NANTUBWE MONICA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2886/2019

[2025] HKCFI 2169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2886 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. She appeared before the Court on 2 April 2025.

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

The applicant

4.  The applicant, aged 45, is a national of Uganda. According to the records, the applicant last arrived in Hong Kong on 28 February 2012 but overstayed since 30 March 2012 and was arrested on 14 August 2012. In due course, she lodged her non-refoulement claim.

5.  The applicant’s claim is based on her fear of being harmed or killed by her father and his family as she failed to repay money to her father.

6.  According to the applicant, she had borrowed UD10,000 from her father to run her boutique business. She went to Thailand where she bought the goods and entrusted to a shipping company to deliver the goods to her shop. However, shortly afterwards, she found that the shipping company had closed down and she was unable to trace her money. She did not report to police. She called her father for more money, who threatened to kill her if she did not repay the money. Details of her claim are set out at paragraph 5 of the Notice of Decision dated 23 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the level of harm was assessed to be low and the threats were intended to repay the loan rather than seriously harming or killing the applicant [10-12]; state protection was available and the applicant would be afforded reasonable protection by the authorities [13-15]; and internal relocation alternatives were available and reasonable [16].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 26 August 2019, the Board conducted an oral hearing for her appeal, during which the Board remarked that the applicant did not add much to her case already set out on paper [6].

10.  Having considered the evidence, the Board had made the findings as followed:

“ 41. I do not believe the Appellant could have been swindled in Thailand at all.

42. I have found in effect that the Appellant could not have been able to borrow any money from his [sic] father, not to say in the sum of USD10,000. …

43. In the absence of a loan she alleged she was unable to repay her father, there should not be any risk to her life from her father. Any risk to her life in Uganda as alleged by the Appellant should not be genuine, not to say substantial.”

11.  It therefore dismissed her appeal and confirmed the Director’s Decision.

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

12.  The applicant filed the Form 86 on 2 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for her application.

13.  In the applicant’s affidavit in support of her application, the applicant exhibited the Board’s Decision and deposed that the Board disregarded her dangerous situation but no valid grounds were put forward.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board had not given its reasons for not believing her story and asked the Court to review the Board’s Decision.

16.  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.”

17.  It is, of course, within the province of the Board to assess the evidence and make its decisions on the facts of the claim. It remains for this Court to consider whether the Board’s decisions are Wednesbury reasonable. This turns on the reasons given by the Board for not believing her story. The Board did not believe she had been swindled in Thailand because:

“ 40. This swindle involved two unlikely matters.

(1) The garments purchased by the Appellant was cheated. However, they should be cheap goods available in the local market in plenty.

(2) A fake “shipping company” must be set up beforehand to cheat the Appellant who must be only a chancy customer. There must be plenty shipping companies doing honest business in Thailand because this was not a trade by which large profit could be made by cheating.”

18.  The first unlikely event has missed the point of why the applicant had gone to Thailand for the goods. She had not given evidence that the sole purpose of going to Thailand for the goods was for the cheap goods. There might be other factors, such as the quality, styles or fashions of the goods. The Board had not taken other factors into account.

19.  The second unlikely event has missed the point that, according to the applicant, she was taken to the shipping company in Thailand by a lady. Her story seems to be the lady had colluded with other people of the shipping company to cheat her.

20.  The reasons given by the Board for not believing the applicant’s father would have lent US$10,000 to her are that there is no love between them; that since their relationship was distant, the father would not know how she was fairing in her daily life; and that the father should not believe that the applicant’s business would earn money very quickly to repay him. [36] The Board therefore found that there was no basis for the father suddenly trusted the applicant for such a big sum of money.

21.  I do not find that the reasons given by the Board for not believing the applicant’s father would have lent her US$10,000 to run her business to be Wednesbury unreasonable.

22.  If the Board had reasons to reject the applicant’s evidence that she had borrowed the money from her father, then even if the Board’s reasons rejecting her evidence that she was swindled in Thailand, her claim will still fail because it has lost its basic factual foundation in support of it.

23.  This Court has also taken into consideration the fact that the applicant has been staying in Hong Kong for 13 years and her father is 68 years old by now (see para. 32 of the Board’s Decision), and she had lost contact with him in 2017 (see para. 28). Moreover, there is no evidence that her father still intends to kill her if she returns to Uganda.

24.  This Court is of the view that the applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.