Mohsin Ejaz v. Torture Claims Appeal Board

HCAL 887/2018

[2020] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 887 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Pakistan who first raised a torture claim with the Immigration Department in 2007 on the bare assertion that he would be killed by his enemies upon his return to his home country, but after he was released on recognizance pending determination of his claim, and before he had filed any Torture Claim Form (“TCF”)in support of his claim or attended any screening interview before an immigration officer,he absconded in 2012 and went into hiding in Hong Kong until 20 July 2016 when he in writing informed the Department that he wished to withdraw his claim which was accepted by the Director of Immigration (“the Director”), and no further action was taken regarding his claim. 

2.On 5 July 2017 the Applicant wrote to the Immigration Department to request to re-open his claim.

3.By a letter dated 13 July 2017, the Department required the Applicant to provide information and supporting evidence within one week of any change of circumstances that he could not have foreseen when he withdrew his claim for their consideration pursuant to section 37ZE(2) of Part VIIC of the Immigration Ordinance, Cap 115 which provides that:

“ … a torture claim that has been withdrawn under subsection (1) may be re‑opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re‑open the claim.”    

4.There was however no response from the Applicant, and by a Notice of Decision dated 1 August 2017 the Director found that he had failed to provide any information or documentary evidence to show that there has been a change of circumstances that could not have been foreseen by him when he gave the notice of the withdrawal of his claim, or that when taken together with the material previously submitted for the claim could increase the prospect of success of his claim, or that there is any special circumstances that would make it unjust not to re-open his claim, and therefore refused his request to re-open his claim.

5.On 22 September 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s Decision, but he was then out of time with his filing, as section 37ZS of the Ordinance requires that the notice of appeal must be filed within 14 days of the Director’s decision unless late filing is allowed by the Board.

6.As the 14-day period for the Applicant to file his Notice of Appeal against the Director’s Decision of 1 August 2017 expired on 15 August 2017, and even adding in a few extra days for the mail process, the Applicant would still be more than one month late with the filing of his Notice of Appeal.

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 than 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 [2019] HKCA 430, 8 April 2019, 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.

Dated the 8^th day of January 2020.

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