a friend in Pakistan that Nasreen’s brothers had bought guns to kill him.

6.  In the present case, the applicant's torture claim was refused by the Director on 24 April 2012.  In the subsequent screening process, the Director refused the applicant’s claim on the three remaining applicable grounds: (i) persecution risk, (ii) CIDTP risk (or BOR3 risk) and (iii) life risk (or BOR2 risk). The Director’s decision was made on 17 May 2017.

7.  On 5 June 2017 the applicant filed a Notice of Appeal to the Board.  It was beyond the 14‑day limitation period prescribed by s. 37ZS(1) of the Immigration Ordinance, Cap 115 (“IO”). 

8.  Under section 37ZT(2) of the IO, the Board had to decide whether to allow the late filing of the notice.  In the Board’s Decision dated 28 September 2017, the Board did not accept the applicant’s explanation that he only received the decision of the Director dated 17 May 2017 on 22 May 2017.  It further held that even if the applicant’s explanation were true, the applicant would still have sufficient time to submit the notice if he so wished.  The Board did not allow the late filing of the notice.

The deputy judge’s decision

9.  The applicant filed a Form 86 on 6 October 2017.  The Form 86 contained no ground for seeking relief. 

10.  In the affirmation in support of the leave application dated 6 October 2017, the applicant stated that “I hereby request you for the judicial review against Director of Immigration.  I am not satisfied with the Decision of the Director of Immigration Dept.  Please see the attached document exhibit 1.  Please look into the matter.  Thanks for your assistance.”  Exhibit 1 was the Board’s Decision dated 28 September 2017.

11.  The applicant did not request an oral hearing.  The deputy judge decided to deal with the application on paper.

12.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the deputy judge refused to give leave to apply for judicial review.  The deputy judge gave the following reasons at paragraphs 23 to 37 of the CALL-1 form:

“23. The Director’s notice of decision was sent on 17 May 2017 by post to the Applicant’s stated address. That is deemed to be the date when such notice was given to the Applicant.

24. Within Hong Kong, mail would reach a designated address in a day or two. Hence, even if the Applicant did not receive the Director’s notice of decision on the next day after posting, i.e., 18 May 2017, he would still get it no later than 19 May 2017.

25. The Applicant, however, alleged in his notice of appeal to the Board dated 5 June 2017: –

‘This document I received on 22 May 2017. Because of this, I got late.’

26. The Applicant alleged he got the Director's notice of decision only five days after it had been posted to his address. The Adjudicator considered there was no evidence to support the Applicant’s assertion that he received the notice so late. Furthermore, the Adjudicator was of the view that even if the Applicant only received the Director’s notice on 22 May 2017, the Applicant would still have enough time to file his appeal within the 14-day limitation period after 17 May 2017.

27. The Adjudicator was of the view that the statutory regime governing late filing of appeal was strict. He cited s. 37ZA(1)(b) of the Immigration Ordinance…

28. According to s. 37ZT(1), the Applicant in filing appeal late must include a statement of the reasons for failing to file the appeal notice within time and he must also submit documentary evidence which he would rely on in support of the reasons for his late application.

29. In the present case, there was none of those. The Applicant only alleged to the Adjudicator in writing that he received the Director’s notice late, on 22 May 2017.

30. The Applicant’s claim that he received the Director’s notice of decision late was a bare assertion. He failed to produce any supporting evidence. For example, he could have produced the stamped envelope to show the postdate of the notice, or evidence to the effect that the notice had been sent to a wrong place and thus had to be re delivered to him so that he only got it on 22 May 2017. The Adjudicator was right to find the Applicant failed to satisfy the statutory requirement of s. 37ZT(1) of the Immigration Ordinance, which demanded proof of justification for filing appeal late.

31. Nevertheless, the Adjudicator went on to consider whether it was unjust not to allow the late filing of appeal. He considered that even if the Applicant received the Director’s notice as late as 22 May 2017, the Applicant would still have sufficient time to file his appeal within the 14-day limitation period after 17 May 2017.

