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HCAL 539/2021
[2021] HKCFI 2143
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 539 of 2021
BETWEEN
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Nangobi Sophie |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong on 2/6/2017. She was permitted to stay as a visitor for a month. She overstayed until 5/7/2017 when she surrendered to the Immigration Department. She raised a non-refoulement claim [1]. In her claim in 2017 (‘2017 claim’), she asserted that she would be harmed or killed by some unknown persons due to the political affiliation of her father. Her father was a member of DP [2]. Her claim was rejected by the Director on 16/5/2018. She did not appeal.
2. On 19/9/2019, she was sentenced to imprisonment for 3 years.[3] She filed the non-refoulement claim in this case on 12/3/2020 (‘2020 claim’).
3. In the ‘2020 claim’, she feared that she might be harmed or killed by some unknown people if she returned to Uganda. Those people kidnapped her mother and sister and killed her father because of his political affiliation. They also abducted and raped her.
4. The ‘2020 claim’ was rejected by the Director on 7/7/2020. Her appeal to the TCAB was rejected on 30/3/2021. She filed the leave application on 16/4/2021. She is currently detained in CIC.
‘2017 claim’ [4]
5. The applicant was born on 27/7/1996. She was from Kampala Rubaga, Uganda. Her parents divorced around 2008. She lived with her mother. She was a Muslim. She had education for 8 years. She had not worked after leaving school. Her mother ran a shop in Rubaga. Her father was a member of DP. The ruling party was NRM.[5] She did not know any detail about his political activities. She and other family members did not join any party or groups in Uganda.
6. In August 2016, someone told her grandma that her father was poisoned and died. Her grandma informed her. She thought it was due to political matters. Her father lived at Iganga. She and her mother reported to the police at Iganga police station. The police agreed to investigate but did not. She did not complain further as she could not pay any bribe.
7. In September 2016, her mother and sister were kidnapped from home by some men. When she returned later, she found her home was ransacked. She stayed at home for about 2 days and left as it was unsafe. She had reported to the Rubaga Police Station about the kidnap but they did not follow up.
8. She hid at various places in Rubaga and lived on the street for about 6 months. There was no trouble. Her grandma suggested her to go to Thailand. Her grandma thought Thailand was safe. Her grandma arranged passport and visa for her. She left Uganda in March 2017
9. She encountered no problem leaving Uganda. She stayed in Thailand for about 2 months and Malaysia for a month. She finally came to Hong Kong in June 2017.
10. She had no confidence in the police. She could not relocate as those unknown people would be able to locate her.
‘2020 claim’ [6]
11. In her ‘2020 claim’, she gave additional information that in around 2008 she and her father were abducted by a group of unknown men from her father’s home in Iganga. They were taken to an unknown place. She was raped by them. Her father was tortured to death by them in the same incident. She was detained in a room for 7 days. Eventually she escaped.
12. She returned to Rubaga and lived with her mother until she left Uganda in March 2017. She reported to the police but she could not afford any bribe. She thought the police did not investigate. She was the eldest child. Those men could identify her. She thought her father’s connection with DP was the reason for the attack.
13. During the interview before the Director in June 2020, she explained that those men, who had raped her, told her that her father was killed. She was not sure when her father was killed. She did not disclose the rape earlier as she was safe in Hong Kong. She just forgot about it. She tried to look for her mother and sister on the Facebook but unsuccessful. She did not contact her grandma.
14. She did not know there were NGO helping victims of domestic violence in Uganda. She did not know any channel of complaint against corruption and abuse of power. She was unable to relocate.
Decision of the Director of Immigration [7]
15. The Director of Immigration concluded that there was low risk of harm from those unknown men who had raped her. There was no genuine and personal risk that she would be harmed. The following were the reasons:
(a) She did not mention the rape in 2008 in the ‘2017 claim’. It was a traumatic experience. She would not have forgotten. Her explanation was unconvincing and rejected.
(b) She was also inconsistent as to when her father died, in 2008 or 2016. Her explanation was not accepted.
(c) She knew very little about her father’s connection with DP. It was total hearsay that her father died of political connection. There was no other evidence which could support her assertion.
(d) There was no evidence that anyone from the ruling party was involved in the rape or the death of her father.
