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HCAL 981/2018 and HCAL 2905/2019
[2021] HKCFI 876
HCAL 981/2018
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 981 OF 2018
BETWEEN
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Mansano Katleen Casmere Pastrana |
1st Applicant |
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Kigula Jacob Ssenyondo |
2nd Applicant |
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Kigula Skywinder Lucas Kasajja |
3rd 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 |
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2905 OF 2019
BETWEEN
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Kigula Richard |
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 C P Pang:
1. Leave to apply for Judicial Review by the 1st applicant in HCAL 981/2018 be refused.
2. Form 86 be amended by adding the 1st applicant’s two sons, Kigula Jacob Ssenyondo as the 2nd applicant and Kigula Skywinder Lucas Kasajja as the 3rd applicant, in HCAL 981/2018.
3. Leave to apply for Judicial Review by the 2nd and 3rd applicant in HCAL 981/2018 be granted.
4. Leave to apply for Judicial Review by the applicant in HCAL 2905/2019 be refused.
Observations for the applicants:
Introduction
1. HCAL 981/2018 and HCAL 2905/2019 will be considered together by the court. Both cases concern applications for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicants’ claim of non-refoulement protection.
2. In HCAL 981/2018, the 1st applicant is the mother of the 2nd and 3rd applicant (who are minors). The minors’ father is the applicant in HCAL 2905/2019.
HCAL 981/2018
3. The 1st applicant, born in 1986, is a national of the Philippines. She entered Hong Kong as a domestic worker. She did not depart after termination of her last contract on 18 October 2014, and thereafter remained in Hong Kong unlawfully. She surrendered herself to the Immigration Department and made her application for non-refoulement claim on 2 June 2016. The 2nd and 3rd applicants (both are boys) were born in Hong Kong on 27 March 2015 and 3 July 2016 respectively. The 1st applicant acted on behalf of them making non-refoulement claims to the Director.
4. The facts of the case and the basis for the applicants’ non-refoulement claims are summarized at para [8-12] of the decision of the Board dated 30 April 2018. Put simply, the claim was based on the fear that, if refouled, the applicants would be harmed or even killed by the 1st applicant’s father in the Philippines. She claimed that before coming to Hong Kong as a domestic helper, she had been engaged to a man not approved by her father in 2008. She tried to elope with her fiancé, but her father, who was a senior officer in the military, had to bring her home. He slapped her and threatened to shoot her fiancé. She then ended the relationship with her fiancé and came to Hong Kong as a domestic helper in 2012. Her mother later had cancer and her father asked the 1st applicant to borrow money from banks in Hong Kong to assist in the repayment of loans he had taken out for the medical expenses of her mother. She refused to do this and he threatened to kill her. He also threatened to kill her baby as he had discovered that she had been pregnant to a Ugandan man in Hong Kong outside of wedlock. She then stopped communicating with her parents. Her mother later passed away and the 1st applicant has had no news from the family since 2015. She states that she cannot return to the Philippines as her father is a senior officer in the military and would kill her and her children.
The Director’s decision
5. By a notice of decision dated 16 February 2017, the Director rejected the 1st, 2nd and 3rd applicant’s non-refoulement claim on all applicable grounds. Having taken into account all relevant circumstances, the Director assessed the level of future risk of harm as low. He considered that the fear of the 1st applicant was unlikely to materialise. The 1st applicant’s father had only made verbal threats against her as a result of her failure to assist him to repay the loans and the threats against her following her attempted elopement were not of sufficient seriousness or frequency to suggest a future likelihood of repetition. Furthermore, given the lapse of time, it was unlikely that she would have any difficulties from her father upon return to the Philippines. In any event, the Director also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
6. The 1st applicant attended a hearing before the Board on 23 January 2017.
7. By a decision dated 30 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
8. The Board gave reasons for rejecting the applicants’ claimat [22-44] of its decision.
9. In a nutshell, the Board’s reasons can be summarized as follows:
(1) The Board found the applicant’s oral evidence exceptionally vague, self-contradictory, garbled, incoherent, inconsistent with what had previously been put forward to the Director, and manifestly lacking in credibility. She was not a witness of truth and no credence whatsoever could be attached to her claim [28].
