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CAMP 277/2021
[2021] HKCA 1633
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 277 OF 2021
(ON AN INTENDED APPEAL FROM HCAL NO. 1590 OF 2018)
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BETWEEN
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NAMAGEMBE ADELLA |
Applicant |
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TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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Before: Hon G Lam and Chow JJA in Court
Date of Written Submission: 4 August 2021
Date of Judgment: 8 November 2021
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. By summons dated 23 July 2021, the Applicant applied to this Court for an extension of time to appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 June 2020 refusing to grant leave to apply for judicial review.
2. Having considered the documents filed by the Applicant, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court (“RHC”), Cap 4A.
BACKGROUND
3. The Applicant is a national of Uganda. She came to Hong Kong as a visitor on 30 March 2011 and was permitted to stay for 30 days. She was arrested by the police on 15 April 2011 for soliciting for an immoral purpose, and was convicted of that offence and an additional offence of breach of condition of stay on 20 April 2011 and was sentenced to a total of two months’ imprisonment. On 27 May 2011, she lodged a torture claim. Details of the Applicant’s claim have been summarised by the Judge at §4 of the CALL-1 Form ([2020] HKCFI 1017). In essence, the Applicant’s claim was based on an alleged fear that if she returned to Uganda, she would be harmed or killed by her three brothers-in-law over a dispute in relation to the estate of her late husband.
4. By a Notice of Decision dated 29 June 2016 and a Notice of Further Decision dated 11 July 2017 (collectively “the Director’s Decisions”), the Director of Immigration rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4].
5. In due course, the Applicant appealed the Director’s Decisions to the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”). She appeared before the Board on 6 December 2017. On 6 August 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decisions (“the Board’s Decision”). The Board considered the Applicant’s evidence and came to the following conclusion:
“The Claimant is lacking in credibility and I am not persuaded even to the low standard required that the Claimant suffered any threats at the hands of her three brothers-in-law whilst in Uganda.”
6. The Applicant then filed a Form 86 applying for leave to apply for judicial review. She attended a hearing before the Judge on 3 September 2019, at which she was granted leave to amend the Form 86 to name the Board as the respondent and the Board’s Decision as the decision sought to be reviewed. On 4 June 2020, the Judge refused to grant the Applicant leave to apply for judicial review (see Form CALL-1 at §15). The Judge’s reasons for his decision are as follows:
“[11] In her affirmation in support of her application, she simply stated that she needed judicial review on her claim.
[12] The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. But she was distressed at the time of the interview with the immigration officer. She confirmed that her lawyer was present throughout the interview.
[13] The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 held:
‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….
14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’
[14] The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”
THE JUDGE’S EXTENSION DECISION
7. Under Order 53, Rule 3(4) of the RHC, the Applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. No notice of appeal was filed against the Judge’s order of 4 June 2020 within the 14-day period. On 27 August 2020, the Applicant filed a summons seeking extension of time to appeal.
8. The Judge considered the merits of the Applicant’s intended appeal and found that the Applicant had not been able to say in what respect the Board erred in its decision, and failed to show that she had any reasonable chance of success in her intended appeal ([2021] HKCFI 1929, §§9-10).
9. Accordingly, on 14 July 2021, the Judge refused to extend time for the Applicant to appeal and dismissed her summons of 27 August 2020.
THIS APPLICATION
10. By the present summons dated 23 July 2021, the Applicant applied to this Court for an extension of time to appeal against the Judge’s order dated 4 June 2020. In that summons, the Applicant stated that “I want to challenge the Decision”, and in her supporting affirmation also of 23 July 2021, the Applicant stated that “I was late to appeal in time because I received the Decision letter late”.
11. In her 10-page written submissions dated 4 August 2021, the Applicant repeated her fear if refouled back to Uganda. She stated that she was not represented officially and was not a legal professional. She also stated that she did not receive the letter sent from the court as she had already left her old address.
DISCUSSION
12. In considering whether to extend time for appeal, the court will take into account the length of the delay, the reasons for the delay, the merits of the intended appeal, and the degree of prejudice to the other party if an extension of time is granted.
13. The prospect of success of the intended appeal is important: the court will not extend time for a hopeless appeal to be pursued, see Re Adumekwe Rowland Ejike [2019] HKCA 702 at §19.
14. The court’s approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
15. The Applicant has not pointed to any specific errors in the Judge’s decision dated 4 June 2020, or raised any viable grounds of appeal against the Judge’s decision in her summons, supporting affirmation, or written submissions. It is for the Director and the Board, not the court, to undertake assessment of a non-refoulement claim. It is not a valid ground of appeal for the Applicant to merely repeat her claimed fear upon return to Uganda. Neither is it a valid ground of appeal that the Applicant had no legal representation before the Board.
16. The Applicant’s intended appeal has no merits, or reasonable prospect of success.
DISPOSITION
17. Accordingly, the Applicant’s application for extension of time to appeal is refused, and the Applicant’s summons of 23 July 2021 is dismissed.
| (Godfrey Lam) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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