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

HCAL 2825/2019

[2025] HKCFI 2720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2825 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.   The Form 86 is amended on the court’s own motion.

2.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 25 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 August 2019 (“Board’s Decision”).  The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 27 April 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  As no request for a hearing was made, this court will determine the Leave Applicant on paper without a hearing: O.53, r.3 (3) of the Rules of the High Court.

3.  In the Form 86, the applicant named the Director as the proposed respondent and as the “Immigration Department” the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

4.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.  The applicant is a national of Uganda.  He arrived in Hong Kong on a tourist visa in December 2016.  On 26 January 2017, the applicant surrendered to the Immigration Department for having overstayed in Hong Kong.  On 22 March 2017, the applicant was convicted of the offence of overstaying and was given a suspended sentence.  On 8, 23 April and 11 May 2017, the applicant lodged a non-refoulement claim covering all applicable grounds other than the risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.[5]  The claim was based on a fear of being harmed or killed by the people of the National Resistance Movement party (“NRM”) owing to the applicant’s support for the Forum for Democratic Change (“FDC”).

6.  The applicant stated that since 2 October 2015, the applicant started supporting the FDC and participated in its presidential election campaign once.

7.  As the NRM was fearful that the president of the FDC would win the election, the army controlled by the NRM started taking members of the FDC to detention and inflicting tortures on them.  The applicant and his father, who had also joined the FDC, were also taken away.  The applicant stated that most of his colleagues and friends from FDC including his siblings were taken to prison and subsequently disappeared or killed.  The applicant still did not know what happened to his siblings.  The applicant was tortured during the two-weeks’ detention from 29 December 2015 to 13 January 2016, leaving scars on his body.  

8.  After the applicant’s release from detention, the army took the applicant to a forest in a remote area.  The army tied up the applicant and let the applicant fend for himself.  The applicant was found by passers-by who paid a motorcycle taxi to take a 3 and ½ hour journey back to his home. 

9.  The applicant’s father was detained for 2 days and seriously tortured. His father died 4 days after his release.

10.  After the applicant had treated his injuries with local herbs, he relocated to Kasese, which was about 200 miles from his home village.  He recovered from his injuries after 2 weeks in Kasese. 

11.  The applicant moved back to his home village afterwards as the NRM still targeted the FDC supporters after the former won the presidential election. Upon the advice and the arrangement of his mother, the applicant fled Uganda and came to Hong Kong.

12.  The Director decided against the applicant’s claim on all applicable grounds. The Director did not accept that the past ill-treatments the NRM inflicted on the applicant attained a minimum level of severity.  The Director also found that there the reasonable availability of state protection and internal relocation would further lower or negate the level of risk.  Hence, the Director rejected the claim and the applicant appealed to the Board.

Board’s hearing and the Board’s Decision

13.  On 26 June 2019, the applicant attended a hearing before the Board.  At the hearing, the applicant adopted the hearing bundle placed before the Board, and clarified matters the latter raised.  In the Board’s Decision, the Board considered the relevant Country of Origin Information (“COI”) in the hearing bundle that was both supportive of as well as against the applicant’s claim, and asked for the applicant’s comments.  The Board concluded that rapid advancement and efforts had been made by the Ugandan government in cleaning up the problem with the police there.  The Board was further satisfied that the Ugandan police had taken action against NRM leaders and members who offended the law.  Hence, the Board was satisfied the reasonable availability of state protection that would lower and negative the claimed fear from NRM. 

14.  Whilst the Board accepted that the applicant had been detained and assaulted for 14 days and was later brought to a forest in a remote area, the Board found that the assault was minor.  The Board found that although there were 6 to 7 people who were in possession of guns and knives, the applicant did not sustain major injuries.  Hence, the Board concluded that the ill‑treatment from the army or the NRM on the applicant was of low-intensity.  The Board thus found that the applicant would only face a small future risk.

15.  The Board further found that the army and the NRM were only acting in their personal and private capacities rather than on any official orders.  The Board therefore concluded that the applicant failed to establish his claim on all grounds and dismissed his appeal.

Legal principles applicable to judicial review

16.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

17.  When assessing a non-refoulement claim, a decision-maker/the Board is required to adopt  “high standards of fairness”[6], which encompasses the obligations, among others, to :

(i)      Apply “anxious scrutiny”[7]. A decision-maker/the Board should adopt a fair procedure in reaching a rational decision[8] by giving a claimant/an applicant every reasonable opportunity to establish his claim.

(ii)    Consider all relevant considerations[9], including taking into account every factor that might tell in favour of a claimant/an applicant[10].

(iii)   Adopt an active role by drawing attention to a claimant/an applicant “matters that needed clarification or elaboration so that they can be addressed by” the claimant/the applicant.  This is important, as a decision-maker/the Board cannot assume that a claimant/an applicant can foresee all the points troubling a decision‑maker/the Board[11].

(iv)   Give a claimant/an applicant a reasonable opportunity to address any issues that may result in adverse credibility findings, so that a claimant may address the case against him.[12]

(v)    Evaluate information that goes “beyond the testimony of the applicant and include[s] in-country reports, expert testimony”, and attach weight to everything that is capable of having a bearing, be it great or little.[13]

(vi)   Conduct the credibility assessment with a structured approach in relation to detail, specificity, internal consistency and consistency with a basis or foundation in the evidence[14] by looking at the applicant’s case in the round[15].

