RE NAMUKASA KULTHOUM

CACV 529/2020

[2021] HKCA 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 529 OF 2020

(ON APPEAL FROM HCAL NO 1786 OF 2018)

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J U D G M E N T

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Hon Linda Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung given on 14 May 2020 refusing to grant extension of time for her application for leave for judicial review and dismissing her application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 18 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 21 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Uganda.  She entered Hong Kong on 19 June 2008 and was refused permission to land.  She lodged a non-refoulement claim on 26 June 2008. 

3.  The applicant’s claim was based on threats from the government of Uganda because her adopted brother (Samson) was a dissident soldier.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 21 July 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 5 March 2018, the Board dismissed the appeal on 18 May 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [54] of the Board’s Decision, the Board rejected the applicant’s evidence regarding the abduction of her mother as incredible.  At [53], [55] and [56] of the Board’s Decision, the Board found that the applicant had a genuine, subjective fear of harm from the Ugandan authorities due to her familial relationship with Samson.  The Board found that the applicant and her mother were able to live in Uganda for 7 years after Samson had left the country, and that she was able to complete her education and found employment without any attempt of harm from the Ugandan authorities. The Board concluded there was no ongoing real risk of harm to the applicant from the Ugandan authorities.

The judge’s decision

7.  The applicant filed a form 86 on 30 August 2018 which contained no ground for seeking relief.

8.  In her affirmation dated 30 August 2018, the applicant explained why it is unsafe for her to return and advanced the following grounds for relief, as summarized by the judge at [13] of CALL-1 Form:

“13. In her affidavits in support of her application, she said that the Board had failed to properly assess her case in relation to the excessive hardship and threats she would face if she returned to Uganda; that the Board only relied upon newspaper information, which would be different from the real situations in Uganda; that the Board was unreasonable to come to conclusions of the facts that the Ugandan authorities are no longer interested in her family; that her fear that her mother might have been killed in Uganda after her return was not real; that it had doubt that it was the imam of the mosque who had assisted her and her mother leave Uganda for Hong Kong. She further said that she might have witness to write letter to support her case and she might have other documents to prove her case.”

9.  In her affirmation dated 27 September 2018, the applicant attached a document entitled “Letter in support of [the applicant’s] claim” signed by two persons.  The contents of the letter were about why it would be unsafe for the applicant to return.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed the application for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [23] of the CALL-1 Form:

“14. The application is late for 12 days, which is only a short period of time. She explained that she was waiting for the Legal Aid Department’s result of her application before filing her application. The applicant’s application cannot proceed further without the court extending time for her to do so. It is a short delay anyway and I shall consider the merits of her case before I decide whether time should be extended to her for her application. See Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28 and AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

15. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. As she was legally represented, her duty lawyer had fully argued her case before the Board. Her duty lawyer had explained the Director’s Decision to her. She said that she understood the Board’s Decision.

16. As to the Board’s findings, she submitted that she did not agree with the Adjudicator, in particular, that the authorities were no longer interested in Samson, who was killed in 2011.

17. The reasons in support of her application relate to the finding of the facts by the Board. The applicant disagreed with the Board, but she was unable to specify what errors the Board has committed in the finding of the facts. Those reasons are her opinions only.

18. In the Board’s Decision, the Adjudicator stated that he understood that she had a genuine, subjective fear of harm from the Ugandan authorities due to her familial relationship with Samson. But he did not accept that there was an ongoing real risk of harm to the applicant [53].

19. The question lies at whether the Board had considered the evidence and had come to a fair and just conclusion of the facts of the case. It will be helpful to consider the reasoning in the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 by reference to the following paragraphs:

‘43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, Ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.’

20. In 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.’

21. Bearing in mind that the Court should subject the Board’s Decision to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met, I consider that, for the reasons given by the Board in paragraphs 31 to 60 of the Board’s Decision, it is not unreasonable for the Board to have come to the conclusions as it had done in this case.

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

CONCLUSION

23. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to proceed with her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.”

Grounds for appeal

11.  In the CALL-1 Form, the applicant was directed by the judge to seek leave to appeal against the decision if the applicant wished to appeal.  The applicant did so within 14 days from the CALL-1 Form but by the time her application was considered by DHCJ C P Pang, it was no longer necessary to seek leave to appeal following the Court of Final Appeal decision in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (handed down on 14 July 2020) which held that leave to appeal was not required in respect of an application for leave to bring judicial review proceedings that had been dismissed for delay.  DHCJ C P Pang granted extension of time for the applicant to file her notice of appeal on 24 September 2020.

12.  In the Notice of Appeal filed on 29 September 2020, the applicant stated that:

(1)  The judge did not consider her “points” but only followed the Director and the Board;

(2)  Both the judge and DHCJ C P Pang failed to give weight to the written statement by the two witnesses who supported the applicant’s claim; and

(3)  The judge ought to have taken steps to verify the truthfulness of the evidence of the witnesses if the judge had concerns over their evidence.

13.  In her skeleton submissions filed on 24 May 2021, the applicant explained why it is unsafe for her to return.  She also claimed that state protection will not be available to her and that internal relocation would not be viable. At the hearing, the applicant emphasises that the grounds for relief stated in her affirmations are true as she would not have left Uganda and come to in Hong Kong had it not been for fear of her own safety.  

14.  The applicant agreed by a letter of 29 September 2020 that the appeal could be heard by two judges.  We heard the appeal on 22 June 2021.

Discussion

15.  The applicant complains that the judge failed to consider the written statement made by the two witnesses and the truthfulness of her affirmations.  It is a well-established principle that an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The court would not be required to assess the alleged threats to the applicant, the availability of state protection or the viability of internal relocation, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  There was therefore no need for the judge to consider what weight, if any, should be given to the written statement and the affirmations adduced by the applicant.  See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

16.  For the reasons given above, there is also no need for us to consider the grounds raised in the written submission or her oral submissions regarding the alleged errors in the findings of fact made by the Board. 

17.  The applicant claims that the judge did not consider her grounds for judicial review and only followed the decisions of the Board and the Director.  In [14] – [23] of CALL-1 Form, the judge considered the submission and the grounds advanced by the applicant.  The judge also examined the Board’s Decision with close scrutiny and found no public law error.  We therefore do not accept that this ground has any merit.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.