ATUKUNDA GRACE FLAVIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 265 /2020

[2021] HKCA 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2020

(ON APPEAL FROM HCAL NO 336 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Chu and Barma JJA) handed down on 6 January 2021 ([2021] HKCA 8). The Court of Appeal rejected her appeal against the decision of Campbell-Moffat J on 30 June 2020 ([2020] HKCFI 1402) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction.  As the applicant had applied for legal aid, these proceedings were stayed until 16 March 2021 pursuant to section 15 of the Legal Aid Ordinance (Cap 91).  The Registrar of Civil Appeals therefore extended the deadline for the applicant to lodge written submissions to 30 March 2021.  The applicant failed to lodge written submissions as directed.  Having considered the papers, we think it is appropriate to determine this application on paper and will proceed to do so.

3.  The applicant is a national of Uganda.  She came to Hong Kong as a visitor on 14 March 2013.  She subsequently overstayed and lodged a non-refoulement claim on 5 April 2013.  Her claim was made on the basis that she would be harmed or killed by a lady called Nansubuga Doreen Kabalega (“Doreen”), Doreen’s husband, the applicant's ex-husband and the resident district commissioner if she is to be returned to Uganda.

4.  Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 23 August 2016 and 26 July 2017 respectively.  Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“the Board”) on 12 January 2018.

5.  She filed a Form 86 on 5 May 2018 to seek leave to apply for judicial review against the decision of the Board.  The application was refused by Campbell-Moffat J on 30 June 2020.

6.  On 13 July 2020, the applicant filed a notice of appeal against the decision of the judge.  The hearing of the appeal was vacated as the applicant failed to comply with the court’s directions to lodge her skeleton argument by the prescribed time.  Her appeal was dismissed by the Court of Appeal on 6 January 2021.  The applicant filed a Notice of Motion on 15 January 2021 for leave to appeal to the Court of Final Appeal.

The grounds of appeal

7.  In her Notice of Motion, the applicant stated the following grounds of appeal:

(1)  No medical evidence was sought in the evaluation of the applicant’s claim so her mental health was not adequately considered as part of the assessment. If a claimant’s mental condition is in dispute, the Board may require the claimant to undergo a medical examination as per section 37ZC(a) of the immigration Ordinance (Cap 115);

(2)  As the applicant was unrepresented in her claim before the Board, she could not have reasonably been expected to undergo a medical examination prior to the Board hearing.  Therefore, the Board’s conclusion in paragraph 66 of the decision that there is no medical evidence to indicate that her memory was affected by her mental or physical condition is unfair.  The lack of medical evidence was considered a factor in the Board’s decision and the Board was well within the purview of the Immigration Ordinance to require a medical examination be conducted prior to making a ruling.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  The applicant’s grounds were not raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings. 

10.  In any event, the applicant has not provided any credible evidence to refute the Board’s finding that she will not face a real risk of harm from any person upon her return to Uganda.  Moreover, she has not demonstrated that the Court of Appeal was wrong in dismissing her appeal and has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

11.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 15 January 2021.