TUSIIME RACHEAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 383/2018

[2024] HKCFI 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 383 OF 2018

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BETWEEN

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D E C I S I O N

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1.  On 6 July 2020 I refused to grant leave to the Applicant to apply for judicial review of a decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her non-refoulement claim based on risk of harm from her fiancée for refusing to marry him if refouled to her home country in Uganda upon finding that none of the grounds put forward by her reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2.  The Applicant now by a summons issued on 22 November 2023 seeks extension of time to appeal against that decision, as the 14-day period after the decision within which to file her appeal under Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A expired on 20 July 2020, and hence she was more than 3 years and 4 months late with her intended appeal.

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of more than 3 years 4 months must be considered as extremely substantial and inordinate, for which she explained in her Skeleton Submissions dated 10 January 2024 and was provided to the Court in the afternoon before the scheduled hearing of her summons that essentially she was then pregnant with her daughter in early 2020 but due to her on-and-off difficult relationship with the father of her daughter that she had no fixed abode staying in various shelters, that she was then suffering from depression and had become an alcoholic, that in April 2021 she was arrested by police over some creditor card offence and was detained at Tai Lam Correctional Institution for 3 months, that in 2022 she was again arrested by police for some undisclosed reason and released in December 2022 when she stopped abusing alcohol and was eventually able to seek legal assistance from the non-profit organization Justice Centre in mid-2023 for her intended appeal against the Court’s leave decision, but for which she also had to find money to pay for the court fees which she was only able to do so from some charitable organization in November 2023, and of course by then she was way out of time to file her notice of appeal.

5.  The court record shows that the decision was sent on the same day of 6 July 2020 to both the Applicant’s then reported residential address and as well as Castle Peak Bay Immigration Centre (“CIC”) where she was earlier being detained, and even accepting her claims of various difficulties that she had encountered at that time, I am unable to see how they could justify such serious delay of more than 3 years with her intended appeal.

6.  As for the prospect of her intended appeal, the Applicant in her Skeleton Submissions put forward 2 proposed grounds of appeal:

(1) That the Court erred in finding that there was no error or procedural unfairness in the Board’s determination of her credibility,

(2) That the Court failed to engage with the central issue for review that the Board’s approach to the evaluation of evidence was procedurally unfair.

7.  Before proceeding to consider these proposed grounds of appeal of the Applicant, it is important to first note that, as repeatedly emphasized by the Court of appeal, the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are all primarily within the province of the Director and the Board as primary decision-makers, and that 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: Re MD Shohel Sheak [2018] HKCA 714, and Re Limbu Birkhaman [2019] HKCA 50.

8.  In the present case, and as noted in my decision ([10] & [13]), it was on the basis of its evaluation of the evidence and materials before the Board, including oral evidence from the Applicant and her answers raised of her claim by the Adjudicator, that the Applicant was found to have failed to demonstrate that she would be at risk of harm as claimed from her former fiancée for refusing to marry him if refouled or that she would be at risk of harm under any of the applicable grounds, and that even if such risk were real that in the absence of any state or official involvement even on the factual basis of her own case that state and police protection would be available to the Applicant, while it was also the correct finding of the Director in his decision that internal relocation would reasonably be available to the Applicant upon her return to her home country to negate any such risk that might arise from her claim, which finding was also confirmed by the Board.

9.  For these reasons, it would not be necessary to examine those proposed grounds of the Applicant, as it is my view that even if they might indeed be reasonably arguable that the Board erred in assessing the credibility of her claim that they would not assist or advance her appeal or amount to any arguable basis for the Court of Appeal to interfere with the leave decision.

10.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal of the Applicant. Accordingly, I refuse her application for extension of time to appeal, and dismiss her summons.