BUKENYA RONALD v. TORTURE CLAIMS APPEAL BOARD

HCAL 1482/2019

[2023] HKCFI 2391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1482 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Uganda who last arrived in Hong Kong on 24 August 2009 as a visitor with permission to remain as such up to 23 September 2009 when he did not depart and instead overstayed, and was arrested by police on 8 October 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim to the Immigration Department on the basis that if he returned to Uganda he would be harmed or killed by the father of his deceased girlfriend who accused him of murdering her and/or by the police as a suspect of the said murder, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases.  He was subsequently released on recognizance pending the determination of his non-refoulement claim.

2.  The Applicant was born and raised in Nyendo Village, Masaka Town, Masaka District, Uganda where he met and dated his girlfriend since secondary school.

3.  One day in February 2009 while they were on their way home from the beach, his girlfriend was shot by an unknown man and was taken by other passers-by to the hospital while the Applicant was so shocked and scared by the shooting that he ran home by himself.

4.  On the following morning the Applicant was told by his neighbours that his girlfriend had died in the hospital, but her father who was a soldier in the Ugandan Army later came to the Applicant’s home and accused him of murdering his daughter, and threatened to kill the Applicant in revenge unless he could produce proof that he was innocent.      

5.  After the threats made against him, the Applicant fled from his home village to take shelter in a friend’s place in Kabowa-Nsambya Village in Kampala,  but when he later heard that his girlfriend’s father was looking for him everywhere, and had also accused him of the murder to the police who were also looking for him, the Applicant in August 2009 departed Uganda for China, and on 24 August 2009 he travelled to Hong Kong where he subsequently overstayed, and after his arrest by the police he raised his torture laim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 November 2016 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 24 February 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his girlfriend’s father and/or the local police upon his return to Uganda due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of his girlfriend’s father to seriously harm or kill him or of any pursuit or adverse interest of the Ugandan police or authorities in him given the fact that he was able to obtain his passport and leave the country without any problem, that in any event his problem with his girlfriend’s father was a private personal dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Uganda with a large population of 39 million people spread across a vast territory of more than 241,000 square kilometres that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other part of the country away from his home district in large cities such as Jinja where it would be difficult if not impossible for his girlfriend’s father to locate him.

8.  On 9 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 5 September 2018 before the Board during which he gave evidence and answered questions raised of his appeal by the Adjudicator for the Board.  On 21 March 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it did not accept his claim as credible or truthful at all such as that his girlfriend had been shot or killed by some unknown individual or that his girlfriend’s father was looking to kill him in revenge or that he was as a result also wanted by the police or that he would face any real risk of harm under any of the applicable grounds that his claim for non-refoulement protection failed on all the applicable grounds.         

10.  On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

(1)  That the Adjudicator had failed to reasonably and fairly consider the obvious and flagrant violation of his Torture (CAT) and BOR 3 rights upon his return to Uganda;

(2)  That the Adjudicator had failed to apply the law;

(3)  That the Board had failed to apply high standards of fairness in determining his appeal claim that he is likely to be subjected to CIDTP and CAT upon his return to Uganda;

(4)  That the Board had failed to consider that his name and photograph were published in Police Appeal on newspaper;

(5)  That the Board had failed to consider that the Applicant has been declared a wanted person in his home country;

(6)  That the Adjudicator had failed to consider all the evidence of Human Rights violations made available in the COI;

(7)  That the Board failed to recognize that high standard of fairness had been compromised in that state and authorities would not protect the Applicant upon his return to Uganda.

11.  These are however all just some broad and vague assertions of the Applicant containing a few key words and phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to consider his rights or to apply the law or to consider evidence of human rights violations or the relevant COI, or how was high standard of fairness compromised.  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 for his intended challenge.

12.  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 his 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: Re Lakhwinder 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.

13.  In the Applicant’s case, the Board correctly rejected the credibility of his claim for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 76 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board

14.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim of harm from his girlfriend’s father if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Uganda, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.  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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his 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