Mehmood Sajid v. Torture Claims Appeal Board

HCAL 279/2017

[2018] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 279 OF 2017

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by the Honorable Madam Justice D’Almada Remedios

Leave to apply for Judicial Review refused

Observations for the applicant:

1.The Applicant is a torture claimant.  His non-refoulement claim was refused by the Director of Immigration by way of a decision (“the Director’s Decision”) dated 2 November 2016. 

2.Under s 37ZS(1) of the Immigration Ordinance (Cap 115) (“the Ordinance”), the Applicant had 14 days from the date of the Director’s Decision to file an appeal against it to the Torture Claims Appeal Board (“the Board”).  The 14-day period expired on 17 November 2016.

3.The Applicant filed his notice to appeal the Director’s Decision on 28 November 2016.  The notice was late by 11 days. 

4.The Board refused the Applicant’s application for late filing of the Notice of Appeal by its decision (“the Board’s Decision”) dated 4 May 2017.

5.The Applicant seeks leave to judicial review the Board’s Decision.

6.In the Applicant’s affirmation he sought leave to raise the following grounds in support of his application:

(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:-

(i)   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. 

(ii)   The Immigration Department were 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. 

(iii)  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. 

(iv)   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.

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

(vi)   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.

7.At the hearing of the leave application the Applicant raised an additional reason for his late filing and that was that the Director’s Decision had been sent to his previous address which was the incorrect address. 

8.The Applicant claimed that the Director’s Decision was sent to his previous address despite him having supplied his new address to two separate Immigration officers on 20 September 2016.  On one occasion it was during his screening interview and on the other occasion it was to an officer at the Immigration Counter at Kowloon Bay.  

The Board’s Decision

9.The Board properly set out and considered the law under Section 37ZT of the Immigration Ordinance (the Ordinance) for Late Filing of Notice of Appeal.

10.The Applicant’s reasons as stated in the notice were as follows :

“Because I don’t understand this document. Matakok Immigration give me 25/11/16. I take this document. Sorry Sir/ Sorry Madam.”

11.The Board considered the reasons as put forward by the Applicant and at paragraph 11 stated-

“In section 5 of the Notice of Appeal, the Applicant alleged he received the decision from the Immigration Department on 25 November 2016. However, it is regretted he did not file any evidence to support his allegation.”

12.At paragraph 12 the Board went on to say :-

“he also alleged in section 5 that he does not understand the decision sent to him. I note from the immigration history of the applicant in the decision that he was released on his fifth recognizance since 4 August 2016. Therefore, he was at liberty at the date of the decision and thus he was able to seek further assistance and advice from the duty lawyer service which had acted for him in filing his non-refoulement claim.”

13.At paragraph 13 the Board concluded:

“There are no other matters known to me or revealed by the factual basis the applicant’s claim, which might amount to special circumstances, which would make it unjust not to allow late filing of the Notice of Appeal/Petition”

Consideration of Application

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.  

Dated 30^th day of January 2018

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1