RE MOHSIN EJAZ

CACV 12/2020

[2020] HKCA 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 12 OF 2020

(ON APPEAL FROM HCAL 887 OF 2018)

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J U D G M E N T

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Hon Wong J (giving the Judgment of the Court):

The appeal

1.  This is the appeal of the abovenamed applicant against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 January 2020, refusing to grant him leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 22 March 2018.  In that decision, the Board refused to allow the applicant to file late a Notice of Appeal against the decision of the Director of Immigration (“the Director”) dated 1 August 2017 rejecting his Non‑refoulement claim.

2.  On 9 January 2020, the applicant filed a Notice of Appeal against the Judge’s decision.  The grounds of appeal, as set out in Enclosure 1 of the Notice, are however in relation to the decision respectively of the Director and determination of the Board[1]. On 1 June 2020, pursuant to the direction of the court[2], the applicant filed Supplemental Notice of Appeal.

Background

3.  The applicant is a Pakistani national who first raised a torture claim with the Director on 19 January 2007. The applicant’s claim was based on the fear that, if he was to return to Pakistan, he would be harmed or even killed by his enemies.[3]  No other details of the basis for the applicant’s claim are known as he absconded before submitting a torture claim form.

4.  According to the Director’s records, the applicant had absconded from 1 February 2012 until 20 July 2016 when he informed the Director that he wished to withdraw his claim.  However, about one year later, on 5 July 2017, the applicant requested that the Director re‑open his claim.

5.  Due to his previous withdrawal, the applicant must provide the evidence requested under section 37ZE(2) of the Immigration Ordinance (“the Ordinance”)[4] to support the re-opening of his claim.  By a letter dated 13 July 2017, pursuant to section 37ZE(2) of the Ordinance, the Director requested the applicant to provide by 20 July 2017 the followings:

(1)  detailed reasons for the withdrawal of his claim;

(2)  evidence of change of circumstances:

(a)  that were not reasonably foreseeable at the time of withdrawal; and

(b)  which could increase the claim’s prospect of success; and

(3)  any special circumstances for which it would render it unjust not to re‑open the claim.

6.  The applicant made no response.  The Director by the notice of decision dated 1 August 2017 informed the applicant that his claim would not be re-opened.

7.  On 22 September 2017, the applicant appealed to the Board against the Director’s decision not to re‑open his claim.  As the applicant’s Notice of Appeal to the Board was filed late, he was required to state his reasons for late filing.  The applicant’s stated reason was that he did not receive any letter from the Immigration Department.[5]  On 22 March 2018, the Board refused to allow the late filing of the applicant’s Notice of Appeal.[6]  The Board said the explanation of the applicant for late filing was not accepted as it was considered to be a bare allegation without supporting documentary evidence.  The Board also took into account that the applicant failed to explain how he eventually came to know the Director’s decision.

8.  On 21 May 2018, the applicant sought leave to apply for judicial review against the Board’s decision.

9.  The grounds based on which the applicant sought relief[7] can be seen at paragraph 10 of the Judge’s observation quoted in the following paragraph.

Decision of the Judge

10.  Following a hearing on 18 September 2019 at which the applicant attended in person, the Judge on 8 January 2020 refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [7] ‑ [20] of the Form CALL‑1[8] as follows:

“7. For the late filing of a notice of appeal, section 37ZT provides as follows:

(1) If a notice 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.

8. In section 5 of his Notice of Appeal, the Applicant included an application for late filing with a statement of the reasons for his delay as follows:

‘I am filing late because I don’t receive any letter from Immigration department. Thank you for considering my appeal on late date.’

9. By a Notice of Decision dated 22 March 2018, the Board, by way of a preliminary decision without a hearing, found that the Applicant had failed to make out a case to justify his application for late filing, that there was no special circumstances that it would be unjust not to allow the late filing of his Notice of Appeal, and therefore refused his Notice as it was filed out of time.

10. On 21 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) that the Board erred in failing to maintain high standard of fairness by not administering that its decision be delivered to the Applicant within reasonable time and as a result the Applicant had suffered prejudice as he was not given the reason for refusal of his appeal; and

(2) that the Board failed to apply the minimum standards of procedural fairness required in the decision-making process.

