RE MONPE JANET

CACV 332/2021

[2021] HKCA 1760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2021

(ON APPEAL FROM HCAL NO. 2454 OF 2020)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 21 June 2021 in which he refused to grant her leave to apply for judicial review.

2)  Factual background

2.  The applicant is a national of Uganda.  She last arrived in Hong Kong by air in July 2012.  Upon custom clearance at the airport and medical examination, she was found to be trafficking dangerous drug internally.  In January 2013, she was convicted and sentenced to imprisonment of 12 years and four months.  She raised a non-refoulement claim in March 2018.  She is currently still detained.

3.  The basis of the applicant’s claim is that she would be harmed or killed by a drug dealer named Martin upon her return to Uganda.

4.  The background facts have been summarized in the decision of the Judge at [5]-[6].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 27 September 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 23 October 2020, the Board dismissed the applicant’s appeal on 19 November 2020 (‘the Board’s Decision’).

7.  The Board found that while the applicant was consistent as to the central issues regarding her claims, only vague explanations were provided as to why the alleged drug dealer would continue to search for her or her family members if and when she chooses to return to Uganda.  Further, none of the country of origin information available shows that a person with the applicant’s profile would risk harm upon return.  There was no information that returning drug traffickers to Uganda would face violence of the kind as claimed.  The applicant’s expressed fears were based on speculation and no persuasive evidence has been provided to indicate otherwise.

5)  Decision of the Judge

8.  The applicant did not specifically state any grounds for leave for judicial review in her Form 86 and supporting documents.  The Court invited her by letter to make written submissions to support her case.  She did so and indicated that she has already submitted all documents she was able to produce to support her case.  She asked to be allowed to stay in Hong Kong and repeated her fear of safety.

9.  The Judge held that the Board has found that there was no evidence available to show that the drug dealer was continuing to look for the applicant.  The Board has given full reasons for this decision. The Judge cannot find error of law in the Board’s Decision.  There was a lack of any reasonable prospect of success.

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated that the Court relied on the Director’s Decision.  She stated that the Judge erred in finding ‘there was no state protection available’.  She stated that the Judge erred in finding ‘there was procedural fairness’.  She stated that the Director needs to re-assess her case and consider ‘additional grounds’. We take it that the applicant probably meant the Judge erred in finding 1) there was state protection and 2) there was no procedural unfairness.

11.  In her written submission dated 21 October 2021, the applicant referred to the background of her case.  They include matters such as the drug dealer trying to kill her, reference to news clip of other people who had been murdered, her home country not being able to take care of its own citizens, she was forced into being a mule, and she will behave in Hong Kong and her wish is to stay in Hong Kong.  Her submission was filed late but nonetheless we will consider the submission.

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against a refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None has been shown.

14.  We see no basis to disturb the Judge’s decision. Accordingly, the appeal is dismissed.