NALUBEGA SARAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1631/2019

[2022] HKCFI 2941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1631 of 2019

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 1st Applicant and the Solicitor for the Official Solicitor as the next friend of the 2nd Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 18 March 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 February 2017 (the “Notice”).

2.  The 1^st Applicant is a Ugandan national, now aged 40.   She entered Hong Kong on 31 August 2011 as a visitor and was permitted to remain until 30 September 2011.  She overstayed. She was arrested on 22 May 2014 and raised a non-refoulement claim.  She gave birth to her son, the 2^nd Applicant, on 28 April 2016.  On 19 August 2016, she raised a non-refoulement claim on behalf of the 2^nd Applicant.

3.  In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 16 February 2017, the Director rejected their claims under all four applicable grounds.  They appealed against the decision of the Director in the Notice.  Their appeal was dismissed by the Board’s Decision dated 18 March 2019.  On 14 June 2019, the 1^st Applicant applied for leave to apply for judicial review of the Board’s Decision.  She was directed to seek legal aid or private representation for the 2^nd Applicant.  They applied for legal aid, but their applications and appeals were dismissed.

4.  The Official Solicitor received a request from the 1^st Applicant to act as next friend of the 2^nd Applicant.  The Official Solicitor filed submissions on 26 January 2022.  While he is of the opinion that there should not be a general rule for the Official Solicitor to act as the next friend of all children claimants, in the circumstances of this case, particularly the omission by the 1^st Applicant in presenting the 2^nd Applicant’s claim based on discrimination and statelessness, he was prepared to act if so directed by the Court.  On 8 August 2022, the Court directed that the Official Solicitor be appointed as next friend of the 2^nd Applicant and that the 2^nd Applicant be joined to these proceedings.

The Applicants’ case

5.  The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1^st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer.

6.  The 1^st Applicant was born in Kayunga District, Uganda, now aged 40.  She is widowed.  Apart from the 2^nd Applicant, she has another daughter with her deceased husband.  Her elder daughter was eleven years old when the 1^st Applicant left for Hong Kong.  She is living in Uganda.  She was attending university at the time of the appeal before the Board and has probably finished her university education by now.

7.  The 1^st Applicant’s father passed away when she was one-year-old.  She was raised by her paternal aunt and had never seen her mother.  She received seven years of education.  She was a hairdresser.

8.  Her grandfather had a piece of agricultural land (the “Land”).  Her father and three uncles (the “Uncles”) inherited the Land which was divided into four portions.  She and her aunt moved out of the Land after her father’s death in 1983.  They returned in 1985 and lived in a cabin built by her aunt on the portion of the Land inherited by the 1^st Applicant.  The 1^st Applicant moved to Kampala in 2001 to commence a career in hairdressing.  She worked in Dubai between November 2008 and July 2009.

9.  The 1^st Applicant returned to Uganda in July 2009 and started to build a house on her portion of the Land.  One night three months later, her Uncles went to the cabin. They demanded her aunt to hand over the will of the 1^st Applicant’s father to them.  Her aunt shouted to the 1^st Applicant that her the Uncles were coming for her.  The 1^st Applicant heard chopping sounds by machetes and smelled blood.  She also heard her aunt screaming in pain and shouting that the Uncles were killing her because of the will.  The Applicant fled and hid herself among the bushes.  The next morning, she met some villagers who told her that her aunt had been found dead inside the cabin.  She went to her then partner’s place in Kampala.  She did not make any report to the police about the murder of her aunt because her Uncles were influential in the village and she was just a lone woman who had no resources to face them in court.

10.  Since then between 2009 and 2010, the 1^st Applicant received threatening calls from her Uncles about two to three times per day.  They demanded her to return and produce the will for verification.  The 1^st Applicant refused.  She reported the calls to the police but the police took no action.  She believed she was being followed by spies sent by her Uncles.  She moved from one rented place to another three or four times while she was in Kampala to avoid being found.

11.  One night in July 2011 the 1^st Applicant was approached by four persons including Joyce who was having an affair with her then partner.  Joyce shouted fiercely at her saying that they had caught her.  The 1^st Applicant suspected that Joyce and her men were sent by the Uncles to kill her.  She escaped and reported the incident to the police.  Joyce was interrogated but did not reveal any material information.  The 1^st Applicant did not press charges because Joyce had just given birth.

