MUTEBI ROY DOREEN v. TORTURE CLAIM APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 339/2021

[2022] HKCA 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 339 OF 2021

(ON APPEAL FROM HCAL 1444/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the court):

1.  This is the judgment of the court.

2.  This is an appeal by the applicant, Madam Mutebi Roy Doreen, against the decision of Deputy High Court Judge KW Lung (“the judge”) dated 23 June 2021 refusing her leave to apply for judicial review against the decision of the Torture Claims Appeal Board dated 4 March 2019 dismissing her appeal against the decision of the Director of Immigration dated 3 October 2018 rejecting her non-refoulement claim.

3.  The applicant is a national of Uganda. She was married to her late husband who passed away in March 2015. She left Uganda in August 2016, arriving in Hong Kong the following month. She was allowed to enter as a visitor but overstayed from 7 October 2016 onwards. She surrendered to the Immigration Department a few days later and was convicted on 17 November 2016 of breaching her condition of stay by overstaying.

4.  Shortly thereafter, she made a non-refoulement claim. Her claim was based on her fear that she would be harmed or killed by her brother-in-law because she had refused to marry him. The basis of her claim was summarised by the judge at paragraphs 3 and 4 of his judgment and set out in more detail in paragraph 7 of the Director’s decision and paragraph 22 of the TCAB decision.

5.  In essence, she said that after her husband’s death, her family proposed that her brother-in-law should stay with her to look after her and her three daughters, and she agreed to this. However, about a month later, he proposed marriage but she refused. Thereafter, he harassed her, and following a further proposal being rejected, locked her in her bedroom for three days during which he threatened repeatedly to kill her. She then agreed to marry him under pressure from her late husband’s family but insisted that he have a medical examination as she suspected he might have AIDS. He refused and she then left her home to stay with her brother. Eventually, she decided to leave Uganda.  When she returned to her home to retrieve her passport, she was attacked by her brother-in-law who attempted to rape her. Although she reported the rape attempt to the police, she was told that she should try to resolve matters herself as it was a “family dispute”. She then stayed with a friend in another town for some months before leaving Uganda for China and then Hong Kong.

6.  As noted, the Director and the Board rejected her claim, although it must be noted that her credibility was not in question. She then sought unsuccessfully to judicially review the decision of the Board on the basis of various forms of procedural unfairness, illegality and irrationality or Wednesbury unreasonableness.

7.  Her application having failed before the judge, she now appeals to this court. The Director and the Board were not represented in the hearing below and were not served with the notice of appeal and did not appear before us. Before us, the applicant was legally aided and was represented by Ms Isabel Tam who had previously acted for her on a pro bono basis.

8.  Ms Tam relied on supplemental notice of appeal which essentially contended that the grounds of judicial review relied upon were arguable and that leave for judicial review should have been granted.

9.  Grounds 2, 3 and 4 in the notice of appeal raise issues of procedural fairness relating to the failure by the court to hold a hearing, the failure to observe the duty of joint endeavour and the failure to give adequate reasons.

10.  Grounds 1 and 5 relate to illegality or error of law said to have been committed by the Board by its misapplying the legal test for non-refoulement claims and by taking account of irrelevant matters or leaving out of consideration relevant matters.

11.  Ground 5 also, along with ground 6, raised issues of irrationality and Wednesbury unreasonableness.

12.  We are satisfied that each of the grounds of appeal and the grounds for judicial review raised by the applicant are sufficiently arguable so as to make it appropriate for her to be given leave to apply for judicial review of the Board’s decision and that, with respect, the judge was in error in rejecting her application for leave.

13.  Given that we are only concerned with whether or not leave should be granted, and as the Director has not appeared before us but may do so at the hearing of the substantive judicial review application which we give leave to bring, it would be inappropriate for us to go into the proposed grounds for judicial review in detail at this stage.

14.  While in our view not all of the grounds put forward are equally strong, we do consider that each of them meets the threshold of arguability for leave to bring judicial review proceedings to be granted. Accordingly, we allow the appeal and give leave to the applicant to bring judicial review proceedings against the decision of the Board on the grounds identified in the amended Form 86 and supplemental notice of appeal.

15.  So far as costs are concerned, given that the appeal has essentially proceeded ex parte, we make no order as to the costs of this appeal or in the court below, and will order that the applicant’s own costs from the date of the grant of legal aid be the subject of legal aid taxation.