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

HCAL 1444/2019

[2021] HKCFI 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1444 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;  or
	consideration of documents and oral submission by Counsel for the Applicant in open court;

(1)  Leave to apply for Judicial Review be refused;

(2)  Leave to the applicant to re-amend Form 86 and to file the applicant’s 3^rd affidavit together with the exhibits be granted;

(3)  The costs of this application be in the course of the proceedings and her own costs be taxed in accordance with the Legal Aid Regulations; and

(4)  The anonymity order be lifted.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Also, the applicant applies for leave to re-amend Form 86; to file the applicant’s 3^rd affidavit together with the exhibits and costs of this application be in the course of the proceedings and her own costs be taxed in accordance with the Legal Aid Regulations.

2.  The applicant is represented by Counsel, Ms Isabel Tam on instructions of Messrs. Patricia Ho & Associates, solicitors.

The applicant

3.  The applicant is a citizen of Uganda.  She came to Hong Kong as a visitor on 6 September 2016.  She overstayed and surrendered to the Immigration Department on 11 October 2016.  She lodged her non-refoulement with the Immigration Department by written significations respectively dated 23 November 2016, 5 December 2016, 6 and 13 January 2017.

4.  The applicant claimed that, if refouled, she would be harmed or killed by her brother-in-law, Kinobe.  Her husband passed away in March 2015.  Kinobe moved in to live in the same house with her.  He proposed to marry her.  When she refused, he locked her up in a room for three days.  Under the pressure of her late husband’s family, she agreed to marry Kinobe, but she required him to have medical check-up.  She suspected Kinobe was an AIDS patient as his wife died of AIDS.  Her brother took her back to her Hometown where she had stayed for around 7 months.  Then she returned to her matrimonial home.  Kinobe had attempted to rape her.  His attempt failed because she put up a struggle and the neighbours came to the scene.  She had reported the attempted rape to police.  The police officer told her that it was a family dispute and told her to settle it herself.  She moved to live in her friend’s place in Gulu where she stayed for 5 months.  Then she came to Hong Kong on 6 September 2016.  Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By Notice of Decision dated 3 October 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there were no substantial grounds for believing that she would be subjected to any real and substantial risk of being harmed or killed by Kinobe if she returned to Uganda [12]; that on her own evidence, the intensity and nature of the past verbal threats and physical attacks on her did not attain a minimum level of severity [13]; that the risk of harm from Kinobe, even if still existed, was assessed to be localized and could be avoided by relocation [14]; that she did not ask for asylum immediately upon arrival in Hong Kong [15]; that there were country of origin information (“COI”), which showed the inefficiency and corruption of the Uganda police or authorities; however, there were COI showing that the Ugandan government had taken practical steps to redress these problems, therefore, state protection would be available to her; that assistance to women in need were available in Uganda, which would reduce her risk [16-19] and that internal relocation was an option open to her [20].  Based upon the findings, the Director rejected her claim on all the risks above.

The Board’s Decision

7.  The applicant appealed to the Board against the Director’s Decision.  The Board, having considered the Court of Appeal’s decisions in ST v Betty Kwan & Ors, CACV 115 of 2013 §§20-54, decided to deal with the applicant’s appeal by way of a paper review without a hearing.  The Board had taken the following issues into account before coming to its decision of not holding a hearing, viz.:

(1)  whether there is anything missing from the Appellant’s case which might be brought out at an oral hearing;

(2)  whether there is any point of fact or law which might be better brought out;

(3)  whether there is any authority, for or against the Appellant, that should be addressed;

(4)  whether there is any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the Appellant should have the chance to address the point;

(5)  whether is any general advantage in holding an oral hearing, even though this might occasion extra trouble and expense; and

(6)  whether, in the name of overall fairness, the Appellant might have anything useful to contribute by way of being heard.