12.  Following that incident, the 1^st Applicant received anonymous threatening telephone calls.  She decided to leave Uganda.  She terminated her relationship with her then partner and came to Hong Kong.  While in Hong Kong, she started a relationship with a Caucasian and gave birth to the 2^nd Applicant.  She did not want to reveal the details of the 2^nd Applicant’s father, other than that he was not a Hong Kong resident and he had not married her.  She did not register the birth of the 2^nd Applicant with the Ugandan authorities because she did not want him to be discriminated against on the ground that he was born out of wedlock to a father who did not want to have anything to do with him.  She was also concerned that the Ugandan authorities would be alerted to their status as asylum seekers.

13.  The Applicant did not believe the Ugandan police would help her because they were corrupt.  She did not believe internal relocation viable as she could not support herself or seek help from her friends in other parts of the country.  She also feared that the Uncles would be able to locate her.

14.  In gist, the Applicants’ claim is founded on their fear of harm and death at the hands of the 1^st Applicant’s Uncles who desired to take over ownership of her portion of the Land inherited from her father.  In addition, the 2^nd Applicant has a principal substantiated claim for protection based on his statelessness; and by reason of the principle of family unity, the 1^st Applicant is entitled to protection based on her relationship to the 2^nd Applicant.

Jurisdictional issue - The Applicants’ grounds of claim outside the USM

15.  The Applicants were legally represented before the Board.  They submitted that the Board had jurisdiction to consider a far wider range of grounds for non-refoulement protection based on the Immigration Ordinance, Cap 115, the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”) and other international conventions than the four applicable grounds under the USM.  They relied on common law, customary international law and seven international conventions, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), the Convention Relating to the Status of Refugees 1951 (“Refugees Convention”)[5], the International Convention on Civil and Political Rights (“ICCPR”), the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention of the Reduction of Statelessness (respectively, “1954 Convention” and “1961 Convention”).  However, save for their claims in respect of the HKBORO, the ICCPR, the 1954 Convention and 1961 Convention, they abandoned the other grounds.  In essence, they contend that in addition to their claim based on the four applicable grounds under the USM, they have independent or standalone grounds of non-refoulement protection based on (1) their family rights under Articles 14, 19(1) and 20(1) of the HKBORO; (2) the ICCPR; and (3) the 1954 Convention and 1961 Convention by reason of the 2^nd Applicant’s statelessness.

16.  In essence, the Board took the view that rights under the conventions are not justiciable in the local courts without having first been incorporated into local legislations.  Having regard to the evolution of non-refoulement protection legislation, the Board held that before December 2012 (ie introduction of the USM), claims were assessed under article 3 of the CAT, but from that date on the relevant source of jurisdiction can be found in the Immigration Ordinance itself[6].  The Persecution Risk ground under the USM effectively covered claims under the Refugees Convention.  The Court of Final Appeal also gave effect to this jurisdiction in C & Ors v The Director of Immigration & Anor[7]. Hence, claims under these two categories should not be considered separately under the CAT or the Refugees Convention.  

17.  While acknowledging that Articles 14, 19(1) and 20(1) of the HKBORO did provide protection in relation to what can loosely be considered as “family rights”, the Board held that those articles are concerned with protection of privacy, family, home, correspondence, honour and reputation, rights in respect of marriage and family, and rights of children, which have no relevance to their claim for non-refoulement protection. However, to the extent that such “family rights” exist, the Board held that they have been excluded by section 11 of the HKBORO as the Ordinance does not afford protection to claimants, like the Applicants, who have no right to enter and remain in Hong Kong.  The Board quoted Comilang & Anors v Director of Immigration[8] (“Comilang No. 2”) and Pagtama v Director of Immigration[9], in which similar arguments were dismissed by the court, in support of its decision.  In Comilang No. 2, the Court of Appeal confirmed that section 11 of the HKBORO, prevents person who do not have right to enter and remain in Hong Kong from relying on those rights, including family rights given under the HKBORO.  While there was no argument that the 2^nd Applicant had any right of residence in Hong Kong arising as a result of his birth in the territory, the Board went further and held, applying Hai Ho Tak v Attorney General[10] that even if such right exists, the family rights under Articles 14, 19(1) and 20 of the HKBORO are similarly not engaged because the 2^nd Applicant is a local family member of a foreign person who has no right to enter or remain in Hong Kong.

