NALULE IRENE v. TORTURE CLAIMS APPEAL BOARD

HCAL 9/2020

[2025] HKCFI 3809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 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 5 October 2018 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Uganda who last arrived in Hong Kong on 4 September 2014 as a visitor with permission to remain as such up to 8 September 2016 when she did not depart and instead overstayed, and more than 7 months later on 16 April 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Uganda she would be harmed or killed by her creditor over her unpaid debts, and/or by the Ugandan authorities who were pursuing her husband for political reasons and herself for being a lesbian.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born in Mulago, Kampala, Uganda and raised in the Kiboga District, Uganda.  After leaving school she operated a trading business in Uganda.  The Applicant met her boyfriend named Joseph in 2006 and became pregnant, but they broke up before she gave birth to their son in February 2007 who was taken care of by the Applicant’s grandmother in Uganda. 

3.  In 2009, the Applicant moved out of her family home and relocated with her son to Najjanankumbi, Greater Kampala area, where she started developed lesbian relationship with other women over the years.   One night in September 2013, whilst the Applicant was at a lesbian bar, she was arrested and questioned but she was not harmed by anyone and was released with only a warning not to return to the bar again.   

4.  In 2011, the Applicant borrowed USD2,500 from a local money-lender and started her own trading business which required her to travel.  However, the same amount of money was stolen from her in September 2014 during her stay in Thailand.  Since her creditor could still contact her in Thailand, she travelled to and entered Hong Kong as a visitor and changed her number to avoid being contacted by him, but after she was informed by her family that her creditor was looking for her and threatened to kill her if she still failed to repay her debts.  In January 2016, the Applicant also discovered that Joseph was kidnapped and persecuted for political reason in Uganda which she was not aware of when they were still together.  Due to these various reasons the Applicant was afraid to return to Uganda and therefore she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) for herself and her son on 18 April 2016 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 7 September 2016 the Director of Immigration (“Director”) rejected the Applicant and her son’s claim on all the then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong bill of Rights Ordinance, Cap. 383 (“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 and her son’s claim and assessed the level of risk of harm from her creditor and/or by the Ugandan authorities who were pursuing her husband for political reasons and herself for being a lesbian upon her return to Uganda as low.  The reasons supporting the Director’s assessment are: the low intensity and frequency of past ill-treatment from them, that she has never suffered any mental or physical harm from anyone at all, that she has not concealed her lesbian identity even when she was in Uganda in 2009, that she has lost contact with Joseph since 2010 and she has never received any threats because of her relationship with Joseph, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event they were private monetary disputes between her and her creditor 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 37 million people spread across a vast territory of more than 241,038 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move together with her son to other areas of the country away from her home district in large cities such as Gulu where it would be difficult if not impossible for anyone to locate her.

7.  On 15 September 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision for herself and her son, and for which they attended an oral hearing on 15 June 2018 with their lawyer from DLS before the Board.  At the hearing the Applicant gave evidence and answered questions raised of their claim by the Adjudicator, with submissions made by their lawyer on their behalf.  On 5 October 2018 their appeal was dismissed by the Board which 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 the Applicant’s claim of fear of harm from her creditor.  The Board found that it was purely the Applicant’s own speculation that her son would be harmed or killed by her creditor, and that there was no evidence at all that her son was subject to any sort of harm or threats.  The Board rejected their claim of fear of harm from her creditor that caused them to leave their country to come to Hong Kong to seek protection, and that in any event it was a private monetary dispute between the Applicant and her creditor. State or police protection would be available to the Applicant upon her return to Uganda.  There are also reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located.       

9.  Meanwhile on 11 July 2017 the Director on his own initiative invited the Applicant and her son to submit any additional facts which they may consider relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).  In the absence of any response from them, the Director by a Notice of Further Decision (“Director’s Further Decision”) dated 29 August 2017 rejected the Applicants’ BOR 2 Claim upon finding that they had failed to establish any real risk of their absolute and non-derogable rights under HKBOR if they are to return to Uganda. They did not raise any appeal against the Director’s Further Decision.

10.  On 2 January 2020 the Applicant filed her Form 86 (for herself only) for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation. She just attached a copy of the Board’s decision without putting forth any proper ground for her intended challenge, nor was she able to do so at the scheduled hearing of her application. 

11.  By then the Applicant was also seriously out of time with her 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 shall 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.

12.  As the last day of the three-month period for her to file her Form 86 as regard the decision of the Board fell on 5 January 2019, the Applicant was 1 year late with her 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.

13.  In the Applicant’s case, a delay of 1 year must be considered as extremely substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor was she able to provide any explanation as to her such substantial delay at the scheduled hearing.  As the record shows that the Board’s decision was sent on the same day of 5 October 2018 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her serious delay.

14.  As for the merits of her intended application, as noted above, the Applicant has failed to put forward any proper ground for her intended challenge of either decisions, and in the absence of any error of law or procedural unfairness in her process before the Board or in either of its decisions being properly identified by the Applicant, I do not see any valid ground in her intended application. 

15.  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 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. 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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Uganda, there is simply no justification to afford her 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.  In the premises, as I am for the given reasons 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 her serious delay, I refuse to extend time and accordingly dismiss her 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