Case Detail

CACV 265 /2020

[2021] HKCA 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2020

(ON APPEAL FROM HCAL NO 336 OF 2018)

________________________

BETWEEN

	Atukunda Grace Flavia	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Cheung JA and Barma JA in Court

Date of Judgment:

18 May 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Chu and Barma JJA) handed down on 6 January 2021 ([2021] HKCA 8). The Court of Appeal rejected her appeal against the decision of Campbell-Moffat J on 30 June 2020 ([2020] HKCFI 1402) dismissing the application for leave to apply for judicial review concerning her non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction. As the applicant had applied for legal aid, these proceedings were stayed until 16 March 2021 pursuant to section 15 of the Legal Aid Ordinance (Cap 91). The Registrar of Civil Appeals therefore extended the deadline for the applicant to lodge written submissions to 30 March 2021. The applicant failed to lodge written submissions as directed. Having considered the papers, we think it is appropriate to determine this application on paper and will proceed to do so.

3. The applicant is a national of Uganda. She came to Hong Kong as a visitor on 14 March 2013. She subsequently overstayed and lodged a non-refoulement claim on 5 April 2013. Her claim was made on the basis that she would be harmed or killed by a lady called Nansubuga Doreen Kabalega (“Doreen”), Doreen’s husband, the applicant's ex-husband and the resident district commissioner if she is to be returned to Uganda.

4. Her non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 23 August 2016 and 26 July 2017 respectively. Her appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“the Board”) on 12 January 2018.

5. She filed a Form 86 on 5 May 2018 to seek leave to apply for judicial review against the decision of the Board. The application was refused by Campbell-Moffat J on 30 June 2020.

6. On 13 July 2020, the applicant filed a notice of appeal against the decision of the judge. The hearing of the appeal was vacated as the applicant failed to comply with the court’s directions to lodge her skeleton argument by the prescribed time. Her appeal was dismissed by the Court of Appeal on 6 January 2021. The applicant filed a Notice of Motion on 15 January 2021 for leave to appeal to the Court of Final Appeal.

The grounds of appeal

7. In her Notice of Motion, the applicant stated the following grounds of appeal:

(1) No medical evidence was sought in the evaluation of the applicant’s claim so her mental health was not adequately considered as part of the assessment. If a claimant’s mental condition is in dispute, the Board may require the claimant to undergo a medical examination as per section 37ZC(a) of the immigration Ordinance (Cap 115);
(2) As the applicant was unrepresented in her claim before the Board, she could not have reasonably been expected to undergo a medical examination prior to the Board hearing. Therefore, the Board’s conclusion in paragraph 66 of the decision that there is no medical evidence to indicate that her memory was affected by her mental or physical condition is unfair. The lack of medical evidence was considered a factor in the Board’s decision and the Board was well within the purview of the Immigration Ordinance to require a medical examination be conducted prior to making a ruling.

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. The applicant’s grounds were not raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10. In any event, the applicant has not provided any credible evidence to refute the Board’s finding that she will not face a real risk of harm from any person upon her return to Uganda. Moreover, she has not demonstrated that the Court of Appeal was wrong in dismissing her appeal and 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 15 January 2021.

(Susan Kwan)	(Peter Cheung)	(Carlye Chu)
Vice President	Justice of Appeal	Justice of Appeal

The Applicant (Appellant), acting in person

CACV 265 /2020

[2021] HKCA 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2020

(ON APPEAL FROM HCAL NO 336 OF 2018)

________________________

BETWEEN
	Atukunda Grace Flavia	Applicant
	and
	Torture Claims Appeal Board/Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Chu and Barma JJA in Court

Date of Judgment:

6 January 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s appeal against the decision of Campbell-Moffat J on 30 June 2020^{^[1]}. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. This appeal is dealt with on paper without an oral hearing because of the applicant’s failure to comply with the direction of the Registrar of Civil Appeals to lodge a skeleton argument within time as mentioned below.

2. The applicant is a national of Uganda. She is 41 years old. She came to Hong Kong on 14 March 2013 as a visitor. She overstayed and lodged a non-refoulement claim on 5 April 2013. She was arrested by the police on 2 May 2013 for overstaying. Her claim was made on the basis that she would be harmed or killed by a lady called Nansubuga Doreen Kabalega (“Doreen”), Doreen’s husband, the applicant's ex-husband and the resident district commissioner if she is to be returned to Uganda.

The Director’s decisions

3. By a Notice of Decision dated 23 August 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk^{^[2]}, BOR 3 risk^{^[3]} and persecution risk^{^[4]}.

4. The Director found that there are grave credibility issues on the applicant's case. Taking into account the extent of past physical harm as well as the frequency and intensity of the ill-treatment made by Doreen, the Director considered that the ill-treatment did not attain the requisite minimum level of severity. The Director found that there is no substantial ground to believe that there is any genuine and substantial risk of the applicant being subjected to ill-treatment upon her return to Uganda. The alleged problem has nothing to do with the Ugandan government or authorities. Moreover, the Director also considered that the availability of state protection and internal relocation option further lowers or negates the perceived risk of harm.

5. By a Notice of Further Decision dated 26 July 2017, the Director rejected the applicant’s claim in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk.^{^[5]}

The Board’s decision

6. The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 14 November 2017. Due to the significant discrepancies in the applicant's evidence, the Board found that she had fabricated her claims. The Board was not satisfied that the applicant will face a real risk of harm from any person upon her return to Uganda. Thus, the Board held that the applicant is not entitled to non‑refoulement protection on any of the applicable grounds under the unified screening mechanism and rejected the appeal on 12 January 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 5 May 2018 to seek leave to apply for judicial review against the decision of the Board. She did not put forward any grounds for her intended challenge.

The judge’s decision

8. The judge dealt with the leave application on the papers without an oral hearing as the applicant had not requested for an oral hearing in her application. The judge held that there is no error of law or procedure on the part of the adjudicator. There is also no evidence of procedural unfairness or failure to adhere to a high standard of fairness. Therefore, the judge held that the applicant's intended judicial review does not have a realistic prospect of success and dismissed the leave application on 30 June 2020.

The grounds of appeal

9. The applicant stated the following grounds of appeal in the notice of appeal:

(1) the decision is substantially unfair;
(2) the judge considered her application on the papers and did not provide her with an opportunity for an oral hearing.

Non-compliance with order for lodging a skeleton argument

10. Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11. The appeal was scheduled to be heard on 5 January 2021. The applicant failed to lodge a skeleton argument on or before the deadline of 8 December 2020. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By a letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

12. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

13. 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 issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

14. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

15. Pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), the judge may determine the application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application (ie Form 86). In the present case, the applicant did not request an oral hearing in her Form 86 or supporting affirmation. The judge’s decision to deal with the leave application on paper is consistent with the rules and is justified. Her complaint of lack of oral hearing is without merit.

16. The applicant did not provide any further elaboration, particulars or evidence in support of her contention regarding the alleged unfairness of the judge's decision. She failed to demonstrate 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 in the decision.

17. For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss this appeal.

(Susan Kwan)
Vice President

(Carlye Chu)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1402

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

[3] This refers to the 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 persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

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

ATUKUNDA GRACE FLAVIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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