8.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that state protection was available to her and there was no real risk of her being harmed or killed by Kinobe if she returned to Uganda [24 (c)]; that the applicant’s case did not fall within the context of the Persecution risk under the Convention as her unwillingness to return to Uganda was not due to her fear and there was no evidence that the state was involved [32]; that she had not suffered any serious physical harm and the Board did not accept that there was substantial ground for the existence of a real risk of torture from Kinobe if she returned to Uganda [33]; that BOR 2 was not relevant to her case [37]; that she failed to show that she faced a foreseeable, real and personal risk if she returned to Uganda [41] and internal relocation was an option open to her [44].

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

10.  Her counsel has submitted comprehensive grounds in support of her application.  They will be discussed below.

DISCUSSION

The relevant legal principles

11.  For the purpose of this application, the following legal principles are applicable.

(1)  “15. … … .  It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.” Peter Po Fun Chan (2007) 10 HKCFAR 676.

(2)  The Court should bear in mind that the Board’s Decisions have to be examined with rigorous examination and anxious scrutiny. . Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

(3)  In an appeal against the Director’s Decision, the Board has the power to review the merits of the case, and accordingly it may consider the same evidence that was before an immigration as provided under section 18 (1)(a) of Schedule 1A of the Ordinance.  Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-refoulement Claims Petition Office & Director of Immigration [2018] HKCFI 2726, §19.

(4)  “184. … … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3.  The Court [the Board] is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter [Director’s Decision] … …” Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743.  

(5)  Section 12 of Schedule 1A of the Ordinance provides that determination of appeal can be done without a hearing:

“The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

(6)  The Court of Appeal in ST v Betty Kwan, the Secretary for Security and the Director of Immigration [2014] 4 HKLRD 277, Hon Cheung CJHC, Lam VP & Poon, held:

“26. … …there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.

…

44. … … It is for the adjudicator, in the exercise of his discretion, to take the most effective and fairest way to approach the concern in question.”

(7)  The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“19. … … The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

…

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.

…

32…. … if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

…

35. … …, the question of whether there is an internal relocation alternative is part and parcel of whether or not the claimant is a Convention refugee or, in our present context, a genuine CAT claimant, in relation to which the claimant, as explained, bears the burden of proof. It is for the claimant to make out his case. In relation to the internal relocation issue, he accordingly bears the burden of proof … …

…

37. … … Given the high standards of fairness required of the screening process, it must be incumbent, in most if not all cases, upon the Director to clearly raise the issue of internal relocation, identify specifically or generally (as fairness and circumstances may require) the place(s) that could provide a safe haven to the torture claimant if returned to his country, make known or supply to the torture claimant the materials that he intends to rely on in relation to this issue, offer to the torture claimant whatever assistance in terms of gathering relevant information and materials that it is fair and right for the Director (as opposed to the torture claimant and his legal representatives) to seek and obtain, and to afford the torture claimant a proper opportunity to deal with the issue so raised.

…

40. Finally, judicial review. A decision of the adjudicator under the enhanced screening mechanism is subject to judicial review. However, the court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review. The standard of review is that of “rigorous examination and anxious scrutiny”: Prabakar, para 45.

…

52…. … the bottom line of the high standards of fairness required of the screening process is fairness.  And fairness, in the present case, did not require the adjudicator or the Director to find out any such information [referring to the information known to the appellant personally] for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”

(8)  Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”.

Ground 1.1: Failure to hold an oral hearing

12.  Counsel submitted that the Board had taken into its consideration the correct principles in ST v Betty Kwan & Ors, CACV 115/2013, 26 June 2014.  However, Counsel submitted that the adjudicator erred in deciding that high standard of fairness could be maintained without a hearing as he concluded that the applicant had not made out her case.  The following issues were raised and discussed:

(1)  Counsel considered that there were matters that required clarification or elaboration for determining the issue of risk of future harm, including her psychological suffering, namely: the issue of widow inheritance, the availability of state protection and the availability of internal relocation.

