MUYINGO JACKLINE v. TORTURE CLAIMS APPEAL BOARD

CACV 189/2020

[2020] HKCA 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2020

(ON APPEAL FROM HCAL 1363 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 9 June 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 298. 

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 30 April 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 26 May 2016 (“the Director’s First Decision”) and 13 July 2017 (“the Director’s Second Decision”) respectively rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be collectively referred to as “the Director’s Decisions”.

4.  By a letter dated 15 June 2020, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

5.  The applicant is a national of Uganda.  She entered Hong Kong on 14 March 2013 as a visitor but overstayed. She was arrested by the police on 30 March 2013 and subsequently she lodged a torture claim on 1 April 2013.  After the commencement of unified screening mechanism, her torture claim was converted into the non-refoulement claim.

6.  The details of the applicant’s claim and her personal background were set out in paragraphs 5-6 of the Director’s First Decision, and paragraphs 9-21 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that she would be harmed or killed by her family members, members of the public, the police of Uganda as well as Ugandan Government if she returned because she is a lesbian. The applicant claimed that she used to have a relationship with a man in 1998 but the relationship ended in 2003 when he refused to marry her.  After that, she started to hate man and began her relationship with her girlfriend named “B”.  They did not make their relationship public because homosexual relationships are not accepted by members of the public and were forbidden by law after the “Anti-Gay Law” was passed in Uganda on 24 February 2014. However, a friend of her found out her relationship in around 2013.  She further claimed that she saw her friend approaching her house with police.  Out of fear, she fled to Hong Kong. 

B.  The Director’s Decisions and the Board’s Decision

8.  The Director assessed the BOR3 risk[1], the persecution risk[2], and the torture risk[3] in the Director’s First Decision while the Director’s Second Decision covered the BOR2 risk[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

9.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 25 January 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

10.  The Board first considered the country of origin information and found that the LGBT (lesbian, gay, bisexual and transgender) groups, although the situation might not amount to a persecution of homosexuality, faced societal harassment and intimidation (paragraphs 44-47 of the Board’s Decision).  It proceeded to consider whether the applicant was indeed in a same sex relationship with B.  The Board found that there was a discrepancy as to whether the applicant knew B in 2003 or 2012 despite the Board’s repeated inquiry and an inconsistency of such gravity undermined the credibility of the applicant (paragraphs 48-59 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal.

C.  The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 12 July 2018 seeking leave to apply for judicial review against the Board’s Decision.  She also filed an affirmation in support on the same date, in which she repeated the grounds she put forward in the Form 86.  The grounds of review were summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“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.”

12.  The Deputy Judge heard the applicant’s leave application on 6 November 2019. During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 13-19 of the Deputy Judge’s Decision:

“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.”

D.  Grounds for appeal

13.  The applicant filed the Notice of Appeal dated 15 June 2020 to appeal the Deputy Judge’s Decision.  The grounds of appeal are as follows:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

14.  Pursuant to Master Tsui’s directions dated 28 July 2020, the applicant filed her skeleton submissions on 21 September 2020.  In that, she only quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277[5] and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the principle of high standard of fairness without elaborating which ground of appeal she intended to support with these authorities.

15.  At this hearing, the applicant confirmed that she had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

16.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

17.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  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.

19.  Third, 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).

20.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

21.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

22.  It is apparent from the ground of appeal that the applicant complained the Board’s reliance on the alleged outdated source of news.  Such ground was advanced but rejected by the Deputy Judge: see [12(5)] and [13]-[18] of the Deputy Judge’s Decision. The applicant failed to identify any errors with sufficient particularities as to why the Deputy Judge was wrong in so holding.  On this basis alone, we will dismiss this appeal. 

23.  As to the arguments raised in her skeleton submissions, for the detailed reasons of the Deputy Judge as quoted above, we agree with the Deputy Judge that the Board had achieved high standard of fairness in determining the applicant’s claim.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

24.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.