RE MARIA MICHAEL MKWERA

CAMP 225/2021

[2021] HKCA 1899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 225 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 493 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):

1.  This is a renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 3 August 2020, refusing to grant the applicant extension of time to apply for leave to apply for judicial review and dismissing the applicant’s application for leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 1676). An earlier application for extension of time to appeal was refused by the Deputy Judge on 1 June 2021 (“the EOT Decision”)  ([2021] HKCFI 1463).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 15 June 2017 (“the Board’s Decision”)  and the decisions of the Director of Immigration (“the Director”)  dated 17 March 2016 and 5 April 2017, rejecting her claim for non-refoulement protection (collectively “the Director’s Decisions”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Tanzania.  She entered Hong Kong on 14 June 2014 with permission to remain as a visitor up to 12 September 2014.  She did not depart and overstayed until 12 January 2015 and surrendered to the Immigration Department.  She subsequently raised a non-refoulement claim by way of a written representation dated 8 September 2015 on the basis that if she returned to Tanzania, she would be harmed or killed by her uncle and/or her fiancé for running away from their arranged marriage.  Details of the applicant’s claim were summarised by the Deputy Judge at [2] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 17 March 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR3 risk[2], and persecution risk[3].  By a Notice of Further Decision dated 5 April 2017, the Director rejected the applicant’s claim based on BOR2 risk[4].

6.  The applicant appealed against the Director’s Decisions to the Board on 30 March 2016 and the Board heard her appeal on 20 January 2017 and 17 May 2017 where she gave evidence.  The Board found that her dispute with her uncle was private in nature.  Having assessed the evidence, the Board also considered that state protection would be available and the applicant failed to establish her claim on all applicable grounds.  Accordingly, the Board dismissed her appeal and confirmed the Director’s Decisions.

The Leave Decision

7.  On 27 March 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review against the Board’s Decision and the Director’s Decisions.  No ground for seeking relief was stated in her Form 86.  In her affirmation, she only stated she was not satisfied with the Board’s Decision and the Director’s Decisions and it was not safe for her to go back.  As she did not request for an oral hearing, the Deputy Judge considered her application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant extension of time and dismissed her application for leave to apply for judicial review for the following reasons:

“14. As the last day of the three-month period for her to file her Form 86 fell on 15 October 2017 after discounting August 2017 for summer vacation, the Applicant was therefore more than 5 months late with her application, and in considering whether to extend time, the court shall have regard for (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of more than 5 months must be regarded as very substantial and excessive, for which she did not provide any explanation, while the record shows that the Board’s decision was sent to her on the same day at her last reported address which was the same as the one stated in her current Form 86 and which has never been returned through undelivered mail. As such and in the circumstances I am not satisfied that she has any good or valid reason for her such serious delay, and as noted above, in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any merits in her intended application.

16. 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.

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

18. 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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Deputy Judge’s order to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 18 January 2021, the applicant filed a summons for extension of time to appeal against the Leave Decision (“EOT Summons”).  By then, she was over four months late with her intended appeal.

11.  The applicant appeared in person at the hearing of the EOT Summons before the Deputy Judge on 18 May 2021.  A Swahili interpreter was also present to provide language assistance.

12.  By the EOT Decision, the Deputy Judge refused to grant the applicant extension of time to appeal.  The Deputy Judge considered the applicant’s delay as very substantial[5], for which the applicant explained at the hearing that she received the Leave Decision late and did not know how to appeal and had to seek help but was out of time by then.  The Deputy Judge noted that the Leave Decision was sent on the same day to the applicant’s last reported address and was not returned through undelivered post and ignorance of the rules cannot be accepted as an excuse or reason for their non-compliance.  The Deputy Judge considered that the applicant had failed to provide any good reason for her substantial delay and in the absence of any error in the Leave Decision being clearly and properly identified by the applicant, there was no prospect of success in her intended appeal.  It would also be futile to extend time for a hopeless appeal.  Accordingly, the EOT Summons was dismissed.

The Present Application

13.  By a summons dated 23 June 2021, the applicant reapplied for extension of time to appeal against the Leave Decision to this Court.  In the said summons, she stated:

“THE HIGH COURT REJECTED MY APPLY TO EXTENTION OF TIME. I REQUEST TO THE COURT OF APPEAL TO EXTEND TIME, I CANNOT STAY IN HONG KONG IF I NOT MAKE ANY APPEAL” [sic]

14.  In her supporting affirmation of the same date, she stated:

“AFFIRMATION FOR EXTENSION OF TIME TO APPEAL AGAINST THE DECISION OF THE HIGH COURT. I DO NOT KNOW THE RESON OF CANCEL OF MY APPLICATION” [sic]

15.  In her written submissions lodged on 21 July 2021, the applicant again repeated the alleged factual basis of her non-refoulement claim and that her uncle took her father’s property after her parents had passed away and forced her into an arranged marriage so she left Tanzania and came to Hong Kong to apply for non-refoulement protection.  She further claimed that she did not receive the Leave Decision on time and her application for extension of time was refused by the High Court.  She asserted that her family’s people would kill her if she returned to Tanzania and she could not protect herself as a woman.

Discussion

16.  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 success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

17.  We consider that the applicant’s delay of four months is very substantial and the applicant has failed to provide any cogent explanation for the delay.  Although she said she did not get the Leave Decision on time, she failed to provide any specific particulars or details as to why that was the case or any evidence in support.

18.  As the applicant failed to provide any cogent explanation for her delay, the Court will only grant extension of time if her appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; Re MA [2019] HKCA 1020 at [18].

19.  In assessing the merit of an intended appeal, this Court will focus on the decision of the Deputy Judge and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

20.  Nowhere in the summons, supporting affirmation or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by the Deputy Judge.  She only repeated the alleged factual basis of her non-refoulement claim which are all general and bare assertions without any specific particulars or evidence in support.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

21.  Further, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: 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].

22.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the summons dated 23 June 2021 dismissed.