(2)  Section 12 of Schedule 1A of the Ordinance provides that determination of appeal can be done without a hearing.  The question is whether the Board could do so justly without a hearing. [11. (4) above]

(3)  The Board accepted the applicant’s stated facts. The credibility of her evidence is not in issue.  Also, the Board is entitled to rely upon the findings of the immigration officer as contained in the Director’s Decision. [11. (3) above]  Bearing in mind that the burden of proof, including the issue of internal relocation lies upon her, it will be incumbent upon her to raise those issues with the Board.  However, she did not raise those issues in her Notice of Appeal. [page 321 of Hearing Bundle 2] I shall deal with each of those issues below.

 i.  The issue of widow inheritance as the custom in Uganda was not raised before the immigration officer by the applicant or her legal representative.  The custom itself may not be relevant unless it amounts to forced marriage.  The applicant complained that Kinobe had attempted to force her to marry him and had attempted to rape her.  She reported the attempted rape to police.  See paragraph 7.17 of the Director’s Decision.  Her complaint is on the basis that Kinobe could not rape her even if widow inheritance custom existed in Uganda.  She told the police officer that there was no witness.  The police officer said that it was a family dispute and advised her to settle the matter herself.  The police officer did not say that because of widow inheritance custom, Kinobe could not be held liable if he forced her to have sex with him or marry him.  Widow inheritance is objectionable only if the widow does not consent and her brother-in-law forces her to marry him.  If the widow consents to this custom, it is not a reason for non-refoulement claim.  Since the issue of custom of widow inheritance was not brought up before the immigration officer, the Board was unable to consider it and it should not be brought up before this Court for consideration. Nupur Mst v Director of Immigration [2018] HKCA 524 §14(5).

 ii.  Her personal circumstances such as psychological harm are only known to herself.  She should have brought up this issue with the immigration officer and she also has the burden of proof. [11. (7) 23 above]  In the Director’s Decision, this issue was not raised.  The Board does not have the duty to raise this issue itself unless she had raised it in her Notice of Appeal.  She did not raise this issue in her Notice of Appeal. [11. (7) 52 above]  She is now represented by counsel.  There is no medical evidence in support of any psychological harm she has been suffering.

 iii.  State protection issue had been considered by the Director and the Board.  The applicant had only gone to one police station to make her complaint of Kinobe attempting to rape her.  The police officer gave her his advice to settle the matter herself because he considered that it was a family matter.  If she disagreed with the police officer, she could complain to another police officer or take the matter to another police station or government authorities.  If the applicant considered that she would not be able to get assistance from the police, she had to support her belief with evidence.  By going to only one police station and relying on one police officer’s opinion, she formed her own opinion that the state could not render assistance to her, she has not discharged her burden. [11. (7) 23 above]  According to the Director’s Decision, the applicant told the immigration officer that she was aware of the Uganda Police Force emergency hotline and citizens could lodge complaint against police officers through on-line submission and that police officers would be arrested for corruption.  She simply believed that those services would not be useful for her without attempting to obtain the services herself.  See paragraphs 7.24-7.25 of the Director’s Decision.  I do not consider the Board has the duty to make further investigation into the issues as proposed by counsel in her submission. [11. (7) 52 above]

 iv.  As to the availability of internal relocation, the Director had considered this issue in paragraphs 20-23 of his Decision.  The Board had also taken on board this issue in paragraphs 43 and 44 of its Decision.  She had stayed in her Hometown for 7 months and her friend’s place in Gulu for about 5 months safely.  The Board had also considered Mbarara as the alternative relocation.  It has a population of 472,629 and an area of 1,846.4 sq. km.  Counsel submitted that the Board should have made enquiries on her linguistic and cultural barriers if she relocates to Mbarara.  The applicant had not given any reason why she had the language or cultural problem in her home country.  At least, she should have no problem in her Hometown and Gulu where she had stayed for 5 and 7 months respectively.  The burden is on her to state her problem which will start the journey of joint venture with the immigration officer.  The applicant was in the driver’s seat.  She had not started the journey herself 11. (7) 35 above]  This is a clear case where the applicant’s evidence is contradictory with her bare allegations.  Since the immigration officer had canvassed the issues and held that her allegations were not acceptable, there is no reason for the adjudicator not to believe the Director’s Decision and that he should take up the matter himself to make further investigation. [11. (3) above]

(4)  Counsel submitted that the Board should not draw any inference adverse to the applicant by using commons sense without further probing, questioning or inquiry.  From the analysis above, it seems that the Board did not draw any adverse inference against the applicant.  The applicant simply failed to discharge her burden of proof and raise the issue for the immigration officer in the interview, or for the adjudicator in her Notice of Appeal.

