RE MTANGI EMILY MOSSES

CAMP 103/2021

[2021] HKCA 1725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 103 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 324 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 23 June 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 790), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 9 February 2018 (“the Board’s Decision”), as well as the decision of the Director of Immigration (“the Director”)  dated 31 May 2017 (“the Director’s Decision”).

2.  The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 7 July 2020.  On 14 September 2020, the applicant sought extension of time before the Deputy Judge to appeal the Deputy Judge’s Decision.  She was more than two months out of time.

3.  On 25 February 2021, the Deputy Judge refused to grant extension of time to the applicant to appeal (“the Extension of Time Decision”).

4.  By a summons dated 8 April 2021 (“the CA Summons”), the applicant renewed her application to appeal out of time before this Court.  Directions were given by the Registrar of Civil Appeals on 11 May 2021 concerning the conduct of the application.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Paragraph 6 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on paper. After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Tanzania.  She came to Hong Kong as a visitor on 11 November 2015 but overstayed since 9 February 2016.  She surrendered herself to the Immigration Department on 11 February 2016 and lodged a non-refoulement claim on 11 March 2016.

6.  The applicant’s personal background and her claim were summarized at paragraph 6 of the Director’s Decision and paragraphs 24 - 45 of the Board’s Decision.

7.  Briefly stated, the applicant said she was a lesbian, and claimed that she would be harmed or killed by Tanzanian government because of her sexual orientation as a lesbian if she was returned to Tanzania.  She was involved in a sexual relationship with a girl named Latifa in around 2013.  However, Latifa’s father found out about their relationship in 2014 and said that he would report her to the police.  Later, she was informed that her name “Emily” was put on the blacklist and, after she left home, a few government officials visited her mother’s house to investigate the names on the list.  Out of fear, she stayed in Hong Kong for protection.

The Director’s Decision and the Board’s Decision

8.  By way of the Director’s Decision, the Director assessed and dismissed the applicant’s non-refoulement claims based on the BOR3 risk[1], persecution risk[2], torture risk[3], and BOR2 risk[4].

9.  The applicant lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 13 November 2017, during which the applicant was legally represented and also assisted by an interpreter.  After hearing the applicant and the submissions by the respective legal representatives, and considering her evidence in the non-refoulement claim form, the Board found that, while accepting that the applicant was a lesbian, it was not satisfied that the situation of lesbian was as severe as that of gay men who, if lived openly, would be liable to persecution.  It further found that the applicant did not disclose her sexual orientation to anyone except her close friends and that she was able to live discreetly, and could still do so, in her home country (paragraphs 98 - 130 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

10.  On 1 March 2018, by way of a Form 86, the applicant sought leave to challenge the Board’s Decision and the Director’s Decision.  The applicant failed to provide any grounds of review in either her Form 86 or supporting affirmation.  Neither did she request an oral hearing.

11.  After considering the documents, the Deputy Judge refused to grant leave to her to apply for judicial review.  The Deputy Judge set out his reasons at [10] - [13] of the Deputy Judge’s Decision:

“10. 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 her 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.

11. In the Applicant’s case, and on the basis of her own case at the highest, the Board correctly applied the guidance laid down by the English Supreme Court in HJ and HT v Secretary of State for the Home Department [2010] UKSC 31 to find and conclude that she would in fact live discreetly to avoid persecution because that was how she would wish to live due to social pressure and so as not to distress her mother or embarrass her friends that she has no well-founded fear of persecution because for reasons that have nothing to do with any fear of persecution that she has chosen to adopt a way of life which means that she is not in fact liable to be persecuted because she is a lesbian upon her return to Tanzania. As such and in the absence of any legal error or procedural unfairness being shown by the Applicant in her process before the Board or in its decision, I do not find any arguable basis to challenge such finding and conclusion of the Board.

12. 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.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Application for extension of time

12.  On 14 September 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  By way of the Extension of Time Decision, the Deputy Judge dismissed the applicant’s application on the basis that she failed to provide any good reason for the delay and that her intended appeal had no prospect of success.  Thus, the Deputy Judge concluded that it would be futile to extend time.

Renewed application for extension of time to this Court

13.  On 8 April 2021, the applicant renewed the application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons and her supporting affirmation, the applicant merely stated that she did not receive any letter and asked for an extension of time.  In her written submissions of 21 June 2021, she simply repeated her personal background and her claim.  She failed to identify any errors in the Deputy Judge’s Decision.

Legal principles

14.  As mentioned, pursuant to Order 53, rule 3(4)  of the RHC, an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.  Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that the appeal has a reasonable prospect of success before extension of time will be considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.  In this respect, in assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the principles can be summarised as follows:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the RHC.

Discussion

17.  A delay of more than two months is significant in the context of a statutory time limit of 14 days.  The applicant failed to provide any cogent explanation for the delay.  Further, as mentioned at [13] above, the applicant simply failed to advance any grounds with particularities pointing out any errors in the Deputy Judge’s Decision.  There are no viable grounds of appeal, and thus no merits in the intended appeal.  It would be futile to extend time. We therefore dismiss the CA Summons.