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Re Chaudhary Muhammad Mobeen

Judgment Cited authorities 19 Cited in 1 Precedent Map Related
Vincent
Judgment Date05 October 2018
Neutral Citation[2018] HKCA 663
Year2018
Judgement NumberCAMP73/2018
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP73/2018 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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RE: CHAUDHARY MUHAMMAD MOBEEN
@ CHAUDHRY MUHAMMAD MOBEEN 		Applicant

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 5 October 2018

____________________

J U D G M E N T

____________________


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...

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1 cases
  • Re Chaudhary Muhammad Mobeen
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 31 January 2019
    ...(Carlye Chu) (Aarif Barma) (Ian McWalters) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 663 [2] See Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo, CACV 65/2014, unreported, 19 May 2015, at [7] to [9]; and The Law Society of Hon......

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