11. These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision,and that Ground (1) even if true cannot be accepted as any valid ground to challenge the decision. As such I do not find either ground reasonably arguable for his intended application.

12. Nevertheless, the Court will adopt an enhanced standard in scrutinizing the Board’s decision in view of the seriousness of the issues at hand, of which I shall focus on the Board’s reasons for refusing to allow the Applicant’s late filing of his Notice of Appeal.

13. The Board’s findings on the Applicant’s reasons for his late filing are in paragraph 9 of its decision as follows:

‘Having gone through all the documents I find that the Petitioner has not made out a case which justified his application for late filing of because:-

(i) It was only a bare allegation that he did not receive any letter.

(ii) What he needed to attend to was the Notice of Decision not just any letters.

(iii) If he had not received any letter how could he know of the Notice of Decision. That caused for an explanation.

(iv) Section 5 of the Notice of Appeal/Petition stated clearly that he had to submit relevant documentary evidence in support of such reasons. For example if he had received the Notice of Decision by letter then he should exhibit the post chop on the envelope. If he had the service of the duty lawyer, a letter or affidavit from Duty Lawyer Service.

(v) At the least he should have stated when and how he came to know of the Notice of Decision.

(vi) A bare statement that he did not receive any letter is totally unacceptable.

(vii) As stated in both the Notice of Decision and the Notice of Appeal/Petition he had to submit the document within 14 days. The delay of 1 month and 5 days I consider the period as an inordinate delay and cannot be accepted.’

14. On the basis of the information provided by the Applicant in his Notice of Appeal and referred to by the Board above, I agree with the Board’s finding that the Applicant’s explanation for his late filing of his Notice of Appeal by more than one month was in the circumstances wholly inadequate and not acceptable.

15. Having made those findings as above, the Board then concluded in paragraph 10 of its decision that there being no special circumstances that it would be unjust not to allow the late filing, it therefore refused the Applicant’s Notice of Appeal as it was filed out of time.

16. Whilst the Court of Appeal has held in Re Qasim Ali[9] that regardless of the procedural breaches or the lack of explanation therefor, the Board should take account of the merits of the appeal in its determination of whether there are special circumstances that would make it unjust not to allow the late filing of the notice of appeal, and although the Board in the Applicant’s case did not appear to have said so in its decision, upon a close examination of what the Applicant had stated for his grounds of appeal in his Notice of Appeal, I can see why it was not necessary for the Board to do so.

17. In section 2 of his Notice of Appeal, the Applicant gave the following grounds of appeal:

‘Sir, it’s a request that my situation in Pakistan is not good. That’s why my life is in danger. I am trying to fix my situation. When my situation becomes normal I will tell you by myself. Please check my case again. Very thankful to you. Thanks.’

18. As already noted above, when the Applicant first raised his claim in 2007, it was based on the same barest of assertion that he would risk being killed by his enemies in Pakistan, and as he had absconded without providing any further details or particulars by way of a TCF or otherwise to the Immigration Department before subsequently withdrawing his claim in 2016, and as he also failed to do so despite being required by an immigration officer in 2017 to provide further information and evidence in support his request to re‑open his claim, the fact therefore is that what he had stated in his Notice of Appeal as above cannot be accepted as any valid ground of appeal, and that there was therefore simply no merits of the appeal for the Board to take account of in its preliminary decision to refuse the late filing of the Applicant’s Notice of Appeal, and while the Board should have so stated clearly in its decision, in my view it would not have made any difference, nor would it assist the Applicant’s case at all.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and decision respectively not to allow the Applicant to re‑open his claim or to file his late Notice of Appeal out of time.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

11.  The grounds of appeal which the applicant stated in his first Notice of Appeal[10] are:

(1)   the Director had failed to give proper weight to state acquiescence in his case as there was collusion between the police and the high-up political circles;

(2)  the Director was unfair because he selected the Country of Origin Information (“COI”) in accordance with his pre‑conceived conclusion and he did not give proper weight to the information in support of his case;

(3)  the Director had failed to consider that corruption is serious in Pakistan and the administration of the government is incompetent;

(4)  the Director had failed to maintain high standard of fairness;

(5)  the Adjudicator had not made sufficient enquiry before making decision;

(6)  it was unreasonable for the Adjudicator to ask the applicant to adduce evidence to prove his case because the applicant was being detained; and

(7)  the applicant was not given sufficient chance to adduce the evidence.