18.  I will apply the above principles when considering the Leave Application.

Applicant’s grounds of review

19.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation, the applicant advanced the following grounds in support of the Leave Application:

(1)  The ill-treatment he was subjected to in the past had reached and attained the required minimum level of severity;

(2)  The adjudicator of the Board had not applied the high standard of fairness in that it had failed to take into account the foreseeability of him being killed by the NRM upon his return;

(3)  In considering the relevant COI, the Board had erred and breached the procedural fairness in having failed to consider the propaganda by the government designed to deceive the international community without obtaining a second opinion;

(4)  The Board had breached procedural fairness in having failed to find that the army and the police were in fact under the ruling government of NRM;

(5)  The Board had failed to consider the risk of harm by using the wrong burden of proof in depicting the shortcomings of the applicant’s claim.

Discussion

Ground (1): past ill-treatment

20.  In the Board’s Decision, the Board accepted that the applicant had been subjected to 2 week’s torture by the army and was released to a remote forest.  However, the Board concluded that the applicant’s past ill-treatment was of low intensity for the following reasons:

(i)     The applicant was never severely or critically harmed even though he was outnumbered by his assailants;

(ii)    Although the assailants possessed guns and knives, the applicant’s major parts were not harmed in the attack;

(iii)   The army could have easily exerted further harm or even killed the applicant during the 2 weeks’ detention if they had wanted to;

(iv)   After the applicant’s release, he was able to treat himself by using herbs and recovered after 6 days.

21.  The above reasons the Board gave for its conclusion on the low level of ill-treatment appear to have been substantially based on its subjective common sense.  The Board seemed to have overlooked the applicant’s evidence (that the Board accepted) that the assaults were so severe that he had scars all over his body.  The applicant was beaten many times in different ways, including being kept in a very cold room for several days. [16] The Board had assumed that the applicant had already recovered after 6 days with herbal treatment. However, it has disregarded the applicant’s evidence that stated that the applicant only got better after the herbal treatment.  In fact, during the two weeks after he had relocated to Kasese, he was not feeling well most of the time[17].

22.  It is settled that the applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan^[18] (which was later followed in TI v Winston Leung^[19] at [61]).  A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: TI ^[20] at [61]. 

23.  In light of the lack of meaningful assessment of the level of the past ill-treatment in relation to the applicant’s evidence which the Board accepted, and the Board’s apparent application of its own common sense or assumptions in taking the view that the assailants could have inflicted more severe harm on the applicant if they wanted to, I conclude that Ground 1 is reasonably arguable in that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness

Grounds (2): future risk from NRM

24.  The Board accepted that the applicant was a FDC supporter.  However, the Board found that the applicant was merely a grass-root supporter of FDC for two months.  On that basis, the Board concluded that there was no well-founded fear of persecution from NRM.

25.  According to the applicant’s account set out in the Director’s Decision, his colleagues and friends as well as the applicant’s siblings were taken away by force by the army controlled by the NRM party.  They were taken to prison and later disappeared and killed[21]. Additionally, the applicant’s father also died after having been detained and tortured.  According to the said evidence therefore, the brutality applied by the NRM was not confined to just members or high-level supporters of FDC.  Since the Board had accepted the applicant’s evidence, the Board’s conclusion is therefore not reasonably supported by the unchallenged evidence. The Board’s conclusion on the lack of persecution risk owing to the applicant’s gross-level involvement was not only unsupported by evidence, but appeared to have been based on its own assumption.  The Board’s conclusion that no “reasonable person would kill someone or cause serious physical harm because of their involvement in grass-root support in the opposing party” (Board’s decision [98]), as already discussed above, is therefore demonstrably flawed.  I conclude that Ground 2 is reasonably arguable.

Grounds (3) and (4): COI and improvement with the police and army not linked with NRM

26.  In the Board’s Decision, whilst the Board had referred to the COI which was both favourable and unfavourable to the applicant, it has nonetheless appeared to agree with the COI materials set out in the Director’s Decision. 

27.  A high standard of fairness requires the Board to demonstrate that it had conducted a proper and independent assessment of COI and made its own findings: A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471 (Kwan VP & K Yeung J)at [33] – [34].  The Board does not seem to have been able to demonstrate any proper assessment.

28.  In the circumstances, the Board’s findings that there was no evidence that the attackers were under the NRM orders and the availability on state protection are arguably irrational and unreasonable. Grounds 3 and 4 are therefore reasonably arguable.

Ground (5):  application of the wrong standard of proof

29.  In the Board’s Decision, the Board found that since there was no reliable evidence that the perpetuators during the applicant’s detention were under orders from officers, the government or the state; and further that the applicant did not complain to the police or the higher authorities or to the court, it therefore concluded that the army and NRM were acting purely on their personal and private capacities (Board’s Decision [65] and [71]). 

30.  The Board’s above conclusion basing on the lack of evidence appears to have infringed the above guidelines in [17] (i), (ii) and (iii), the “high standards of fairness” principle.

31.  High standards of fairness require a decision-maker to properly take into account every factor favourable to a re-foulement claimant[22], and allow the claimant to “be given every reasonable opportunity to establish his claim” [23]including drawing attention to matters that need clarification or elaboration or any issues that may result in adverse credibility findings so that they can be addressed by the claimant[24].

32.  In the present case, the Board did not seem to have done so whilst it had not challenged the applicant’s account of the past events.  Thus, the Board’s conclusion (at [98]) that the applicant “being further harmed or threatened to be killed by the army or the NRM …found to be implausible and disproportionate… ” has offended the principle against making subjective assumption.  It is arguably unfair and unreasonable.  Thus, ground (5) is reasonably arguable.

33.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and it does not meet the required high standards of fairness.

Conclusion

34.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

35.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

36.  The Form 86 is amended on the court’s own motion.

37.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

38.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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