18.  As for the claim to protection under the ICCPR, the Board accepted that the convention has been domesticated into the laws of Hong Kong under the HKBORO.  As was held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security and Another[11], rights are conferred and enforceable under the domestic legislation and not under the ICCPR. There are no standalone rights outside those contained in the HKBORO as alleged by the Applicants.  Besides, the Applicants have not even identified any provisions of the ICCPR on which they sought to rely, nor have they established that any standalone rights exist by reference to the ICCPR separately of those contained in the HKBORO or other Hong Kong laws.

19.  As for the claim to protection based on the 2^nd Applicant’s statelessness, the Board accepted that the 1954 Convention was applicable to Hong Kong as notified by the People’s Republic of China but the obligations under the convention have not been incorporated into the laws of Hong Kong.  There is no dispute that the 1961 Convention, though ratified and applied to Hong Kong by the United Kingdom prior to 1 July 1997, does not apply to Hong Kong on or after that date.  The Board also accepted that to the extent that the 2^nd Applicant’s nationality might affect his claim for non-refoulement protection, factual determination of his nationality and statelessness is relevant and warranted; but disagreed with the Applicants’ contention that a person’s status as a stateless person creates a further independent ground of non-refoulement protection, quoting Li Jin Fei[12] and Hashimi Habib Halim[13].  In Li Jin Fei, the Court of Appeal held that the issue of statelessness as defined by the convention is not justiciable in the local Hong Kong courts and the applicant’s stateless grounds could not possibly have been grounds for any relief to be given by a judge on judicial review as the municipal courts of Hong Kong do not exist for the enforcement of international obligations, be they under any convention or customary international law.  In Hashimi Habib Halim, Au J, as Au JA then was, held that the applicant did not have any standalone enforceable legal rights to claim against the Director in relation to statelessness under the 1954 Convention and the court could not grant the relief sought.

20.  In summary, the Board’s conclusion on the jurisdictional issue is that the Applicants have no other standalone grounds outside the USM; but to the extent that the 2^nd Applicant is not considered a national of any country, and therefore stateless, it would be relevant to a consideration of his non-refoulement claims under the USM in respect of which the Board has jurisdiction.

The factual issues before the Board

21.  The Board identified four critical issues: (1) whether the 1^st Applicant was ever gifted a portion of the Land in her late father’s will over which her Uncles desired to take ownership; (2) whether the Uncles or anyone else killed her aunt or have otherwise harassed the 1^st Applicant in the past; (3) whether the 2^nd Applicant is stateless; and (4) whether he might be subjected to discrimination in Uganda on the basis of his statelessness or birth in Hong Kong to a Caucasian father.  It should be noted that by reason of the Board’s finding on jurisdictional issue, it rejected the Applicants’ argument that if either of them is successful in claiming non-refoulement protection, the other should be granted “derivative” protection on the basis of “family rights”.

Finding of the Board on Issue (1) and Issue (2) – the 1^st Applicant’s risk and harm

22.  The Board discussed the 1^st Applicant’s evidence in great length in paragraphs 87 to 123. The 1^st Applicant testified before the Board.  Not only did the Board find numerous factual inconsistencies between her testimony and her evidence in the NCF which undermined her credibility, it found even on the basis of the factual matters as she asserted, her and her Uncles’ demonstrated behaviour are inconsistent with the murderous intent of the Uncles towards her and the fears she claims as a result.

23.  In her NCF, the 1^st Applicant said that she was first shown her father’s will in November 2008 before she departed for Dubai, but she told the Board that she first saw the will when she was around 15 years of age quoting, presumably for the purpose of fortifying her evidence, the operative words in the will.  But she could not explain why the timing of her different accounts differed by a wide margin of eleven years.

24.  Her evidence about her ownership of her portion of the Land is inconsistent.  She told the Board that her Uncles were in possession of the Land from 1983 until the date of the hearing before the Board.  In answer to the Board’s question whether she had ever spoken to her Uncles about taking possession of her portion of the Land, she said she did not feel the need to as the Uncles were not in possession of the Land.  Again, when asked why she never said anything to her Uncles about building a house on the Land which was being farmed by her Uncles, she said she was building on a different part of the Land.

