RE NANGOBI SOPHIE

HCAL 539/2021

[2021] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 539 OF 2021

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D E C I S I O N

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1.  The applicant is a national of Uganda.[1] She came to Hong Kong on 2/6/2017. She was permitted to stay as a visitor for a month. She overstayed until 5/7/2017 when she surrendered to the Immigration Department. She raised a non-refoulement claim in 2017 (“2017 claim”). This claim was rejected by the Director on 16/5/2018. There was no appeal to the TCAB [2].

2.  On 19/9/2019, she was sentenced to imprisonment for 3 years.[3] She filed the non-refoulement claim in this case on 12/3/2020 (“2020 claim”).  She feared that she might be harmed or killed by some unknown people if she returned to Uganda.  Those people kidnapped her mother and sister and killed her father because of his political affiliation.  They also abducted and raped her.

3.  The basis of the “2017 claim” was that her grandma told her that her father was poisoned and died in August 2016.  She thought it was related to politics as her father was a member of the Democratic Party of Uganda.  She reported to the police but there was no investigation.  In September 2016, her mother and sister were kidnapped.  Her home was ransacked.  She left home after 2 days.  She hid at various places in Rubaga [4] for about 6 months.  Her grandma arranged passport and visa for her to leave Uganda in March 2017.  She stayed in Thailand for about 2 months and Malaysia for a month.  She finally came to Hong Kong in June 2017.

4.  In the “2020 claim”, she gave additional information that in around 2008 she and her father were abducted by a group of unknown men from her father’s home in Iganga.  They were taken to an unknown place.  She was raped by them.  Her father was tortured to death by them in the same incident.  She was detained in a room for 7 days.  Eventually she escaped and returned to Rubaga and lived with her mother until she left Uganda in March 2017.

5.  She explained to the Director in June 2020 that those men, who had raped her, told her that her father was killed.  She was not sure when her father was killed.  She did not disclose the rape to the Director earlier as she was safe in Hong Kong.  She just forgot about it.  She had lost contact with her family.

6.  The Director rejected her claim on 7/7/2020.  The TCAB rejected her appeal on 30/3/2021.

7.  The adjudicator found that the applicant would not have forgotten the rape in 2008 had it really occurred.  Her failure to mention it during the 2017 claim gravely undermined her credibility.  In addition, she was inconsistent about the time her father died.  It was unconvincing that she did not know her father’s death was related to political activities until 2016.  She did not know any of the kidnappers.  It was unreasonable for her to stay at the same town (Rubaga) after the kidnap.  The adjudicator found the events asserted were illogical.

8.  On 16/4/2021, the applicant applied for leave for judicial review of the TCAB decision.  In her affirmation, she disagreed with the TCAB decision.  She maintained that her life was in danger.

9.  She attended a hearing before this court on 22/6/2021.  She maintained that her evidence given to the TCAB and the Director was true and accurate. She asserted that she could remember the names of those people who endangered her life.  She could obtain fresh evidence if she was released from the CIC.

10.  The applicant’s evidence was inconsistent in material aspects.  Her explanations were unconvincing.  I agree with the reasons of the adjudicator.  The decision of the TCAB was reasonable.  There was no error of law or procedures.  There was no reasonable prospect of success in the intended judicial review.  I refused leave for the intended judicial review on 22/7/2021.

11.  The applicant filed a summons on 20/9/2021 for extension of time to appeal against the decision of this court.  She was about 6 weeks out of time. [5]

12.  In her affirmation, the applicant asserted that she was not given any opportunity to explain the situation in Uganda.  She was not aware of the time limit for appeal as she was unrepresented.

13.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[6]

14.  The applicant is out of time for about 6 weeks which is a significant delay.  She had attended a hearing on 22/6/2021 before this court.  In the hearing, she asked to be released from CIC so that she could obtain fresh evidence.  She was unable to say what fresh evidence she had in mind.  It had already been 4 years after she came to Hong Kong.  I do not find this acceptable.  Besides, she was not entitled to free legal representation at all stages of the USM application.  She had appealed to the TCAB in time.  She should be aware that there would be a time limit for appeal.  At this stage, the merits of the intended judicial review is also an important issue [7].

15.  The applicant’s factual basis was illogical.  Her explanation about the failure to mention the rape incident during the “2017 claim” is most unconvincing.  The adjudicator was justified in discounting her credibility.  The adjudicator was also correct to reject her claim given the various inconsistencies.  The intended judicial review was of no merit.

16.  In the circumstances, I refuse the application for extension of time to appeal.