RE MWAJUMA PATSON MWANYAKULE

CAMP 97/2020

[2021] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 585 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  This court (Hon Yuen and Au JJA) handed down judgment on 14 January 2021 ([2021] HKCA 50) dismissing the applicant’s application to extend time to appeal an order of DHCJ Bruno Chan (“the Judge”) given on 19 July 2019 refusing to give the applicant leave to apply for judicial review in respect of her non‑refoulement claim.

2.  On 21 October 2019, the applicant had filed a summons in the Court of First Instance for extension of time to appeal, which the Judge dismissed on 29 June 2020. 

3.  On 13 July 2020, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 14 January 2021.  The facts and issues in the intended appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

4.  On 27 January 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. 

5.  The Notice of Motion contains the following grounds of appeal:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

3. Actual life occur different situation then what is mentioned in COL Information. Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

6.  On 28 January 2021, the Registrar of Civil Appeals directed that the applicant shall lodge her written submissions on or before 11 February 2021, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

7.  The applicant lodged her written submissions on 11 February 2021 in which she quoted passages from ST v Director of Immigration^[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, she referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, she did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist her application to this court.

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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 intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

10.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  By reason of the above, the Notice of Motion filed on 27 January 2021 is dismissed.

CAMP 97/2020

[2021] HKCA 50

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 585 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  On 19 July 2019, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning her non-refoulement claims (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 2 August 2019.

2.  The applicant did not lodge an appeal in time.  Some 2 months after the expiry of the time limit, on 21 October 2019, the applicant filed a summons in the Court of First Instance (“CFI”) for extension of time to appeal.  That summons was dismissed by the Judge on 29 June 2020.  

3.  By summons filed in CAMP 97/2020 in the Court of Appeal on 13 July 2020, the applicant applied to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  The applicant filed her written submissions on 21 August 2020 pursuant to directions given by the Registrar of Civil Appeals.     

Background

5.  The brief background is as follows.  The applicant is a national of Tanzania.  Her allegations are summarized below.  She is a Christian.  After her parents died, she and her sister moved to her grandmother’s home in a village.  There were some Muslim villagers who wanted her re-convert to Islam but she refused.  She was hit on the legs on one occasion, but she could not report the matter because there were no police stationed in the village.  To avoid further attacks, she went to stay with her uncle and his wife.  Her sister did not go with her.  The uncle sent her to school and gave her money, but the uncle’s wife (“the aunt”) disliked her and mistreated her.  The aunt even assaulted her but when she complained to her uncle, he did not believe her.  The uncle also assaulted her a few times, and then made her stay by herself at a dumping site.  She reported this matter to the police but they did not do anything to assist her.  She sought assistance from her friend Vanessa who provided food to her and introduced work to her.  After the applicant was again assaulted by her uncle, she went to a second dumping site to live.  Vanessa gave her money and helped her obtain a passport.  The applicant then left Tanzania and arrived in Hong Kong on 19 May 2014 as a visitor.  She overstayed and then surrendered and made a non-refoulement claim.       

6.  After the Director rejected her claims, the applicant appealed/petitioned to the Torture Claims Appeal Board (“TCAB”), which held a hearing on 21 February 2018.  The TCAB gave its decision on 2 March 2018 (“the TCAB Decision”).  It found as a matter of fact that there were numerous inconsistencies and discrepancies in relation to her evidence [57] such as in respect of the time of various alleged incidents [49, 50, 51], what occurred during those incidents [52], and the identity of her assailants [53] and other persons [54], etc.  Her claims under the grounds of torture risk [70], BOR3 risk [71], BOR2 risk [72] and persecution risk [73] were rejected.

Application for leave to start judicial review

7.  On 9 April 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB Decision.  However, no grounds were advanced and she was absent at the hearing before the Judge.

The JR Decision

8.  As mentioned earlier, the Judge refused leave for reasons set out in [10] - [15] of the Form CALL-1 ([2019] HKCFI 1071) issued on 19 July 2019:

“10.  On 9 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 or in her supporting affirmation of the same date in which she merely exhibited copies of those decisions and other documents extracted from the hearing bundle for her appeal before the Board.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

12.  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 §§46 – 69 of its decision after having had the benefit of hearing her in evidence and in her answers to questions raised of her claim, and in the absence of any legal error or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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.

15.  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.”

Application for extension of time to appeal

9.  On 21 October 2019, the applicant applied to the CFI for an extension of time to lodge an appeal from the JR Decision.  The Judge refused leave on 29 June 2020.  Hence, her application to this court for an extension of time to appeal the JR Decision.

Legal Principles

10.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the absence of prejudice does not mean that an extension would be granted).

Discussion

11.  As for (1), the delay between the JR Decision and her summons to the CFI was more than 2 months.  Her delay is substantial.

12.  As for (2), the applicant told the Judge at the hearing that she was late because she had moved to another address.  However, she had not informed the court of any change of address.  Nor did she provide any evidence to support her explanation.  In her affirmation, she only alleged lack of knowledge about the time limit, and that the JR Decision was unfair to her as she did not have an opportunity to clarify her case.  And in the applicant’s affirmation filed in this court, she stated only “I would like to appeal out of time as I didn’t [have] the appropriate means nor I received the decision on time” (sic).  There was no satisfactory explanation for the delay. 

13.  However, the most important consideration is (3) the prospect of success of the intended appeal.  The applicant failed to provide any grounds of appeal to the Judge. Even though this had been pointed out by the Judge, she has still failed to provide any grounds for her intended appeal in her application to this court.  In the applicant’s written submissions filed in this court, she only set out general legal principles.        

14.  It is clear from the TCAB Decision that the Board had rejected her claims on the facts, by reason of various inconsistencies and discrepancies in her own case.  It is well-established that the application for leave to start judicial review is not a rehearing by the judge of the TCAB proceedings, and the function of this court is to consider any alleged errors on the part of the judge.      

15.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 13 July 2020.

16.  Since the present application is totally without merit, we further make an order under Order 59 r.2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.