25.  In view of her inconsistent evidence in relation to her being the registered owner of her portion of the Land, when she first saw her father’s will, and that she never spoke to her Uncles about her interest in her portion of the Land which she said her Uncles had been farming on, the Board did not accept that she was ever gifted a parcel of the Land under her father’s will.

26.  In the NCF the Applicant stated that she had thought long and hard and decided not to report the death of her aunt to the police.  But she testified to the Board that she had in fact made a report but the police were not interested in following up the murder.  The Board could not accept her explanation for the inconsistency on the basis that it arose as a result of her answering only those questions asked of her.  The Board also found it inconceivable that the police took steps to investigate a complaint of harassment by Joyce but took no action in respect of a complaint of the murder of her aunt, as the 1^st Applicant alleged.

27.  Given the purpose of the Uncles’ visit, the Board found it inherently improbable that having murdered her aunt, the Uncles made no attempt to look for the 1^st Applicant inside the cabin or follow her after she fled.  The Board could not accept her explanation that she managed to escape unnoticed because it was dark.  The Board also found her story about the murder of her aunt implausible; and even if it were to accept her story about the murder, it found her Uncles’ actions indicated that they were not interested in pursuing the 1^st Applicant.  This is also borne out by the fact that the 1^st Applicant’s elder daughter living and studying in Uganda has never been harmed by the Uncles.

28.  The 1^st Applicant claimed that for 17 months between February 2010 and July 2011 (elsewhere she described the period as in 2009 and 2010) she had been receiving ongoing threatening phone calls from her Uncles, yet nothing untoward happened between her aunt’s death in 2010 and July 2011.  Despite the threats, the 1^st Applicant told the immigration officer that she never changed her telephone number to avoid the threatening calls.  But he changed her evidence and told the Board that she did change her telephone number for a short period of about a month and gave an explanation which the Board considered implausible.  The Board found her allegations about the anonymous telephone calls after the confrontation by Joyce vague at best and to directly contradict her account of the timing of such calls at worst.  The Board did not accept her evidence about the threatening calls from her Uncles and the anonymous caller.

29.  The Board found there was no evidence to connect Joyce’s confrontation of the 1^st Applicant with the Uncles. Further, the fact that Joyce was brought into custody for questioning by the police showed that state protection would be available to the Applicant.  The Board also found the 1^st Applicant’s claim of being stalked to be vague and did not accept that it was connected with her Uncles.  Even if she had been stalked, the fact that she was never harmed suggested that there was no intention to harm her.

30.  The Board found that the 1^st Applicant’s account to be “littered with exaggerations and falsehoods”.   It did not accept her story of having been gifted a portion of the Land, her aunt’s murder, her Uncles’ telephone threats, Joyce’s confrontation and the stalking.  Even if her account were accepted, the Board did not consider the 1^st Applicant to be at real risk of proscribed harm should she return to Uganda in the reasonably foreseeable future.

Finding of the Board on Issue (3) – the 2^nd Applicant’s statelessness

31.  The Board considered the 2^nd Applicant’s statelessness in great length in paragraphs 13 to 20, 45 to 58 and 124 to 132 of the Decision.  There was no argument that the 2^nd Applicant had any right of residence in Hong Kong arising as a result of his birth in the territory.  The 2^nd Applicant was born by the 1^st Applicant who had undisputed Ugandan nationality.  He has not applied for or been refused a Ugandan passport and has made no attempts to resolve the matter for example by contacting the relevant authorities and obtaining confirmation of his lack of Ugandan citizenship.

32.  In his Perfected Grounds of Appeal, the 2^nd Applicant raised the issue of his statelessness as a ground for non-refoulement protection.  His counsel relied on the 1954 Convention but provided no evidential basis that the 2^nd Applicant is stateless under the definition set out in Article 1(1) of the 1954 Convention.  What he did was to contest admissibility of the Constitution of Uganda and the Ugandan Citizenship and Immigration Contract Act relied upon by the Director for the proposition that the 2^nd Applicant is a Uganda citizen as of right.  His contention is that pursuant to section 32(1) of the Evidence Ordinance, the entire foreign legislation has to be produced together with a certificate purporting to be signed by the Chief Secretary for Administration to the effect that the relevant provision was in force at the relevant time; but no such certificate had been produced by the Director.