12.  The grounds which he set out in the Supplementary Notice of Appeal are:

(1)  the decisions are unreasonable;

(2)  the decisions failed to take into account many things and [issues]; and

(3)  I have life’s danger in my home country Pakistan, so why, I can’t go back [to] Pakistan.  Please help me to save my life.

13.  On 15 June 2020 this Court directed the applicant to lodge his written submission on appeal by 13 July 2020, failing which the hearing date would be vacated.  Despite the applicant lodged his appeal submissions only on 15 July 2020, this Court directed on 16 July 2020 that the appeal be heard on the restored hearing date.

14.  A substantial portion of the written submission of the applicant consists of general statements of law, without showing how those statements specifically relate to this appeal.  The excerpts from those submissions that appear to refer to facts in the applicant’s case are set out below:

“1. My name is Mohsin Ejaz and I am a Pakistani National. I have life in my home country, Pakistan. So I left my country and I came to Hong for save my life. I lodged my non‑refoulement, Later on, I attended every interview and I provided all proofs to my case Officer. But unfortunately my Immigration Case Officer, couldn’t realised the seriousness of my case. I am so disappointed from my case Officer. Because I really have serious life risks, in everywhere Pakistan.

2. I still have life danger in my home country the Pakistan.

…

4. I told [the] Immigration Officer, I have life danger in my home country the Pakistan. I came in Hong Kong only for save my life. I leave my home, my family and my properties, only for save my life. I can’t work in Hong Kong and don’t have any luxury life in Hong Kong, but I am alive.

5. My Immigration Officer just assumed in my case, he didn’t know the real situation and condition of Pakistani culture. Because, my Immigration Officer never visited the Pakistan, spacially my area and in my case. I am sure, if my case officer visit my country, he will not give this kind of Decision in my case.

…

7. My complaint is that I have been aggrieved by the Director’s, Adjudicator And before Court’s Decisions.

…

I appeal to the honourable Court, please reconsider my case and grant me leave, so that I am able to got legal assistance from Legal Aid Department, and I able to fight my claim in proper Legal ways in the The Crout.  And please review my claim, The seeking non-refoulement protection in Hong Kong, and please help me to save my life...” [sic]

15.  We heard the appeal on 18 August 2020.  At the hearing, the applicant confirmed that he had included in the papers everything in support of his appeal and has nothing to add.

Discussion

16.  In appeals of this nature, this Court is focused on reviewing the Judge’s decision to refuse leave to apply for judicial review of the Board’s decision.  It is not an occasion for regurgitating arguments advanced and rejected by the Judge.  The decision of the Judge would be reversed only if the applicant 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.  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.[11]

17.  In this case, the application for leave to apply for judicial review was substantially in relation to the Board’s decision to refuse permission for the applicant to file late a notice of appeal.  There was a delay of slightly over one month.

18.  Section 37ZT of the Ordinance[12] provides for the followings in relation to late filing of appeal[13]:

(1)  The applicant to provide information in support of the application for leave to file late, which must include[14]:

(a)  a statement of the reasons for failing to file the notice within the 14-day period; and

(b)  any documentary evidence relied on in support of such reasons;

(2)  matters which the Board may take into account in considering whether to allow late filing are confined to[15]:

(a)  reasons stated for the late filing, and supporting documentary evidence filed; and

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

(3)  if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing, the Board may allow the late filing[16].

19.  The court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board and will not interfere with its finding unless it is reversible on public law grounds.

