NAKAZIBWE LINDA v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 741/2018

[2020] HKCFI 2402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 741 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 32-year-old national of Uganda who arrived in Hong Kong on 21 February 2011 with permission to remain as a visitor up to 23 March 2011, but was arrested by police on 5 March 2011 for the offence of soliciting for an immoral purpose and breaching her condition of stay for which she was subsequently convicted and sentenced to prison for 6 weeks, during which she raised a torture claim to the Immigration Department on the basis that if she returned to Uganda she would be harmed or killed by her paternal uncle for taking away the title deeds of the family land, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her non-refoulement claim.

2.  The Applicant was born and raised in Village Kabulasake, Mityana Town, Mubende District, Uganda where her family owned some land in their home district, and after her father’s death, the land became vested in her paternal uncle, and her mother moved the family to live with the uncle in Mulago Town in Kampala District where the Applicant upon leaving school ran some business selling garments and accessories in Kampala.

3.  In August 2010 she stole the title deeds of his uncle’s land to obtain a loan from a money-lender, and with the money she departed Uganda in November 2010 with a business associate for Malaysia, and then to China, and from there she travelled to Hong Kong in February 2011 during which she was informed by her cousin that her uncle was furious with her for stealing the title deeds of his land and had threatened to kill her upon her return to Uganda.   

4.  As she became fearful for her life, the Applicant therefore did not depart for Uganda and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim and later sought non-refoulement protection, for which she completed a Supplementary Claim Form on 12 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  Whilst released on recognizance pending the determination of her claim, the Applicant had been arrested by police again on three separate occasions for the offences of theft or soliciting for an immoral purpose, and for which she was convicted and sentenced to prison on separate terms totaling 15 months.      

6.  By a Notice of Decision dated 1 September 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all 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 HKBOR (“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”).

7.  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 her uncle upon her return to Uganda as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no direct evidence other than hearsay of any threats from her uncle against her, that their dispute was a private family matter 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 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 197,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Uganda away from her home district in large cities where it would be difficult if not impossible for her uncle to locate her.

8.  By a Notice of Further Decision dated 4 September 2017 the Director again rejected the Applicant’s claim upon receiving and considering further representations from her which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 September 2016, and for which she attended 2 oral hearings on 21 and 22 March 2018 before the Board with legal representation from DLS during which she gave evidence and answered questions put to her by the adjudicator for the Board and with submissions made on her behalf by her lawyer.  On 19 April 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the Applicant’s account of her claim of fear of harm from her uncle over her stealing of the land title deeds unconvincing, unreliable and incredible and rejected her reason for not willing to return to Uganda because of fear of harm from her uncle, and found in any event that their dispute was a private family matter without any state or official involvement that state/police protection would be available to her upon her return to Uganda that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 27 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of documents from her hearing bundle for her appeal before the board without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such I do not find any reasonably arguable basis 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 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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 90 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her 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.  

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Uganda, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v 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