BUKENYA RONALD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 115/2024, [2024] HKCA 822

On An Intended Appeal From [2023] HKCFI 2391 &

[2024] HKCFI 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 115 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 1482 OF 2019)

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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.  On 28 June 2024, the Applicant took out a summons to apply for leave to appeal out of time against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 25 January 2024 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order dated 21 September 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 February 2017.

3.  Having considered the documents before us, we are of the view that it is appropriate to determine this application on paper without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Uganda. He arrived in Hong Kong on 24 August 2009 as a visitor with permission to remain up to 23 September 2009. He did not depart after the expiry of his limit of stay and overstayed instead. On 8 October 2009, he was arrested by the police. After he was referred to the Immigration Department for investigation, he raised a torture claim[1] on 11 October 2009, which was later rejected by the Director on 27 November 2013. His appeal against the Director’s decision rejecting his torture claim was dismissed by the Board on 10 December 2013. In the meantime, on 3 December 2013, he lodged a non-refoulement claim, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, he would be harmed or killed by his late girlfriend’s father, who was a high-ranking soldier in the army of Uganda, and/or by the police in Uganda as a suspect of the said murder because he was being accused of murdering his girlfriend. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2023] HKCFI 2391).

5.  By a Notice of Decision dated 24 February 2017, the Director rejected the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 21 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it did not accept his claim as credible or truthful at all such as that his girlfriend had been shot or killed by some unknown individual or that his girlfriend’s father was looking to kill him in revenge or that he was as a result also wanted by the police or that he would face any real risk of harm under any of the applicable grounds that his claim for non-refoulement protection failed on all the applicable grounds.”

7.  On 31 May 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. His intended grounds of judicial review, as set out in a document entitled “Grounds for Leave to Appeal” exhibited to his affirmation filed on the same date, have been summarised by the Judge at §10 of the CALL-1 Form, as follows:

“(1) That the Adjudicator had failed to reasonably and fairly consider the obvious and flagrant violation of his Torture (CAT) and BOR 3 rights upon his return to Uganda;

(2) That the Adjudicator had failed to apply the law;

(3) That the Board had failed to apply high standards of fairness in determining his appeal claim that he is likely to be subjected to [torture or cruel, inhuman or degrading treatment or punishment] and CAT upon his return to Uganda;

(4) That the Board had failed to consider that his name and photograph were published in Police Appeal on newspaper;

(5) That the Board had failed to consider that the Applicant has been declared a wanted person in his home country;

(6) That the Adjudicator had failed to consider all the evidence of Human Rights violations made available in the [Country of Origin Information (‘COI’)];

(7) That the Board failed to recognize that high standard of fairness had been compromised in that state and authorities would not protect the Applicant upon his return to Uganda.”

THE JUDGE’S DECISION

8.  On 21 September 2023, the Judge gave a decision refusing to grant the Applicant leave to apply for judicial review for the following reasons:

“[11] These are however all just some broad and vague assertions of the Applicant containing a few key words and phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to consider his rights or to apply the law or to consider evidence of human rights violations or the relevant COI, or how was high standard of fairness compromised. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

[12] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[13] In the Applicant’s case, the Board correctly rejected the credibility of his claim for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 76 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[14] Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim of harm from his girlfriend’s father if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Uganda, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[15] 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 assessment of the Applicant’s claim.”

9.  On 25 January 2024, the Judge refused the Applicant’s application by summons dated 15 November 2023 for an extension of time to appeal against the Order ([2024] HKCFI 229). The Judge held that the Applicant’s delay of 1 month and 10 days was very substantial and inordinate, and he had provided no good or valid reason for the delay (his explanation was that he did not receive the Order in the mail, and only obtained it when he came to court requesting for the Order, but the court record showed that the Order was sent to his last reported address on 21 September 2023 without being returned through undelivered post). More importantly, the Judge took the view that as the Applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, his intended appeal did not have any prospect of success.

THIS APPLICATION

10.  By a summons taken out on 28 June 2024 in the Court of Appeal, the Applicant applied for leave to appeal out of time against the Judge’s order of 25 January 2024. In his supporting affirmation filed on the same date, he repeated his explanation that he did not receive the Order by post. He did not, however, set out any intended grounds of appeal in either the summons or his supporting affirmation.

11.  In his written submissions received by the court on 9 July 2024, he repeated his fear of returning to Uganda, and stated that he would not get any protection from the state and authorities if refouled. He stated that there was compelling evidence that was reasonable enough to advance his case for judicial review.

DISCUSSION

12.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, at §§3-8, we shall treat the present application as a renewed application for an extension of time to appeal against the Order.

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  In the present case, we agree with the Judge that the length of the Applicant’s delay is substantial, and he has given no good or valid explanation for his delay.

16.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

17.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the Board’s Decision is shown in the present case.

18.  The Applicant’s assertions in his written submissions are all general without particulars, and cannot constitute any valid grounds of appeal. It is clear that the Board dismissed the Applicant’s appeal essentially because of the Board’s adverse assessment of the plausibility and credibility of the Applicant’s case and evidence. This is a matter primarily within the province of the Board. The Applicant has failed to point to or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

19.  There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

20.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 28 June 2024 is dismissed.