(2) In any case, it was her evidence that she and her Ugandan partner intended to marry and that the family unit would travel together either to the Philippines or to Uganda [31].
(3) Her evidence in relation to the situation in the Philippines was exceptionally garbled [32].
(4) Her claim (about the primary events she asserted happened in the Philippines) is completely fabricated and contains no element of the truth [40].
10. Accordingly, the Board dismissed all applicants’ appeal on all applicable grounds.
Application for leave to apply for judicial review
11. The 1st applicant filed a Form 86 on 31 May 2018 for leave to apply for judicial review of the decision of the Board. In the form, she only put down her own name as the applicant. However, in her supporting affidavit, she put down her name, the names of her two sons, as well as the name “Master KIGULA Richard” (Kigula Richard is the applicant in HCAL 2905/2019). By that time Kigula Richard’s appeal to the Board had not yet been decided by the Board (the hearing was conducted on 5 August 2019 and the decision was made on 18 September 2019). The court can assume that the 1st applicant was also applying for leave for judicial review on behalf of her two sons. However, she could not apply on behalf of Kigula Richard for judicial review against the Board’s decision which had not yet been made. For the reasons said, I amend the Form 86 to the effect that she is the 1st applicant and her 2 sons would be added as the 2nd and 3rd applicants.
12. By a letter dated 2 July 2020, the court invited the 1st applicant to submit information including any submissions that she would like to make and confirm whether an oral hearing is requested. The 1st applicant replied by a letter dated 6 July 2020 saying that she did not need an oral hearing, nor did she have “any new updates”. The application is therefore considered on the papers.
13. In her supporting affidavit, the 1st applicant complained that the Board’s decision was not fair as it was made “without the consideration of the father of the children” and “the whole situation and decision is bassed (sic) on me solely”.
Discussion
14. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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, country of origin information, 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.
15. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.
16. I will first deal with the 1st applicant’s application before considering the position of the 2nd and 3rd applicant who are minors.
17. In the present case, the Board in fact rejected the 1st applicant’s appeal/ petition on the ground that it disbelieved the 1st applicant and found her not a witness of truth and “no credence whatsoever can be attached to her claims” [28]. The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds in relation to the 1st applicant.
18. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
19. The complaints put forward in her supporting affidavit in essence relate to the lack of consideration of her sons’ father.
20. The Board at [30] of its decision stated that “the partner” did not attend the hearing before the Board and no information about the partner could be found on examining the records of the Board. The Board further noted that it was her evidence that she and her partner intended to marry and the family unit would travel together, either to the Philippines or to Uganda, if she were to be required to leave Hong Kong. The Board has plainly taken into account the relationship between the 1st applicant and her Ugandan partner. In any event, her claimed fear of harm to herself was based on the primary facts of ill-treatment of her father and his threat, which were rejected by the Board as incredible. There would be no factual basis to support her claim, whether or not her current partner was considered by the Board. I do not find any reasonably arguable basis to challenge the findings of the Board in relation to the 1st applicant. Her intended judicial review has no prospect of success. Accordingly, I refuse to grant leave to her to commence judicial review.
21. It is necessary for the court to separately consider the 2nd and 3rd applicant’s position as they are minors and have not been legally represented before the Board and in these proceedings as required under Order 80, rule 2 of the RHC.
22. The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971. I will not repeat everything that has been said in the case. Suffice it for present purpose to note firstly that non‑refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children. Ill‑treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.
23. Secondly, when dealing with an application by a non‑legally represented minor for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.