33.  The Board did not accept the 2^nd Appellant’s submission in relation to the prohibitive operation of section 32 of the Evidence Ordinance that Commonwealth legislation is inadmissible in evidence before the Board without such a certificate.  It even held that the section does not apply to proceedings before the Board.  Despite the Board’s request for submissions and evidence in relation to the factual question of the 2^nd Applicant’s statelessness, very limited information was provided by his legal team.  All the Board had before it was the Ugandan citizenship legislation referred to in the Director’s submissions and the Applicants’ evidence that they have not sought to register the 2^nd Applicant’s birth with the Ugandan authorities out of fear that he might be discriminated in some way owing to his birth in Hong Kong to a man who wishes to have nothing to do with him.  In the light of the limited evidence before it, the Board considered the Ugandan citizenship legislations highly relevant to the task of the Board and considered it wrong to exclude them from its consideration.   Section 10(b) of the Constitution of Uganda which is reproduced in identical terms in section 12 of the Uganda Citizenship and Immigration Act provide that every person born in or outside Uganda one of whose parents or grandparents was at the time of birth of that person a citizen of Uganda by birth shall be a citizen of Uganda by birth.  The Board noted that dual nationality is prohibited in Uganda.

34.  As no claims were advanced the Applicants to the effect that the 1^st Applicant ceased at any point in time to hold Ugandan citizenship, the Board found that he has never ceased to be a Ugandan citizen.  There was no issue of dual nationality.  There was no evidence before the Board that an application or registration of birth is necessary before citizenship is acquired in the context of citizenship by birth under the Ugandan Constitution.  Hence, the Board found the 2^nd Applicant a Ugandan citizen by birth.  As a result of that finding and the meaning of a stateless person as set out in the 1954 Convention, the Board does not accept that the 2^nd Applicant is a person who is not considered as a national by any state under the operation of its law.  Therefore, the Board found the 2^nd Applicant would be considered a national of Uganda by the operation of Ugandan law and not stateless.

Finding of the Board on Issue (4) – discrimination against the 2^nd Applicant

35.  The 2^nd Applicant claimed to be at risk of being discriminated against on the basis of his birth outside of wedlock.  As the Board accepted that he was born outside of wedlock, it went on to consider whether he would face either discrimination or other unfavourable treatment amounting to proscribed harm should he return to Uganda, in particular in the areas of education, child welfare and medical services.  It even considered discrimination as a result of his religion, mixed parentage and the fact that the 1^st Applicant had made a non-refoulement claim in Hong Kong.  However, the Applicants have produced very little evidence as to the discriminatory treatment the 2^nd Applicant might receive upon his return to Uganda.  The 1^st Applicant’s evidence were mere assertions and equivocal at best.  She even confirmed she was not aware of any case of discrimination of the kind she asserted.

36.  The Board readily accepted as a result of the colour of his skin, that the 2^nd Applicant may be identified by and subjected to some discrimination by virtue of his mixed parentage and his birth out of wedlock; but considered the risk would not be anything above a “very low level” of discrimination.  Having found that the 2^nd Applicant would be considered a national of Uganda as a matter of law, it rejected the Applicants’ claim of discrimination based on statelessness.

Finding of the Board - Conclusion

37.  Having rejected the 1^st Applicant’s evidence, there is no factual basis to support both Applicants’ claim to protection under any of the four applicable grounds under the USM.  Even assuming the 1^st Applicant’s account were true, the Board did not accept that her Uncles were interested in harming her.  The Board accepted that the 2^nd Applicant has a separate basis of claim founded on discrimination but the risk would not be anything above a low level of discrimination or harassment.  Applying the law applicable to the four applicable grounds under the USM, the Board found the Applicants are not entitled to protection under any of the four applicable grounds.

Legal principles applicable to judicial review

38.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[14].

