RE KIGULA RICHARD

CAMP 157/2022

[2022] HKCA 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 157 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2905/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of DHCJ CP Pang (“the Judge”) dated 8 April 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 18 September 2019 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 17 January 2013 (“the Director’s 1^st Decision”) and 18 September 2018 (“the Director’s 2^nd Decision”) respectively rejecting the applicant’s torture and non-refoulement claims.

Background

2.  The applicant is a national of Uganda. He entered Hong Kong on 25 April 2012 and was permitted to remain as a visitor.  He overstayed and was arrested by the police on 21 August 2012.  The applicant lodged a torture claim on 28 August 2012, and thereafter submitted a non-refoulement claim (on grounds other than the risk of torture) in January 2013.

3.  The applicant’s claim was based on a fear of being harmed or killed by men in the military.  The details of the applicant’s claim have been summarised by the Judge at [26] to [28] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s 1^st Decision, the Director decided against the applicant’s torture claim.  By the Director’s 2^nd Decision, the Director rejected the applicant’s non-refoulement claim.  As the applicant’s torture claim had already been decided against him, the Director’s 2^nd Decision covered only the persecution risk[2], the BOR 2 risk^[3] and the BOR 3 risk[4].

5.  The applicant appealed to the Board against the Director’s 2^nd Decision.  The Board by its Decision dismissed the applicant’s appeal in respect of his claim based on the BOR 2 risk, the BOR 3 risk and the persecution risk.  The Board found inconsistencies in the applicant’s evidence on the material events, which led it to conclude that there is no real risk that the applicant would face any of the proscribed forms of harm should he return to Uganda.

The Judge’s decision

6.  The applicant filed a Form 86 on 3 October 2019 seeking to judicially review the Board’s Decision.

7.  In his affidavit filed on 3 October 2019, the applicant exhibited a copy of the Board’s Decision, as well as a letter written by him which stated that he feels “[he has an] illness concerning [his] brain” and asked the court to give him time to recall the details of the material incidents which occurred in Uganda.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing to grant leave at [38] to [47] of the CALL‑1 Form:

“38.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  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 are errors of law, procedural unfairness or irrationality in the decision of the Board.

39.  It does not matter whether the applicant is challenging the decision of the Director dated 18 September 2018 or the decision of the Board dated 18 September 2019.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will also examine the decision of the Director, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

No arguable basis to challenge the Board

40.  The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision.  The Board analysed carefully and indeed in much details before it came to its conclusion that his claims were incredible.  The conclusion was properly based on the major inconsistencies and implausibility of his evidence. I do not find any reasonably arguable basis to challenge the findings of the Board.

41.  Indeed, the applicant delayed in lodging the claim for protection after he came to Hong Kong.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

42.  The complaints that the Board was unfair giving insufficient consideration to him, and that he had brain damage or illness are bare assertions without evidence in support.  The complaints are not reasonably arguable.

43.  Indeed, both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

44.  There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

45.  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, irrational findings, or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

46.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review. 

47.  Accordingly, leave to apply for judicial review is refused.”

The present application for extension of time to appeal

9.  The applicant’s address as stated in his Form 86 was at No 19 Hok Ling Street, To Kwa Wan (“the Hok Ling Street Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Hok Ling Street Address on 8 April 2021.  This letter was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 April 2021.

11.  The applicant took out a summons in the Court of First Instance on 11 June 2021 seeking extension of time to appeal, in which his address was also stated to be the Hok Ling Street Address.  In his supporting affidavit filed on the same date, he explained that due to the “mass killings” in his country, “out of pressure and devastation”, he failed to file his documents “to the right window or office in reference to the 14 days after the Order was passed on 8 April 2021”. 

12.  The applicant’s application to appeal out of time was dismissed by DHCJ Suffiad on 5 November 2021[5].

13.  By a summons filed on 16 May 2022, the applicant renewed his application for an extension of time to appeal before this court. In his supporting affidavit (in the letter exhibited therein), the applicant in gist deposed that (i) he would like to submit further evidence in support of his non-refoulement claim; (ii) his application for legal aid, which was refused, contributed to the delay in bringing his intended appeal; (iii) he did not receive the Judge’s decision in the post.

14.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions with the court. He is thus deemed to have abandoned his right to rely on written submissions.

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

Discussion

16.  As noted above, the Judge’s decision dated 8 April 2021 was sent to the last known address of the applicant (which was the Hok Ling Street Address) on the same day, and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal. Although the applicant said in the letter exhibited to his affirmation that he did not receive its decision as he had moved to another address in the same area, this does not assist him, as it was incumbent on him to apprise the court of any change of address.

17.  According to the memorandum issued by the Director of Legal Aid (which was exhibited in the applicant’s affidavit dated 16 May 2022), the applicant’s application for legal aid was refused on 27 January 2022.  His present application before this court was not taken out at least over 3 months afterwards.

18.  In the circumstances, we consider that the applicant has failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal.

19.  Moreover, the 14-day period for the applicant to bring his intended appeal expired on 22 April 2021, which meant that he was around 7 weeks out of time when he lodged his application for extension of time in the court below.  DHCJ Suffiad refused his application on 5 November 2021, which meant that he is over 6 months out of time in bringing the present renewed application before this court. The delay is substantial and the application should be dismissed on this basis alone.

20.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 16 May 2022 is accordingly dismissed.