No separate reference to the 1st and 2nd applicant’s case
24. In the three applicants’ notices of appeal to the Board, the 1st applicant stated that “I can’t take them back to a place where I feel they are not protected”. In the decision of the Board, it appears to me that its sole reason for refusing the 2nd and 3rd applicant’s appeal was that it disbelieved the evidence of the 1st applicant. While the Board started at [1] saying that “references below to the appellant should be taken to include all appellants unless the context otherwise requires”, there was no specific reference to the 2nd and 3rd applicant’s case and their personal circumstances in its decision. Nor was there an apparent separate consideration of the minor interest or protection for them in the Philippines. There was also no consideration on the possible impact on the children if they are removed from Hong Kong where they were born and brought up. The children were not legally represented before the Board. Had they been represented by a lawyer, child-specific risk of harm might have been specifically considered by the Board. The Court is not suggesting that such risks actually exist, but that it should be considered whether or not they may arise in the circumstances of the case. It is reasonably arguable that the claims of the 2nd and 3rd applicant have not been properly considered by the Board as separate claims having regard to their own personal circumstances. On this ground, I would grant leave to the 2nd and 3rd applicant to apply for judicial review.
25. Following Fabio, I am of the view that the application by the 2nd and 3rd applicant as minor claimants should have proceeded in accordance with the regime under Order 80 rule 2 with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend).
HCAL 2905/2019
26. The applicant, born in 1982, is a national of Uganda. He arrived in Hong Kong on 25 April 2012 and was permitted to remain until 25 May 2012 as a visitor. He overstayed and remained in Hong Kong unlawfully. On 21 August 2012, he was arrested by the police for illegal remaining and referred to the Immigration Department for investigation. He was convicted of breach of condition of stay and sentenced to four weeks’ imprisonment suspended for three years. On 28 August 2012 when he was detained pending repatriation arrangement, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The torture claim was rejected by an immigration officer on 17 January 2013 and his application for late filing of the notice of appeal was refused on 25 March 2013. He lodged a second claim for protection with the Director in January and February 2013. His second claim being assessed by the Director against BOR 2 and BOR 3 risks and Persecution Risk (as the torture risk had been previously assessed and rejected) was refused on 18 September 2018. He appealed the Director’s decision to the Board.
27. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [27-46] of the decision of the Board dated 18 September 2019. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by some members of the military in Uganda due to his having knocked down two of their fellow members and participating in anti-government activities. He had received death threats from them.
28. The applicant obtained a Bachelor degree in Accountancy. He claimed that he was a committee member of the Makerere “Nkoba Zambogo” Student Organisation of Makerere University since 2004. He participated as a liaison officer since his graduation in 2008. He assisted in organizing the demonstration on 16 August 2011 against the central government of Uganda. Ten thousand people participated in the demonstration. The police dispersed them by using tear gas, police batons and bullets. The police identified him as a leader and wanted to catch him. They grabbed him but he managed to run away. When he was driving his car back home, as there were about 10 children running, he swung his car and it accidentally hit two military army men. They did not die but their legs were broken. He himself was also injured in the accident and his leg was broken. He lost consciousness and was already in hospital when he regained consciousness. He was discharged on 20 August 2011. In early January 2012, his landlord told him that military army men were looking for him. He went to police station for assistance but was told that they could not help him as the case involved military officers. In mid-January 2012, four armed males from the military came to his place and he was kidnapped to an empty house. Finally, he managed to persuade one of the military men to let him go by giving him 100,000 shillings he had in his pocket. He escaped the empty house on his own and managed to take shelter from a friend. On the next day, he moved to another place. During his stay in the new place, he received threatening phone calls about twice per week that he would be found and killed wherever he would go. In fear for his safety, he left his country for China by air on 12 February 2012 after passing through the immigration depot in Uganda. In around April 2012, he wanted to return to Mainland China from Hong Kong. He applied for a China visa but was informed that his visa application was rejected.
