NASIWA SARAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2009/2018

[2022] HKCFI 3310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2009 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court.

1.      Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.     The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application is late as the deadline is on 18 August 2018. Form 86 was filed on 21 September 2018. The delay is one month and 3 days.  I shall deal with this issue below.

2.  The application was set down to be heard on 24 August 2022.  However, the applicant was absent without prior notice to the Court and her application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Uganda.  She last entered Hong Kong on 18 April 2015 and was permitted to stay as a visitor until 18 May 2015.  She did not depart and had overstayed since 19 May 2015.  On 26 May 2015, she surrendered to the Immigration Department.  On 24 December 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boss Ken Kisakye as Ken suspected that she and her colleague Rahim Mohammed had stolen his money.

5.  According to the applicant, she worked with Rahim in Ken’s shop from 2010 to 2014.  In 2014, Ken gave Rahim a sum of USD 50,000 for him and the applicant to travel to China and do merchandizing of furniture and lady’s jewelry.  However, Rahim ran away with that money.  A week later, Ken visited her, accusing her of conspiring with Rahim in stealing his money.  After Ken’s confrontation, the applicant quit her job and started commuting between her home in Kampala and Mbarara in order to avoid Ken.  She left her children in Kampala with her housemaid named Rose. 

6.  On 24 December 2014, Ken sent some people to her house in Kampala and killed her children and Rose while she was in Mbarara.  She was informed with this tragedy the next morning by her neighbor.  As Ken was her only enemy, she believed that it was Ken who killed them.  The applicant went back home immediately after learning the news.  However, she did not report the murder to the police as Ken had already reported her to the police about the suspected theft.  Ken even announced through radio that he would chase the applicant. 

7.  The applicant also stated that the police failed to act in relation to the murder.  As advised by her duty lawyer, the applicant believed that the Ugandan police was corrupted because of the lack of sufficient pay and facilities.  Since Ken was rich and influential, she could not access police assistance.  Prior to the applicant’s departure for Hong Kong, she stayed in Mbarara for a few months without encountering any problems.  Eventually, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 13 January 2017 by the Director (the “Director’s Decision”).         

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from Ken was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[18]; and (iii) internal relocation was a viable alternative [19]. 

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 13 March 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [19].

11.  The Board considered the applicant’s written statement dated 24 December 2015 and her note to the Director dated 23 September 2016.  It observed that the applicant had in the written statement claimed that Rahim was her business partner.  Nevertheless, in her non-refoulement claim form dated 9 November 2016 (“NCF”), she claimed that Rahim was her colleague in Ken’s company.  It also noticed that she claimed that the USD 50,000 was a sum they borrowed from Ken whilst in her NCF she stated that it was a sum given by Ken for business purpose.  It further noted that the applicant claimed to be injured in the written statement whilst she said in the NCF that she feared that Ken would harm her [19].  The Board opined that these inconsistencies would undermine the applicant’s credibility since her explanation that these were due to language barrier was unsatisfactory and directly contradicted with her note to the Director about her capacity to speak, read and write English [20].

12.  Even taking what the applicant stated in the NCF as the truth, the Board found that (i) she was never inflicted with any bodily harm by Ken and (ii) she did not seek international protection promptly because she had stayed in China for three weeks [22].  Thus, the Board considered that she had not made out her non-refoulement claim. 

13.  In assessing the individual grounds, the Board considered the country of origin information.  While it accepted that there was information corroborating the applicant’s case, it considered that reforms were on-going in curbing the corruption and in improving the efficiency of the police force in Uganda.  It also noted that there was a professional standards unit in the Uganda police force in investigating the police misconducts; that there was legislation punishing anyone who was convicted of the act of torture; and that there was legislation punishing the police corruptions [26].  As a result, the Board concluded that state protection would be available to the applicant [27].

14.  Further, the Board found that the applicant was never tortured nor was Ken a government official.  Their dispute was private without state involvement [28]-[30].  Thus, the Board rejected her claim on the ground of Torture risk. Consequently, based on the same reasons, the Board rejected her claim on the remaining grounds. 

15.  In any event, the Board found that she was free from trouble for a few months in other areas before leaving Uganda, which indicated that Ken’s threats, if any, were localized [43].  Besides, Uganda is a big country with large population and it would be very difficult, if not impossible, for Ken to locate her [44]-[45]. 

16.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 21 September 2018 for leave to apply for judicial review of the Board’s Decision.

18.  In her affirmation in support of her application, the applicant has raised the grounds below.

(1)   The Board erred by failing to maintain the high standard of fairness by not holding an oral hearing allowing the applicant an opportunity to put forward her case.

(2)   The Board failed to take into consideration that the applicant was not legally represented in her appeal.

(3)   The Board did not inform the applicant that she could complain.

DISCUSSION

19.  As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application.  See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merits of the applicant’s case.

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

22.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

23.  The grounds as set out in paragraph 18 above do not assist her application. According to the Board’s Decision, the applicant had attended a hearing before the Board on 13 March 2018. The Board was aware that she was not legally represented.  There is no legal obligation under the Ordinance that the Board has to inform her that she can complain.

24.  There is no valid ground to challenge the Board’s Decision.

25.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

26.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

27.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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