TUSIIME RACHEAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 383/2018

[2020] HKCFI 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 383 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Uganda who last arrived in Hong Kong on 4 January 2016 with permission to remain as a visitor up to 3 February 2016 when she did not depart and instead surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Uganda she would be harmed or killed by her fiancée for refusing to go through their arranged marriage.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Rubaga, Uganda, but after her parents died in 1994, she and her siblings were placed in the care of their maternal aunt in Village Nabutiti,Kansanga, Kampala, Uganda.

3.  However, when by 2003 her aunt was financially unable to take care of the Applicant and her siblings, she therefore sought help from her friend Haji who was a wealthy Muslim businessman with several wives, and he agreed to allow the Applicant and her siblings to live in his house and to financially support them including putting them through college.

4.  Later in 2005 her aunt told the Applicant that to get the financial support from Haji she had offered to marry the Applicant off to be his wife, and in November 2006 the Applicant therefore went through a traditional engagement ceremony with Haji in Kansanga,Kampala before going off to university in Kampala where she subsequently met and formed a relationship with a fellow student.

5.  As a result the Applicant no longer wanted to go through the marriage with Haji,but when she went to his home during school vacation and told him so, he locked her in his house and insisted that she should become his wife by beating her and threatening to kill her and her siblings.

6.  After about one month the Applicant managed to flee from Haji’s house and returned to the university to reside in the dormitory, and for the next several years she would travel to various places in Africa and lived with her boyfriend in South Africa in 2011, but when she heard that Haji had sent his men there to look for her in 2015, she then fled to Singapore,Hong Kong and Thailand, and then to Hong Kong again in January 2016 when she overstayed and raised her non-refoulement claim, for which she completed a Non-refoulement Claim Form on 26August 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.  By a Notice of Decision dated 22 September 2017 the Director of Immigration (“the 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 her absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by Haji upon her return to Uganda due to the low intensity and frequency of past ill-treatment from him, that in the absence of 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 adult with work experience to move to other part of Uganda away from her home district such as Jinja or Gulu where it would be difficult if not impossible for Haji to locate her.

9.  On 3 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 7December 2017 before the Board during which she gave evidence and answeredquestions put to her by the adjudicator for the Board.  On 15December 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and exaggerations in the Applicant’s evidence that she was not considered as a credible or reliable witness of truth and that her claim was found to be highly improbable or fanciful, that it rejected her claim that she was unwilling to return to Uganda because of any well-founded fear of being harmed by Haji,or that she was at risk of being harmed by him, that in any event in the absence of any evidence of any official involvement that state protection would be available to her, and concluded that she has failed to establish her claim for non-refoulement protection under any of the applicable grounds.

11.  On 8 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely repeated her claim that she would be harmed or killed by Haji if returned to Uganda and that the Board’s decision was unfair to her without providing any particulars or specifics or elaboration of how it was so, nor did she identify any error of law or procedural unfairness in her process before the Board or in its decision, and in the absence of which I am unable to find any reasonably arguable ground for her intended challenge.

12.  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 an 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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 50 of its decision with the benefit of hearing her in evidence and in her answers to questions raised of her claim during the oral hearing of her appeal, and in the absence of any legal error or procedural unfairness being shown by the Applicant, I do not find any basis to challenge the finding of the Board.

14.  Furthermore, the fact that it has been established by the Director in his decision thatthe risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable orunsafe for her to relocate to other part of Uganda, there is simply no justification to afford herwith non-refoulement protection in Hong Kong: see TKv Jenkins& anor [2013]1 HKC 526.

15.  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.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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