(5)  As to counsel’s comment on the adjudicator deciding the question of whether there should be an oral hearing based on his view of the merits of the issue in question as it appears on paper, her comment will have merit if the adjudicator simply used his common sense on issues which clearly required further investigation for his decision.  As discussed above, it appears that the adjudicator did not adopt common sense only to determine whether there should be oral hearing.  Those issues raised by counsel have been discussed.  They do not warrant further investigation.

(6)  The applicant fails to demonstrate that there was any prejudice to her because the Board had not held an oral hearing for her. The Board retains its discretion to determine the appeal without a hearing if, taking into consideration all the circumstances, it is satisfied that the appeal can be justly determined without a hearing. [11. (4) & (5) above]

(7)  This ground fails.

Ground 1.2: Failure to observe the duty of joint endeavour

13.  Counsel submitted that the adjudicator had failed to observe his duty of joint endeavour in two ways, viz.: obtained corroborative evidence in the USSD 2017 Report and the Home Office OGN; secondly, obtain further COI material on widow inheritance, which the Director had overlooked in his Decision.

14.  The Director had considered the USSD 2017 Report and the Home Office OGN 2013.  In his Decision, he had set out police corruption and government measure against it, in paragraphs 16-19.  The Board had also considered the USSD 2017 Report and the Home Office OGN as set out in the Director’s Decision.  It has no duty to consider corroborative evidence in favour of the applicant’s case only.  Its duty is to make a fair assessment of the applicant’s claim.  In response to counsel’s second point, as discussed above, the real issue before the Board was forced marriage rather than widow inheritance custom in Uganda. See §12 (3) (i) above.

15.  Counsel submitted that had the adjudicator considered the reports’ corroborative views of the applicant’s claims, he would not have come to the conclusion that “there is no indication to show that the police’s inaction was acquiesced by the Ugandan government” and that the Appellant “still can report her case to other police stations or government authorities”.  This comment ignores the other materials which say that the Ugandan government has been taking steps to deal with police corruption.  The Director’s Decision has set out the statistical evidence of prosecutions against corrupt police officers.  After all, the Director has to make a balanced assessment of the real situations of state protection in Uganda.  The adjudicator relied upon the Director’s Decision and he agreed with the Director’s finding of the facts, which he is entitled to do [11. (3) above]  The background in which the applicant made her complaint to police has been discussed in paragraph 12 (3) (iii) above.  I consider that it is fair for the adjudicator to come to his opinions in relation to state protection under the circumstances as set out in the Director’s Decision.

16.  The issue of widow inheritance has been discussed above [12. (3) (i)].  The Director in his Decision had taken on board this issue.  See paragraphs 16-19 of the Director’s Decision.  Paragraph 18 sets out the organizations in Uganda promoting human and women’s human rights to the women in Uganda.  The Director had taken into consideration the applicant’s evidence that police officer in Nsangi Police Station failed to take action of her complaint about Kinobe’s intended rape and asked her to settle it as a family herself.  The Director considered that even if her evidence was true, there was no indication to show the alleged police’s inaction was acquiesced by the Ugandan government.  Counsel has not been able to point out why the Director was unreasonable to make such assumption. Counsel submitted that had the adjudicator taken further steps, there would be discovery of further credible and objective COI materials which show the practice of widow inheritance has been prevalent throughout Uganda and still remains prevalent with lack of recourse and meaningful protection for the victims of such practice.  The issue of whether widow inheritance is widely practiced in Uganda seems not to be the issue for the Director.  Even if such practice were widely practiced in Uganda, she would not be subjected to this practice if she can move to live in other places where Kinobe cannot locate her, such as her Hometown and Gulu.  State protection and internal relocation can reduce or neutralize this risk.  There is no reason for the adjudicator to go further into the custom of widow inheritance in Uganda.