The 1^st Applicant’s grounds for judicial review

39.  The 1^st Applicant acted in person. She did not advance any grounds for judicial review in the Form 86 or supporting affirmation.  At the hearing, she only repeated her case and her fear.  She emphasised that the Board did not understand the situation in Uganda and that she will be killed, if refouled.   The essence of her complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Uganda.  That is not permissible unless the finding is tainted by errors of law, procedural unfairness or irrationality.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

The 1^st Applicant’s application - conclusion

40.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the 1^st Applicant incredible and rejected her evidence.  It found she had failed to establish the factual basis in support of her claims to protection under any of the applicable grounds.  Nevertheless, it also assessed the Applicants’ claim on the basis of the case as she asserted, but did not consider she would be at real risk of harm should she return to Uganda.  It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  The 1^st Applicant’s application for leave to apply for judicial review is therefore refused.

The 2^nd Applicant’s application – grounds of review

41.  The 2^nd Applicant is represented in this application by Mr Cheng, Solicitor for the Official Solicitor as his next friend.  Mr Cheng identified two potential grounds of review:

(1)  whether the Board erred in law by failing to conduct a child-specific assessment of the risks of discrimination and harassment the 2^nd Applicant would face in Uganda (the “Discrimination Ground”); and

(2)  whether it was unreasonable for the Board to reach the conclusion on the 2^nd Applicant’s nationality and the risk of being stateless without proper assessment of the relevant law and fact (the “Statelessness Ground”).

Mr Cheng accepted that the argument based on the Evidence Ordinance previously relied on by the Applicants’ counsel, which was rejected by the Board, did not appear to be a plausible argument and it was therefore reasonable for the Board to conclude that the 2^nd Applicant is a Ugandan citizen by birth.  Hence, he only sought to apply for leave to apply for judicial review Board on the Discrimination Ground only.

42.  Mr Cheng emphasised the well-settled principle that both the Board and the non-refoulement claimant share the duty of joint endeavour in the exercise of determining the claim for non-refoulement protection.  The Board has a reactive role to ensure that the claim is processed fairly and may occasionally use its resources to assist the applicant in addressing matters relevant to the processing of the claim especially when the applicant presents his cases without legal assistance: AM v Director of Immigration & Anor[15]. The Court has no disagreement with these principles.

43.  Mr Cheng submitted that the Board failed to discharge the duty of joint endeavour.  He pointed out that the Director and counsel for the Applicants appeared to steer the argument towards the issue of statelessness without mentioning any country of origin information (“COI”) which specifically addresses the issue of discrimination and harassment in regard to the 2^nd Applicant’s particular circumstances.  He also argued that the COI on discrimination referred by the Director was taken from part only of the Country Reports on Human Rights Practices for 2015 of Uganda issued by the United States State Department which is directed at discrimination against women and not the complete report.  The COI has no bearing to the type of discrimination in regard to the 2^nd Applicant’s particular circumstances.  But in the absence of further assistance, the Board rejected the 2^nd Applicant’s claim that he would be subjected to “anything above very low level discrimination [or harassment] as a result of his mixed parentage and, to the extent that others came to know of it, his birth out of wedlock”.  He argued that the Board only referred to the “very little evidence as to discriminatory treatment” produced by counsel for the Applicants as well as the alleged equivocal evidence given by the 1^st Applicant at the hearing.  He submitted that the Board’s approach is contrary to the principle of joint endeavour.

44.  As noted by the Board, the Applicants’ case evolved over time.  It started with the 1^st Applicant claiming fear of harm and risk from her Uncles on which the claim of the 2^nd Applicant was hinged to the Applicants asserting the 2^nd Applicant’s statelessness relying on which the 1^st Applicant made a derivative claim.  Even in the Perfected Grounds of Appeal and the Applicants’ skeleton submission, the issue of discrimination in relation to the 2^nd Applicant was not expressly raised.  That explains why, as Mr Cheng observed, the Director and counsel for the Applicants appeared to steer the argument towards the issue of statelessness without mentioning any COI which specifically addresses the issue of discrimination and harassment in regard to the 2^nd Applicant’s particular circumstances.  It was against that background that the Director produced the Country Reports on Human Rights Practices for 2015 of Uganda.

