Case Detail

CAMP 150/2020

[2021] HKCA 709

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)

________________________

BETWEEN

	Ally Ayubu Jumbe	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 Chu JA in Court

Date of Written Submission:	7 April 2021
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 out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 10 March 2021 ([2020] HKCA 251). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Campbell-Moffat J on 5 June 2020 ([2020] HKCFI 1080) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 23 March 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 7 April 2021. Having considered his submissions, it is considered appropriate to determine this application on paper.

3. The applicant is a national of Tanzania. 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.

4. He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for about two weeks. It was refused by the judge on 26 August 2020.

5. The applicant renewed his application to the Court of Appeal for extension of time to appeal on 3 September 2020. The application was dismissed by the Court Appeal on 10 March 2021 because the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6. In the Notice of Motion filed on 22 March 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just reliedon COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefersto ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approachunlikely fairly access the danger of my life and clearly not reasonable.”

7. His contentions in his written submissions may be summarized as follows:

(1) High standards of fairness are required in the determination of a torture claim;
(2) The Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility.

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. In the present application, the applicant’s grounds of appeal and submissions are just bare assertions without particulars and evidence in support. In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.

10. Moreover, the applicant 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 22 March 2021.

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

The Applicant, acting in person

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)

________________________

BETWEEN
	Ally Ayubu Jumbe	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Chu JA in Court

Date of Written Submission: 16 November 2020

Date of Judgment: 10 March 2021

________________________

J U D G M E N T

________________________

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.

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

The Applicant, acting in person

[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

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

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