Re Mutyaba Robert

CACV 540/2019

[2020] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 540 OF 2019

(ON APPEAL FROM HCAL 1726/2018)

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J U D G M E N T

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

Introduction

1.By a Notice of Appeal dated and filed on 25 November 2019, the Applicant appealed against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 18 November 2019 refusing leave to apply for judicial review (“the Decision”).  The intended judicial review was against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 16 August 2018 and against the decision of the Director of Immigration (“the Director”) dated 19 April 2018, rejecting the Applicant’s non-refoulement claim.

2.By a letter of 25 November 2019, the Applicant consented to the appeal being heard by a 2-member Court.

3.An oral hearing of the appeal was originally scheduled to take place on 30 March 2020.  On 6 January 2020, the Applicant was directed to lodge skeleton submissions with this Court by 3 February 2020.  Subsequently, due to the outbreak of the COVID-19 virus, the Judiciary has generally adjourned court proceedings and closed court registries/offices since 29 January 2020. 

4.On 28 February 2020, in light of the Judiciary’s plan to end the general adjournment period on 22 March 2020 and to re-open the Appeals Registry on 9 March 2020, the Court directed that the deadline for the Applicant to file skeleton submissions be extended to 13 March 2020.  The order also stated that if the Applicant failed to lodge submission by the extended deadline, the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.  These directions were communicated to the Applicant by post on 28 February 2020.

5.Notwithstanding those directions, the Applicant did not lodge any written submissions by the stipulated deadline or at all.  In the circumstances, he is deemed to have waived his right to make further submissions and the Court would process this application on paper based on the available materials.

Background

6.The Applicant is a national of Uganda with Nigerian residency.  He entered Hong Kong on 23 October 2017 and was permitted to stay until 22 November 2017.  He overstayed and surrendered to the Immigration Department on 24 November 2017 and lodged his non-refoulement claim.

7.The Applicant claimed that he would be tortured or killed by his uncle due to a land dispute if he returned to Uganda or Nigeria.  The details of the Applicant’s claim have been summarized by the Judge at [6] to [8] of the Form CALL-1 ([2019] HKCFI 2811).

8.By a notice of decision dated 19 April 2018, the Director rejected the Applicant’s claim.  The Director’s decision covered the torture risk[1], the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].

9.The Applicant appealed to the Board.  After a hearing on 18 July 2018, attended by the Applicant, the Board rendered its decision refusing the appeal on 16 August 2018.  The Board’s decision covered all four grounds for non-refoulement protection.

The Judge’s Decision

10.The Applicant filed a Form 86 on 23 August 2018 to seek leave to apply for judicial review of the Director’s decision and the Board’s decision.

11.The Judge summarized the Applicant’s grounds for judicial review as attached to the Form 86 at [15] of the Form CALL-1 as follows:

(1)  The respective decisions of the Director and the Board are unreasonable and wrong;

(2)  The Director had not taken into consideration or given sufficient weight to the Applicant’s argument before reaching the decision;

(3)  Corruption and incompetency of the administration in Uganda is still very serious;

(4)  The Director had failed to attain high standard of fairness.

12.Upon the Applicant’s request, an oral hearing was originally fixed on 20 March 2019.  The Applicant was absent on that day and, by an order of the same date, his application was dismissed for want of prosecution.

13.By Summons dated 1 April 2019, the Applicant applied to set aside the order of 20 March 2019.  In the supporting affirmation, he said that he did not receive any correspondence from the court regarding the date of the previous hearing.

14.An oral hearing of the Summons was held on 30 May 2019, which the Applicant attended.  In order to save time, the Judge decided to take at face value the explanation in the Applicant’s affirmation, set aside the previous order and proceed to determine the application on the merits of the case.  The Judge then heard the Applicant’s application for leave for judicial review in open court on the same day.

15.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the reasons for his decision at [16] – [23] of the Form CALL-1.

The Appeal

16.On 25 November 2019, the Applicant filed a Notice of Appeal against the Judge’s Decision.  The only ground of appeal stated in the Notice was that the Applicant asked for a second consideration of his application “because the situation is still bad”.

17.As mentioned above, the Applicant did not file any written submission.  Nor did he provide any further particulars or evidence in support of the appeal.

Legal Principles

18.The general principles regarding an appeal in a non-refoulement case have been set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

19.In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

20.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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

Discussion

21.As explained above, an appeal is not the occasion for a “second consideration” of a non-refoulement claim and the general statement that “the situation is still bad”, with no particulars or supporting evidence, does not even begin to discharge the Applicant’s burden in this appeal.  The Applicant has simply failed to engage the Judge’s reasoning or to pinpoint any viable arguments to reverse the Judge’s decision.

22.In our judgment, the Judge’s decision was correct.  Insofar as the Director’s decision is concerned, we agree with the Judge’s decision at [16] and [17] of the Form CALL-1 that the Director’s decision was superseded by the Board’s decision and hence not amenable to judicial review.  The Judge was correct to dismiss the application for leave for judicial review against the Director’s decision.

23.The Board has rejected the Applicant’s case as “incapable of belief” due to the numerous and irreconcilable discrepancies in his evidence.  The Judge, having examined the Board’s assessment of the Applicant’s evidence, was satisfied that the Board was entitled to do so and found that hence the Applicant had no factual basis in support of his claim.

24.As the Judge rightly pointed out in [18] of the Form CALL-1, the Applicant has not produced any particulars or evidence in support of his complaint against the Board’s assessment.  The Applicant has not identified any reasonably arguable basis to challenge the Board’s finding.

25.In any event, the Board has found that there was no real risk of harm to the Applicant upon refoulement and that internal relocation was possible.  Even on the Applicant’s own case, this finding seems to us to be correct.  The land in question was in Uganda.  He left Uganda 17 years ago and moved to live in Nigeria.  There is no credible evidence of him facing threats from his uncle (not to mention substantial risk of harm from him) in Nigeria. 

26.In the circumstances, we agree with the Judge that the intended judicial review had no reasonable chance of success.  The Applicant therefore failed to meet the threshold for leave to be granted as laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.For these reasons, we dismiss the appeal.

The applicant acting in person