The Director’s decisions
29. By a notice of decision dated 17 January 2013, the Director refused the torture claim of the applicant. By a notice of decision dated 18 September 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds (other than the torture risk) for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of future risk of harm from the military army men upon his return as low. His fear that he would be harmed or killed due to his involvement in anti-government activities and having knocked down military members was only based on his own speculation which was not backed up by concrete evidence. Setting aside the credibility issue, and even assuming that he was being targeted by some military army men, the asserted ill-treatment did not attain a minimum level of severity such that non-refoulement protection would be warranted. Moreover, the Director also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm. The decision covered BOR 2 risk[5], BOR 3 risk[6], and persecution risk[7]. The applicant lodged an appeal/ petition to the Board against the Director’s decision dated 18 September 2018.
The Board’s decision
30. The applicant attended a hearing before the Board on 5 August 2019.
31. By a decision dated 18 September 2019, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds, except the torture risk which had been rejected in his initial application, and the applicant did not raise any new claims that were not considered in his earlier application.
32. The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [47-69] of its decision.
33. In a nutshell, the Board’s reasons can be summarized as follows:
(1) Based on the serious inconsistency and ambiguity in his evidence, the Board found the applicant not a witness of truth and that his claims regarding his association with Nkoba Zambogo and the problems he experienced in Uganda not credible. It did not accept that he was engaged in any activities, particularly of a political nature or he was assisting in organizing and participating in a demonstration on 16 August 2011, or that he was pursued by police as a key person, or the military or anyone else has been looking for him [61].
(2) The Board did not accept that the applicant would face harm from the government or its authorities, including the military or the police [64].
(3) The Board concluded that there is no real risk that the applicant would face any of the proscribed forms of harm should he return to Uganda [66].
34. Accordingly, the Board dismissed the applicant’s appeal.
Application for leave to apply for judicial review
35. The applicant filed a Form 86 on 3 October 2019 for leave to apply for judicial review of the decision of the Board. He named the decision being challenged as “For the rejected appeal for non-refoulement protection on the date 18th September 2018”. It appears unclear whether he is challenging the decision of the Director or the decision of the Board.
36. No request for oral hearing has been made. The application is therefore considered on the papers.
37. In the Form 86, the applicant did not set out any proper grounds for the relief sought. In his supporting affidavit, he complained that there was insufficient consideration by the Board. He also said “I feel I have illness concerning my brain” and “I may be having a brian (sic) damage due to the accident I faced before.” He asked the High Court to give him more time to put “his head or brain to a better state of mind” to be able to recall things.
Discussion
38. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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, country of origin information, 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.
39. It does not matter whether the applicant is challenging the decision of the Director dated 18 September 2018 or the decision of the Board dated 18 September 2019. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will also examine the decision of the Director, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
No arguable basis to challenge the Board
40. The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision. The Board analysed carefully and indeed in much details before it came to its conclusion that his claims were incredible. The conclusion was properly based on the major inconsistencies and implausibility of his evidence. I do not find any reasonably arguable basis to challenge the findings of the Board.
41. Indeed, the applicant delayed in lodging the claim for protection after he came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.
42. The complaints that the Board was unfair giving insufficient consideration to him, and that he had brain damage or illness are bare assertions without evidence in support. The complaints are not reasonably arguable.
43. Indeed, both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.
44. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.
45. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.
46. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
47. Accordingly, leave to apply for judicial review is refused.
Dated 8 April 2021
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(Chung Lai Fan, Christine) |
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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 Applicants:
If leave has been granted, the Applicants or the Applicants’ 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 Applicants 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 Applicants
on 8 April 2021
Mansano Katleen Casmere Pastrana
Kigula Jacob Ssenyondo
Kigula Skywinder Lucas Kasajja
Kigula Richard
Applicants’ 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 8 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6356/17/3/11/F340;
USM 6357/17/3/12/F341;
USM 6358/17/3/13/F342 and
USM 13603/18/9/364/U92
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3340/16 (Formerly RBCZ 12108/16); QA T/C 3341/16 (Formerly RBCZ 12109/16); QA T/C 3342/16 (Formerly RBCZ 13602/16); QA T/C 1072/12 (Formerly RBCZ 849/12) and QA T/C 2931/18 (Formerly RBCZ 2000133/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[6] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[7] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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