NAKAZIBWE JOANITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Following:

1.  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 18 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 3 December 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 26 September 2018. It is noteworthy that the Applicant had previously lodged a torture claim which was dismissed in 2013 (appeal also dismissed in 2013).  The TCAB Decision was therefore not concerned with torture risk.

2.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and she attended the same. When asked if she had anything to add she confirmed that she had not.

Background

4.  The Applicant is a national of Uganda.  She seeks non-refoulement protection on the basis that she would be harmed or killed by her 2 brothers-in-law who were part of the Ugandan military.  The Applicant had a dispute with them on the succession of her late husband’s assets.  There were incidents of assaults and threats. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86 nor in her affirmation in support.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [8-19] and found that on the basis of the same, applying also the correct legal principles in respect of all the remaining applicable grounds (i.e. excluding torture risk) [20-26] and properly considering Country of Origin information [49, 55], the Applicant’s allegations were insufficient to make out any of the applicable grounds [27-52, 58-65].  In particular, the TCAB found key parts of the Applicant’s evidence to be incredible [42, 45], and some of the documents submitted by the Applicant were not genuine [32, 37]. There were conclusions that the TCAB was fully entitled to come to.

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [53-57, 63, 66-69, 70].

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed.

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