20.  The Judge said he did not find any error of law or procedural unfairness in either of the decisions of the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and decision respectively not to allow the applicant to re‑open his claim or to file his late notice of appeal out of time.  We did not find any flaw in the decision nor its consideration process.  Despite the delay was only slightly over one month, as both the Board and the Judge justifiably found, the reason which the applicant provided for his late filing was not reasonable nor convincing.

21.  The Judge demonstrated that in his consideration he had borne in mind, and rightly so, the need for the Board to consider the merit of the appeal even if there was procedural breach or lack of explanation thereof[17].  Based on the information before him, the Judge’s assessment of the merit of the claim was that it would not afford special circumstances to make it unjust to allow late filing.  We find no reason to interfere with these findings.

22.  As regards the grounds of appeal advanced by the applicant, those set out in the first Notice of Appeal are not relevant as they relate only to the decisions respectively of the Director and the Board.  There is therefore no need for us to deal with those grounds.

23.  As regards the grounds set out in the Supplementary Notice of Appeal[18], we find no merit in any of them.

24.  The applicant, by Grounds 1 and 2, criticized that the decisions are unreasonable and that the decisions failed to take into account many things and [issues].  As explained above, in an appeal to this Court, we should examine the decision of the Judge to see if there is any error which merits our intervention.  In our view, the applicant failed to provide any justification in support of the grounds.  Plainly, he failed to demonstrate that the Judge had made errors of law or failed to take into account relevant matters placed before the court or was otherwise plainly wrong.

25.  Ground 3 relates to the merit of the applicant’s claim.  As said, there is no reason for us to interfere with the assessment, finding and conclusion of the Judge.

26.  We have in any case considered the Board’s decision and we agree with the Judge’s conclusion that the applicant’s case was not reasonably arguable, and as there was no realistic prospect of success leave to apply for judicial review should not be granted.  We do not discern any mistake in the decision made by the Judge.  In our judgment, the applicant’s explanation of late filing of his appeal against the Director’s decision was vague and unsatisfactory, in particular as he did not state when and how he came to know of the Director’s decision.  Without such details, the applicant failed to show that the delay was excusable.  Further, given his failure to respond to the Director’s letter of 13 July 2017, he had not put forward a proper case for re-opening his claim under section 37ZE[19] of the Ordinance.  As such, there is no basis to disturb the Board’s refusal to allow late filing, and thus the Judge was plainly right to refuse leave to apply for judicial review.

27.  The applicant seems to have used boilerplate appeal grounds and submissions from other applicants’ appeals against refusal of leave to apply for judicial review of decisions of the Board.  The appeal grounds and submission purportedly refer to actions and assessments made by the Director and the Board that were not in fact made in this case, and thus those arguments are irrelevant and not on point.  Applicants should be wary of using documents from other cases as they may not be relevant, and as each case should be decided on its own facts.

Disposition

28.  For the reasons set out above, we concluded that there is no merit in the appeal. Accordingly, we dismiss the appeal.

[1]  The applicant referred to this document as “the Adjudicator’s determination”.  The grounds stated are quoted in paragraph 11 below.

[2]  The direction dated 15 January 2020.

[3]  See paragraph 1 in the Form CALL-1, page 11 in the Appeal Bundle.

[4]  Cap 115, Laws of Hong Kong.

[5]  See paragraph 8 of the Board’s Decision, page 24 in the Appeal Bundle.

[6]  See pages 23 ‑ 25 in the Appeal Bundle.

[7]  As set out in the document attached to his Form 86, pages 18 ‑ 21 in the Appeal Bundle.

[8]  [2020] HKCFI 60, HCAL 887/2018, see pages 11 ‑ 14 in the Appeal Bundle.

[9]  [2019] HKCA 430, 8 April 2019.

[10]  See paragraph 2 above.

[11]  Re: Salwant Singh, CACV 164/2019, paragraph 14(3).

[12]  See footnote 4.

[13]  Full provision can be seen at paragraph 10 in this judgment.

[14]  Section 37ZT(1).

[15]  Section 37ZT(2).

[16]  Section 37ZT(3).

[17]  See Re Qasim Ali [2019] HKCA 430, 8 April 2019.

[18]  See paragraph 12 above.

[19]  See paragraph 5 above.