JEMBA SAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2139/2020

[2024] HKCFI 2372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2139 OF 2020

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 the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 March 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Uganda who arrived in Hong Kong on 13 April 2017 as a visitor with permission to remain as such up to 13 May 2017 when he did not depart and instead overstayed, and on 24 May 2017 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Uganda he would be harmed or killed by some fellow villagers in his home village who were jealous of his wealth and success. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Wattuba, Namirembe, Uganda. After leaving school with a Bachelor degree in education, the Applicant worked as a secondary school teacher in Wakiso District, got married and raised a family with 3 children in his home village.

3.  In addition to teaching the Applicant also operated a successful trading business, and as a result he became wealthier than most villagers in his home village, which however caused jealousy and bitterness amongst some of the villagers that they started to resent him and falsely accused him of being a witch doctor which brought bad luck to the village, and would behave hostile towards him, and had on 2 occasions even assaulted him causing him to suffer cuts and bruises on his body.

4.  In April 2017 while he was on his business trip to Hong Kong to purchase goods, the Applicant was informed by his wife in Uganda that those jealous villagers had come looking for him, and when they could not find him in the house they then burnt it down, and threatened to kill him when he returned to Uganda that his family had moved to another town, and so the Applicant became afraid to return to Uganda and therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 17 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those jealous villagers upon his return to Uganda as low due to the low intensity and frequency of past ill-treatment from, that there is no evidence of any real intention of any of them to seriously harm or kill him in the absence of any reliable evidence other than his own bare assertions, that in any event it was a private dispute between him and those villagers within his home village only 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 kilometers that it would not be unduly harsh for the Applicant as an able-bodied highly educated adult with working experience to move to other areas of the country away from his home district in large cities such as Kampala or Nansana where it would be difficult if not impossible for anyone to locate him.

7.  On 30 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 16 and 21 of January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 March 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from some jealous villagers in his home village that caused him to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of those villagers to seriously harm or kill him other than his own bare assertions, and that in any event it was a private dispute between him and his villagers only without any official involvement that state or police protection would be available to the Applicant upon his return to Uganda as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 27 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that the decision was not appropriate without providing any details or particulars or elaboration as to why or how it was so, nor did he do so in his subsequent letter dated 12 August 2024 in which he just repeated his claim as before and complained that the Board did not look at the situation of his personal risk in his home country or the human rights situations in Uganda but without providing any further details or particulars or elaboration as to how the Board was said to have failed to do so.

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 20 June 2020, the Applicant was therefore more than 4 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 4 months must be considered as substantial and inordinate, for which he explained at the hearing that he had been in prison for 2 years for the offence of theft as from 27 September 2021, but which he admitted that the decision was sent to him in March 2020 well before he was put in prison. In the circumstances I am unable to see any valid reason or justification for his such serious delay.

13.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge either in his application or at the hearing of his application. As such, and in the absence of any error of law or irrationality 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 merits in his intended application either.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 125 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.

16.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even 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 agreed and 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.

17.  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.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss 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