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

CAMP 150/2020

[2021] HKCA 251

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.  On 5 June 2020, Campbell‑Moffat J refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 6 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 19 June 2020.  The application was heard and dismissed by the judge on 26 August 2020[2].

3.  On 3 September 2020, the applicant took out this renewed application in the Court of Appeal for leave to appeal out of time against the judge's decision of 5 June 2020.

4.  The applicant is a national of Tanzania.  He is 35 years old.  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.  He was convicted of an offence and sentenced to eight months’ imprisonment on 28 September 2015.  He was discharged from prison on 5 March 2016.

The Director’s decisions

5.  By a Notice of Decision dated  27 July 2016, the Director rejected the applicant’s claim on BOR 3 risk[3], torture risk[4] and persecution risk[5]. 

6.  By a Notice of Further Decision dated 4 August 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] after considering his written submissions. 

The Board’s decision

7.  The applicant appealed against the Director’s first decision to the Board.  The hearing of the appeal was conducted before the Board on 25 July 2017.  After the hearing, the Director’s Notice of Further Decision dated 4 August 2017 came to the Board’s attention.  The Board decided to deal with all the available grounds in both the Director’s decisions together.  And as there was no fresh evidence in relation to BOR 2 risk, the Board decided it was not necessary to hold a further hearing. 

8.  The Board considered that the applicant’s claims are not supported by any credible evidence.  The Board held that there should be no real risk to the applicant should he practise his faith as a Christian in Tanzania as reliable country of origin information shows that half of the population are Christians in Tanzania where freedom of religion is generally respected and there is nothing to show that the Uamsho group poses a real risk of danger to Christians on the mainland of Tanzania.  The Board further found that there is no evidence that the applicant’s brother-in-law had the authority of the government and there is no evidence that the applicant has been subjected to physical or mental suffering of the requisite severity.  The Board assessed that the applicant failed to establish his claims under all applicable grounds and dismissed the appeal on 25 August 2017.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 29 November 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He stated in the supporting affirmation that he cannot go back to his country because he could be killed by his uncle and the Muslim community.  He did not put forward any specific complaints in relation to the decisions of the Director and the Board.

The judge’s decision

10.  Campbell‑Moffat J dealt with the leave application on the papers as the applicant did not request for an oral hearing.  The judge noted that the leave application was late for 4 days and granted him an extension of time to seek leave to apply for judicial review.  The judge held that the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the applicant and dealt with.  As for the intended judicial review against the Board’s decision, the judge considered that there is no error of law or procedure in the Board’s determination.  There is also no evidence of procedural unfairness or a failure to adhere to a high standard of fairness throughout.  The judge concluded that the intended judicial review does not have any realistic prospect of success and dismissed the application on 5 June 2020.

Grounds of intended appeal

11.  The applicant stated his intended grounds of appeal in his written submissions which may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 5 June 2020.  The applicant took out a summons at the court below on 6 July 2020.  He was late by about 2 weeks. 

14.  The applicant explained that he did not receive the judgment within 14 days.  On 5 June 2020, the court had sent the judgment by post to the applicant’s address as recorded in the record of the Immigration Department as at 4 June 2020.  The mail was later returned to the court by the post office. The applicant only informed the court of his new address by letter on 9 June 2020.  It is unsatisfactory that the applicant did not inform the court of his new address for service in a timely manner.  Even if the court accepts his explanation for the delay, the applicant would still need to show that there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[7].

15.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  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 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.

17.  The applicant’s complaint against the Board of procedural unfairness was not raised in the leave application before the Court of First Instance.  It is not open to the applicant to put forward a new ground for the first time in the intended appeal, well outside the time limit for bringing judicial review proceedings.  In any event, the applicant did not provide any particulars, elaboration or evidence in support of such ground.  He also failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

18.  As the applicant does not have any prospect of success in the intended appeal, we decline to grant extension of time to appeal.  We dismiss his summons filed on 3 September 2020.

[1] [2020] HKCFI 1080

[2] [2020] HKCFI 2155

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] Re Gurung Min Bahadur [2018] HKCA 226 §10