RE NAKAZIBWE LINDA

CAMP 438/2022, [2023] HKCA 1267

on appeal from [2020] HKCFI 2402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 438 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 741/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 23 September 2020 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against (i) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 19 April 2018 (“the Board’s Decision”), dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 27 November 2013, 1 September 2016 and 4 September 2017 rejecting the applicant’s non-refoulement claim (respectively “the Director’s 1^st, 2^nd and 3^rd Decisions”; collectively “the Director’s Decisions”); and (ii) the Director’s Decisions themselves.

Background

2.  The applicant is a national of Uganda. She entered Hong Kong as a visitor on 21 February 2011, but she had subsequently breached her conditions of stay and was convicted of various criminal offences.  On 27 March 2011, which was during a period when the applicant was serving a prison sentence for one of those offences, she lodged a torture claim, which was subsequently rejected by the Director’s 1^st Decision.  Thereafter, she lodged a non-refoulement claim under the Unified Screening Mechanism on 12 April 2016, which was assessed on all applicable grounds other than torture.

3.  The applicant’s claim was based on a fear of being harmed or killed by her paternal uncle due to a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By the Director’s 2^nd and 3^rd Decisions, the Director decided against the applicant’s claim.  The Director’s 2^nd and 3^rd Decisions covered the persecution risk[2], the BOR2 risk[3] and the BOR 3 risk[4].

5.  The applicant appealed to the Board.  After a hearing on 21 and 22 March 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board found that the applicant’s account was unconvincing and lacking in credibility, and that “most, if not all the core assertions to the non-refoulement claim have been fabricated or are wholly unreliable”.

The Judge’s decision

6.  The applicant filed a Form 86 on 24 April 2018 seeking to judicially review the Board’s Decision (as well as the Director’s 1^st and 3^rd Decisions), without setting out any grounds.

7.  In her supporting affirmation she merely exhibited a copy of the Board’s Decision and the bundles for the hearing before the Board.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [16] of the CALL-1 Form:

“11.  On 27 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of documents from her hearing bundle for her appeal before the board without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such I do not find any reasonably arguable basis for her intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13-90 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and 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 find any reasonably arguable basis to challenge the finding of the Board.  

14.  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 Uganda, 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.

15.  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.

16.  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.”

The present application for extension of time to appeal

9.  The applicant’s last known address at the time of the Judge’s decision was at Woosung Street, Kowloon (“the Kowloon Address”). Subsequently, the Immigration Department informed the court that the applicant’s updated address was at Third Street, Sai Ying Pun (“the SYP Address”).

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the both the Kowloon and SYP Addresses on 23 September 2020, neither of which were returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 23 September 2020.

12.  The applicant thereafter took out a summons in the Court of First Instance on 30 October 2020 seeking extension of time to appeal, in which her address was stated to be the SYP Address.  In her supporting affirmation filed on the same date, she deposed that:

“I was late to appeal because I received letter late from High Court.”

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 18 May 2021[5].

14.  By a summons filed on 24 October 2022, the applicant renewed her application for an extension of time to appeal before this court.  In her supporting affirmation, the applicant stated:

“I am late to appeal. Requesting for an Extension of time”.

15.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge written submissions on or before 7 November 2022.  She was therefore deemed to have abandoned her right to rely on written submissions.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s decision was sent to the last known addresses of the applicant and were not returned undelivered.  The inference to be drawn is that she has received those letters from the court, and she has had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

18.  Further, here is no explanation on the part of the applicant as to how and when she had come to learn of the Judge’s decision dated 23 September 2020.

19.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay.

20.  Further, the delay of over 15 months by the applicant in renewing her extension of time application before this court is substantial, and her application is liable to be dismissed on this basis alone. We have nonetheless proceeded to consider the merits of the intended appeal.

21.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

22.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

23.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

24.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 24 October 2022 is accordingly dismissed.