MUYINGO JACKLINE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1363/2018

[2020] HKCFI 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1363 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Uganda who arrived in Hong Kong on 14 March 2013 with permission to remain as a visitor up to 28 March 2013 when she did not depart and instead overstayed and was arrested by police on 30 March 2013. After she was referred to the Immigration Department for investigation, she raised a non‑refoulement claim on the basis that if she returned to Uganda she would be harmed or killed by her family members and/or members of the public and/or the police and authorities as she claimed to be a lesbian but homosexuality is unlawful in Uganda. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Bulenga, Uganda. After leaving school she worked as a trader and in 1998 started cohabitation with her boyfriend with whom she gave birth to two children.

3.  In 2003 she proposed to her boyfriend that they should get married, but when her boyfriend rejected her proposal, their relationship deteriorated and eventually ended when the Applicant left Bulenga in the same year to move to Nateete by herself where she ran a shop to make her living after her boyfriend had placed their children in the care of his family.

4.  Since then the Applicant has grown to hate men, and subsequently started a lesbian relationship with a woman whom she met in the same year in Nateete.

5.  For the next 10 years they kept their relationship to themselves and hence no one knew about it until one evening in March 2013 when a friend came to her home which was unlocked and found them having sexual intercourse which shocked her friend who immediately left.

6.  On the following morning when the Applicant saw her friend returning with some policemen, and as homosexuality is unlawful in Uganda punishable with heavy imprisonments, the Applicant immediately left her home through the backdoor and fled to Kampala, and from there she departed for Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 26 May 2016 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm to her upon return to Uganda as low due to the absence of any past ill-treatment from anyone over her alleged homosexuality, that there is no reliable evidence that she was being pursued by police and that she was able to depart Uganda without any problem, and that reliable Country of Origin Information (COI”) show that there are reasonable state protection available to the Applicant and with an independent judiciary as well as various NGO available to provide supports and to defend human rights relating to sexual orientation and gender identity in Uganda that her claim for non-refoulement protection failed on all applicable grounds.

9.  By a Notice of Further Decision dated 13 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which was filed on 8 June 2016, and for which she attended an oral hearing on 25 January 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 30 April 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found fundamental inconsistencies and discrepancies in the Applicant’s evidence of such gravity as well as vague and lacking in details of the kind that it undermined the credibility of all of her claims, and despite giving her numerous opportunities to reflect on her evidence as to her alleged lesbian relationship with her girlfriend, it found her inability to provide any real information of her such relationship that it was not satisfied that she was a credible witness, and that her claims to have been in a same sex relationship in Uganda which was discovered and brought to the attention of the community and the police are wholly incredible, and that it was satisfied that she had failed to establish any basis for a finding that there are substantial grounds which support the conclusion that she will face a real risk of harm or ill-treatment as claimed if she returned to Uganda that it concluded that there was simply no justification to afford her with non-refoulement protection in Hong Kong under any of the applicable grounds.   

12.  On 12 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)     Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)     Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)     Procedurally unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense and the result of procedural errors or unfairness;

(4)     Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)     That the Board had relied on source of news not officially recognized or were hearsay or outdated which led to groundless speculations that it would be safe for the Applicant to return to her country; and

(6)     Procedural unfairness in that the hearing bundle was given to the Applicant only 6 days before her appeal hearing before the Board with the majority of the documents in English without translation thereby giving her insufficient time to prepare for her appeal and to find an interpreter to assist her in her appeal.  

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally manner or that its decision was unreasonable or irrational, or which source of news were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable.

14.  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 her 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: ReLakhwinder 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.

15.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

16.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17.  Essentially the Applicant’s claim was rejected by the Board on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 63 of its decision that the central issue regarding her claim to be a lesbian and was in a homosexual relationship was fundamentally inconsistent and wholly rejected by the Board with the benefit of hearing her in oral evidence and in answers to questions raised of her claim during her appeal hearing, 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 with sufficient particularity and elaboration, I do not find any reasonably arguable basis to challenge the finding of the Board.       

18.  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.

19.  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.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1