45.  Indeed, all these issues of discrimination were brought up by the Applicants’ counsel.  Their counsel asked the 1^st Applicant about the basis for her assertion that the 2^nd Applicant would be subject to discrimination by the government, neighbours or other groups in Uganda; whether the 2^nd Applicant might not receive education, medical attention and social benefits to the same level as others; whether the 1^st Applicant was aware if children in the same situation as the 2^nd Applicant not receiving medical treatment in the same way as other Ugandans; whether the 2^nd Applicant might not get the assistance of non-government organisations; and whether he might be discriminated against in employment.  Unfortunately, the answers of the 1^st Applicant were either that she did not know or that she was unaware of any such discriminatory treatment.

46.  Nothing said by the courts about the high standard of fairness, duty of joint endeavour and the reactive role of the Director or the Board has relieved the applicant of his duty to discharge the burden of proving his case, or at least the factual basis in support of his case.  It remains his burden to adduce evidence in support of his case, to cooperate with enquiries by the Director and the Board and to provide all necessary information.  The applicant cannot, after setting out his grounds of claim, simply sit back and leave it to the Director or the Board to make out the case for him or do everything for him as if they were his legal team[16].

47.  The Director’s or the Board’s role is to ensure that the claim is fairly processed.  What the high standard of fairness demands will depend on the facts of each case.  They have a reactive role.  Once the Director receives the application he will be in a position to assess what further information he will need in order to process it.  But it never is his role to assist the applicant in making out his claim, which remains the role of the applicant’s legal team.  In T K v Jenkins & Anor [2013] 1 HKC 526 the Chief Judge said at paragraph 23:

“Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

If appropriate, the Director or the Board may use their resources to assist the applicant in addressing matters relevant to the processing of the claim.  Nevertheless, there are limits to what even high standards of procedural fairness will require of the Director or the Board, though of course whether those limits have been reached will depend on the facts of each case. 

48.  In the present case, the discrimination claim was raised at a very late stage, if not at the eleventh hour.  The Applicants took the initiative in launching this discrimination claim.  They were legally represented.  They are supposed to know what their case is and the evidence in support.  They have to play a pro‑active role in presenting and substantiating their claim.  They presented their evidence by way of their counsel’s questions and the 1^st Applicant’s answers, which presumably were not previously known to the Board.  The 2^nd Applicant never lived in Uganda since his birth.  In essence, the 1^st Applicant said she did not know and was not aware of any discrimination of the kind raised by her counsel’s question. Those were the evidence.  Faced with that situation, what could the Board have done in discharging its duty of joint endeavour?  They knew that their case was.  If they presented a case based on speculation, they cannot sit back doing nothing and expect the Board to be part of their legal team to make good their case by making inquiries and doing researches for them.  There is a limit to what the Board may do in the exercise of joint endeavour.  As was held in AM v Director of Immigration & Anor[17], one must be careful not to allow the phrase “joint endeavour” to blur the quite separate roles played by the applicant and the Director.  It is the applicant who bears the burden of proving his case throughout.  The Chief Judge’s observation at paragraph 24 in T K v Jenkins & Anor is apposite:

“There may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.”

On the objective circumstances, the Applicants presented a case based on speculation.  They were aware of what they have to show and have already produced or mentioned all that they wanted to produce or mention. There is nothing more for the Board to assist.  This ground of review is hardly arguable.

49.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was likewise satisfied that the Board’s Decision was not tainted by errors of law, procedural unfairness or irrationality.  The proposed judicial review has no realistic prospect of success.   His application for leave to apply for judicial review is therefore refused.

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

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  Paragraph 23 of the Decision

[6]  Paragraph 24 of the Decision

[7]  FACV Nos 18, 19 and 20 of 2011

[8]  [2018] HKCA 175

[9]  [2016] HKCFI 34

[10]  [1994] 2 HKLR 202

[11]  FACV 15/2011 (unreported, dated 21 December 2012)

[12]  [1994] 1 HKLR 253; CACV 164/1992

[13]  HCAL 251/2015 (unreported, 18 August 2017)

[14]   [2018] HKCA 524 at para 14(1)

[15]  [2014] 1 HKC 416, para 21-22

[16]  T K v Jenkins & Anor [2013] 1 HKC 526 at paragraph 25

[17]  HCAL 102/2012