32. The Applicant’s non-refoulement claim was a straight-forward one. There is no evidence that it had become more difficult for appeal. The Applicant failed to demonstrate that he had a lot to do for the preparation of his appeal. The appeal process was not difficult either. The Adjudicator was right to say that even if the Applicant received the Director’s notice only on 22 May 2017, he would still have sufficient time to file his appeal within the 14-day limitation period (ending on 31 May 2017). Yet, the Applicant only filed his appeal on 5 June 2017. He was thus late in his appeal filing by five days. It was not a long period but it was still an undue delay.

33. The Adjudicator was right to rule that the statutory requirement in the Immigration Ordinance was to be followed strictly. The provisions should not be applied in a technical manner. However, a disciplined approach must be adopted, otherwise the regime of public law would be thrown into confusion and good administration could not be achieved.

34. It was the Applicant’s duty to justify his late filing of appeal to the Board. He failed to do so. Even in the current application for leave for judicial review, the Applicant still failed to prove he only got the Director’s notice of decision as late as 22 May 2017. He also failed to show that the appeal preparation had to cost him time so that he could only file his appeal to the Board late on 5 June 2017.

35. In my judgement, the Adjudicator had proper basis for his decision to reject the Applicant's late filing of appeal in the circumstance. His decision was not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

36. The Director is only an interested party in the current application for leave for judicial review. For the sake of ‘rigorous examination and anxious scrutiny’, I review the Director’s decision dated 17 May 2017. I am satisfied that the Director had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Director had engaged in proper joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Director showed he was acquainted with the facts and the law. He considered the Applicant's case carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions as he did and those findings/conclusions/decisions were all reasonable. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

37. The Applicant’s complaint is not reasonably arguable; he has no realistic prospect of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

13.  According to the court record, a copy of the CALL-1 form and the sealed of the deputy judge’s order were sent to the applicant on 9 May 2018.

Application for extension of time to appeal and grounds for appeal

14.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 24 May 2018, he applied for an extension of time to appeal and also sought leave to advance a new ground of appeal. 

15.  His application is supported by an affirmation dated 21 May 2018.  He said that when he was acting in person before the judge, he overlooked a good “ground of appeal” (understood to mean a ground for judicial review).  After taking legal advice he would like to advance this new ground:

“The Director and Adjudicator failed to make sufficient enquiring before finalizing the determination. They stated that I have failed to [advance] any credible evidence to prove material elements of my claim. They failed to give me sufficient chance to arrange relevant evidence to my non-refoulement claim as well as my appeal”

16.  As the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 25 May 2018 and 26 May 2018, the applicant was debarred from lodging any written submission and the application was dealt with on paper on the basis of the materials already filed before the court.

General principles

17.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]-[15]:

“14. …

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

15. Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.”

18.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this court to reverse the decision of the judge.

Discussion

19.  The applicant has not provided any explanation for his delay in bringing the intended appeal.  However, as he was only one day late, we think it appropriate to focus on the merits of the intended appeal.  As to these, having read the materials available to us, we are satisfied that the deputy judge’s observations are justified in light of the grounds raised and the materials before him.  The only ground for judicial review before the deputy judge was the plea to “look into the matter”.  This provides no basis for judicial review. 

20.  The applicant does not actually suggest that the decision below was wrong.  He seeks leave to appeal only on the basis of the new ground sought to be advanced.

21.  Applying the general principles identified earlier in this judgment, we would not allow the applicant to rely on the new ground raised in his affirmation dated 21 May 2018.  This ground was only raised at the appeal stage, and not in the proceedings below.  No satisfactory reason has been given as to why it was not raised in the proceedings below.  On the materials before us, this new ground is in any event unarguable.

22.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant an extension of time to bring a hopeless appeal.  The summons of 24 May 2018 is dismissed accordingly.

23.  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.