(e) She returned to her home in Rubaga after the rape and stayed there safely until the kidnap in 2016. There was no evidence as to the identities of the kidnappers. She stayed at home for about 2 days after the kidnap. She was safe.
(f) She subsequently spent 6 months living on the street in Rubaga. She was safe during that period. She was able to obtain her passport through her grandma. This was evident that there was no imminent harm to her.
(g) The Director accepted that there were serious human rights problems, corruption and abuse of power in Uganda. Rape was a common problem. The Uganda government was ineffective enforcing the law. On the other hand, the UHRC[8] was the institution to investigate human rights abuses. Civilians might seek compensation for abuses. The Human Rights Enforcement Act had greatly enhanced the power of the courts to tackle abuses and award compensation. The IG [9] was responsible for tackling corruption and abuse of power by public officials. People could complain through webmail. There were NGO [10] assisting victims of sexual violence. Services included providing shelters, counseling and legal advice. The Director concluded that there was reasonable State protection.
(h) Internal relocation was permissible under Ugandan Law. Uganda was 241 square kilometers in area with a population of 43 million. It would be very difficult for the unknown men to locate her. In fact, Najjanankumbi, Mbarara and Jinja would be possible options for relocation. Given her background, it was not unduly harsh for her to relocate.
16. The Director dismissed her claim based on all grounds.[11]
Decision of the Torture Claims Appeal Board
17. The Adjudicator fixed an oral hearing on 14/1/2021. The applicant had elected to give evidence. The adjudicator rejected her evidence based on the following findings:
(a) She did not mention the rape in the ‘2017 claim’. She only asserted so in the ‘2020 claim. She would not have forgotten this incident. Her explanation was not accepted. This inconsistency had gravely undermined her credibility.
(b) Initially, she told the Director her father was tortured to death while she was raped. Later during the interview in June 2020, she maintained that it was those people who raped her told her about the death of her father. She was not sure when her father died. She also asserted that her father did nothing while she was raped. Her explanation of the inconsistencies was unconvincing.
(c) The applicant alleged that her father died because of his political affiliation with DP. Given that the rape in 2008 was connected with this political affiliation, there was no reason that her family members kept her father’s political activities from her even in 2016. The reason of her father’s death was unconvincing.
(d) The applicant did not know anything about the kidnappers. She only speculated that the kidnap was connected with his father’s political affiliation. There was no corroborative evidence at all. In fact, after the kidnap, she stayed at home for 2 days and lived on the street for about 6 months in Rubaga. It was unreasonable for her to stay at the same town given the risk as claimed. All these events were illogical.
18. The adjudicator rejected the appeal.[12]
Judicial Review
19. The applicant filed the leave application for judicial review on 16/4/2021. In the affirmation in support of the application, she disagreed with the decisions of the TCAB and the Director. She maintained that her life was in danger.
20. She attended a hearing before this court on 22/6/2021. She maintained that her evidence given to the TCAB and the Director was true and accurate. She asserted that she could remember the names of those people who endangered her life.
21. I have considered the decision of the TCAB in this judicial review. The applicant’s evidence is inconsistent in material aspects. Her explanations are unconvincing. I agree with the reasons therein. There is no error of law and procedure. The decision is reasonable.
Conclusion
22. In my judgment, the intended judicial review is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 22nd day of July 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
On 22 July 2021
Nangobi Sophie
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22 July 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17133/20/8/4/U139
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 265/20
(formerly RBCZ 10236/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] By written significations dated 5/7/2017 and 4/9/2017.
[2] Democratic Party of Uganda.
[3] She was convicted of ‘wounding with intent’.
[4] Decision of the Director dated 7/7/2020, §13.
[5] National Resistance Movement.
[6] Decision of the Director dated 7/7/2020, §15.
[7] Decision of the Director dated 7/7/2020, §§22—26.
[8] Uganda Human Rights Commission.
[9] Inspectorate of Government.
[10] Action Aid, MIFUMI, WORI and Centre for Domestic Violence Prevention.
[11] Decision of the Director dated 7/7/2020, §§27—38.
[12] Decision of the TCAB dated 30/3/2021, §§58—74.
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