17.  This ground fails.

Ground 1.3: Failure to give adequate reasons

18.  Counsel submitted that the adjudicator failed to follow the line of reasoning in RM v Gerard Paul Muttrie, Esq (unrep.  HCAL 166/2015, 3 March 2016), §34, providing adequate reasons in his decision to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant.”

19.  The line of reasoning in RM case is not the touchstone for determining whether the decision of the Director or the Board should be judicially reviewed.  The determining factor is whether the decision-maker has given adequate reasons to explain the decisions he has reached.  Whether the reasons given by the decision-maker are adequate depends on the context of the decision and the circumstances of the case.  This issue had been discussed by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority, 25 November 1998, (1997-1998) 1 HKCFAR 279 at pages 15-17 where the CJ gave his views as follows:

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question. … …

In my view, the following general observations could be made as to the reasons that should be given by the Tribunal [referring to the Obscene Tribunal].

First, the reasons given should show that the Tribunal has addressed the substantial issues before it and show why the Tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

Secondly, when deciding on questions of indecency or obscenity, there may be cases where the contents of the articles in question would virtually speak for themselves.  In these instances, the duty to give reasons could be discharged by describing the contents without much more. … …”

20.  The Board must give its decision with reasons in writing.  See section 23(3) of Schedule 1A of the Ordinance.  The RM presentation of the reasons may be applicable to the situation where the adjudicator has conducted a hearing in which he had made inquiries by putting questions to the applicant and he made findings against the applicant.  But it is important to stress here that this line of reasoning should not be applied mechanistically.  The Court of Final Appeal has stated clearly that the adequacy of reasons depended upon the context of the determination and the circumstances of the case.  In this case, the adjudicator has not conducted a hearing himself.  He simply relied upon the Director’s Decision, in which the immigration officer had made the assessment of the evidence of the applicant, who was legally represented.  Since the adjudicator is entitled to rely upon the evidence before the immigration officer and consider the Director’s Decision, he may come to the same conclusion as the immigration officer’s if he agrees with the immigration officer. [11. (3) above]  There is no criticism on the immigration officer’s assessment of the evidence.  The Director has given the reasons for his decisions in the Director’s Decision.  I find no fault in his reasons.

21.  This ground fails.

Ground 2.1: Error of law

22.  Counsel submitted that future risk that the applicant may face upon her return to Uganda is the subject matter of the assessment and past harm only serves as an indicator of future ill-treatment, relying upon AM v Director of Immigration & Anor [2014] 1 HKC 416.  Counsel further submitted that the adjudicator misdirected himself by requiring the applicant to show past ill-treatment or severe injury of serious harm in order for her to establish the assessment of risk of future risk. 

23.  The adjudicator had considered the applicant’s experiences in Uganda where she was forced to marry Kinobe; she was locked up for three days and Kinobe attempted to rape her.  See paragraph 24 of the Board’s Decision.  Having considered her injuries, the adjudicator did not accept that she had suffered any serious physical harm.  The burden is on the applicant to prove future risk of harm [11. (7), 19 above]  She had not produced any evidence other than her experiences in Uganda to the immigration officer.

24.  The Director did not require her to prove her future risks.  Her experiences above are indications if she would be subjected to future risks if she returned to Uganda.  The Director was entitled to consider her experiences to project any future risks if she returned to Uganda. The issue of widow inheritance has been discussed above.  The real issue is forced marriage.  Such risk can be reduced or neutralized by state protection or internal relocation.  The Board had considered the Director’s Decision and it agreed with the Director.

25.  This ground fails.

Ground 2.2: Failure to take into account relevant consideration

26.  Counsel submitted that the adjudicator has failed to take into account relevant consideration as to the future risk of harm; the unavailability of state protection and the unavailability of internal relocation.

27.  The adjudicator had considered her experiences of forced marriage by Kinobe, police inaction to her complaint and that she was safe in her Hometown and Gulu in Uganda.  He came to his conclusion that she would not have a real risk of torture from Kinobe if she returned to Uganda.  See paragraph 33 of the Board’s Decision.  In any event, state protection and internal relocation had been considered by the adjudicator – §§30-32 & 43-44 and they are available to the applicant if she returns to Uganda.

