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

HCAL 1844/2019

[2024] HKCFI 3007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1844 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Namuyanja Haulah (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 12 December 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Ugandan. She was born on 1 January 1989 in Kampala, Uganda. She received about 10 years of education.

The Claim

3.  The Applicant relied on the following facts for her claim. By the arrangement of her parents, the Applicant married her husband (“Husband”) in 2005 when she was 16 years old. Husband was in his late thirties at that time, and he was the head of Mukono Police Station where the Applicant’s father worked as a regular police officer. Husband threatened to lay off her father if he did not arrange the marriage of the Applicant. The Applicant strongly opposed to the marriage initially but her parents locked her up until she conceded.

4.  After the marriage, Husband raped the Applicant repeatedly and beat her severely. The Applicant did not seek medical treatment because she wanted to keep a low profile. She used at-home treatments to treat her wounds, swellings and bruises.

5.  Husband arranged his brother (“ACS”) to live in their home as a means to keep an eye on the Applicant. The Applicant and ACS developed a romantic relationship soon after and they slept together when Husband was working night shifts.

6.  The Applicant became pregnant in 2008 with the child of ACS. In early 2009, that was about 1 month before the baby was expected to be born, Husband discovered the affairs between the Applicant and ACS. He beat the Applicant with ropes in an attempt to force an abortion and he also used a heated knife to burn her legs. The Applicant was locked up for about two weeks with no food and barely any water. The Applicant’s brother rescued her and took her to a hospital where she gave birth to her daughter.

7.  The Applicant’s father asked the Applicant to go back to live with Husband, so she went back to Husband’s home after giving birth to her daughter. In the years since the Applicant returned to Husband’s home, Husband beat her up repeatedly and raped her in front of ACS. ACS occasionally brought her food and took care of their daughter. ACS was never harmed by Husband. Husband vowed to kill the Applicant and her daughter after her daughter had grown up.

8.  The Applicant did not seek medical care or report Husband to the police because Husband was a police officer.

9.  In March 2015, ACS helped her applying for her passport and arranged for her to go to China by air. ACS stayed behind in Uganda to take care of the Applicant’s daughter. After coming to Hong Kong, the Applicant learnt from ACS that Husband was furious at her running away. She subsequently lost contact with ACS and did not know if Husband harmed ACS or her daughter after she left Uganda.

10.  The Applicant claimed that she would be harmed or killed by Husband if she were returned to Uganda.

Procedural history

11.  The Applicant arrived in Hong Kong on 12 March 2015 as a visitor and was permitted to remain until 11 April 2015. She overstayed and surrendered to the Immigration Department on 15 April 2015. By a written representation of 25 June 2015, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”).

15.  In the Form 86, the Applicant named USM as the proposed respondent and the Board as the interested party. USM is the mechanism adopted by the Director in screening non-refoulement claims. It is not a decision maker and cannot be a respondent to a judicial review. The Applicant exhibited the Board’s Decision to the Supporting Affirmation. It is clear that the Applicant intended to seek leave for judicial review to challenge the Board’s Decision. In such case, the Board should have been named as the respondent to the intended judicial review. I proceed with this application on the basis that the Board will be the intended respondent.

The DOI Decision

16.  The Director noted that the injuries suffered by the Applicant from Husband were not serious. Husband had the opportunities to seriously harm or kill the Applicant in the past but he refrained from doing so. This showed that Husband did not really intend to kill or seriously harm the Applicant.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant if necessary.

18.  The Director further found that internal relocation would be viable. If the Applicant moved to Gulu or Jinja, Husband would have great difficulty in locating her. After considering her age and education, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  After considering the Applicant’s claims including her claim form, the record of her interview, the DOI Decision, her notice of appeal and her oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

21.  The Board asked the Applicant why she returned to live with Husband after giving birth to her daughter. She said it was because she was young and her father asked her to. The Board found her explanation to be implausible because according to her, Husband beat her severely before and after giving birth to her daughter and made threats to her daughter.

22.  The Board also found it implausible that ACS failed to take substantive actions to protect the Applicant and their daughter for almost six years when Husband repeatedly beat the Applicant and threatened their daughter. Lastly, the Board found it incredible that the Applicant would fail to make any contact with her relatives in Uganda to ascertain the fate of ACS and her daughter.

23.  Because the Board held that the Applicant was not at risk from Husband, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return.

24.  The Board further found that state protection would be available to her even if Husband was the head of a district-level police station. Although Husband was a police officer, there was no evidence that he was acting in an official capacity when he allegedly harmed the Applicant.

25.  The Board further found that Gula or Jinja were viable options to the Applicant for internal relocation within Uganda. With the support of her father (a retired police officer), ACS and other family members, it would not be unduly harsh to expect the Applicant (an able-bodied woman with 10 years of education) to safely relocate within Uganda to avoid the alleged danger from Husband.

26.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

27.  In a judicial review, the court does not step into the shoes of the decision makers.

28.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.  The Applicant failed to attend the court hearing scheduled for 10 October 2024 despite notice of hearing having been sent to her on 25 September 2024. I decide to proceed with this application according to papers already placed before the court.

31.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only produced the Board’s Decision and the hearing bundle for the hearing before the Board as exhibits to the Supporting Affirmation.

32.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

33.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

34.  The Board was of the view that there was not a real risk that the Applicant would face any of the proscribed forms of harm should she return to Uganda. Reasonable state protection was available and internal relocation was viable to the Applicant.

35.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

Conclusion

36.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Postscript

37.  The notice for the court hearing referred to in §30 above (“Notice”) was sent to the last known address of the Applicant advised to the court by the Director of Immigration in a letter dated 19 July 2024. This is the most up-dated contacting address of the Applicant. However, the Notice was returned to the court on 23 October 2024 undelivered and marked “Incomplete address”. The Notice was returned to the court after the scheduled court hearing and after this judgment has been prepared.

38.  As the Notice sent to the last known address of the Applicant could not reach the Applicant, the court is of the view that it will only be a futile exercise to re-fix another hearing for this case as notice for the re-fixed hearing sent to the same address will likely meet the same fate. The court will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavor to forward them to the Applicant especially when the Applicant attends before the Director’s officers to report under the recognizance.

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