ALLY AYUBU JUMBE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 150/2020

[2021] HKCA 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 150 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 971 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 10 March 2021 ([2020] HKCA 251). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Campbell-Moffat J on 5 June 2020 ([2020] HKCFI 1080) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 23 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 7 April 2021.  Having considered his submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Tanzania.  He entered Hong Kong as a visitor on 31 August 2014.  He subsequently overstayed and was arrested by the police on 7 March 2015.  He lodged a non-refoulement claim on 10 March 2015 on the basis that he would be harmed or killed by his brother-in-law and the Muslims in his home country upon return to Tanzania.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late for about two weeks.  It was refused by the judge on 26 August 2020. 

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 3 September 2020.  The application was dismissed by the Court Appeal on 10 March 2021 because the applicant failed to show any prospect of success in his intended appeal. 

Grounds of appeal 

6.  In the Notice of Motion filed on 22 March 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  His contentions in his written submissions may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim;

(2)  The Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  In the present application, the applicant’s grounds of appeal and submissions are just bare assertions without particulars and evidence in support.  In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.

10.  Moreover, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 22 March 2021.