28.  Counsel submitted that the adjudicator failed to consider the applicant’s reasons against internal relocation due to linguistic and cultural barriers.  The applicant had raised the reasons before the immigration officer.  It appears that the immigration officer did not pursue these issues in the interview.  Counsel submitted that the adjudicator should take up the issues and make inquiries by holding a hearing, which he had failed to do.  The question here is whether it is unreasonable for the immigration officer or the adjudicator not to pursue these issues further.

29.  Counsel agreed that the applicant’s reasons are only her general statement without any evidence or particulars.  They are therefore only her bare allegations.  Bearing in mind that the burden remains on her to prove her case, it may be said that it would be incumbent upon the immigration officer to clarify with the applicant.  However, when the applicant said in her statement that she had stayed in her Hometown for 7 months and at her friend’s place in Gulu for 5 months and nothing happened to her, it becomes clear that her evidence is contradictory to her bare allegations.  It was unnecessary for the immigration officer or the adjudicator to pursue her bare allegations.  They were quite entitled to dismiss her bare allegations.

30.  This ground fails.

Ground 3.1: Failure to properly balance relevant considerations

31.  Counsel relied upon ground 2 above and said that the adjudicator failed to give sufficient weight to the applicant’s account of events and the corroborating COI materials, in particular, the attempted rape and three days of false imprisonment by Kinobe and the COI materials supporting the applicant’s claim.  Also, counsel submitted that the adjudicator cherry-picked COI materials and came to his conclusion against the applicant, which led to his irrational findings as to the risk of future harm, the availability of state protection and the availability of internal relocation.

32.  Ground 2 has been considered above.  The issues of future risk, state protection and internal relocation have been considered.  It cannot be said that the adjudicator has failed to properly balance the relevant considerations.  Quite the contrary, the immigration officer had set out the corrupt practice of the police and the governments’ measures to combat corruption in police force.  Having balanced the materials, he came to his conclusions on state protection.  As to internal relocation, the applicant had given evidence to prove that she may relocate herself to Hometown or Gulu or Mbarara.  There seems to be no point to seek corroborative evidence in support of the applicant’s bare allegations.  There is no evidence that the immigration officer had cherry picked the COI prejudicial against the applicant.  Counsel complained that only two items of the COI were considered.  The number of items of COI is not the determining factor.  What matter are the intensity and credibility of the evidence that the immigration officer considered relevant for his determination of the issues before him.  The adjudicator had not heard the applicant.  He relied upon the Director’s Decision, which he is entitled to do, and he agreed with the Director.  The finding of the relevant facts is within the province of the Director and the adjudicator. [11. (7) above]

33.  This ground fails.

Ground 3.2: Flaws in logic and reasoning

34.  Counsel relied upon the case of Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 to say that inadequacy of reasons and the error of law committed by the adjudicator render the logic and reasoning of his decision fundamentally flawed and irrational.  The above-mentioned judgment is a lengthy one.  It will assist the Court if counsel identified the relevant page or part of the judgment she relied upon.  In any event, the propositions are generally accepted for the present purpose.  Grounds 1 and 2 have been discussed above.  It is quite difficult to say that the reasons given in the Director’s Decision are inadequate or erred in law.  See paragraph 6 above.  The adjudicator was entitled to consider the Director’s Decision [11. (3) above].  Having considered the Director’s Decision, the adjudicator agreed to his views and he had given his reasons in the Board’s Decision.

35.  Since the Board relied upon the Director’s Decision without holding a hearing itself, I have to consider the Director’s Decision as well.  The Court does not find any error of law or procedural unfairness in the Director’s Decision or Board’s Decision.  The findings of the Director or the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

36.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

37.  I shall make an order to give leave to the applicant to re-amend Form 86, to file the applicant’s 3rd affidavit together with the exhibits, the costs of this application be in the course of the proceedings and her own costs be taxed in accordance with the Legal Aid Regulations.  I shall further make an order that the anonymity order be lifted.

38.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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