Mutyaba Robert v. Director of Immigration and Another

HCAL 1726/2018

[2019] HKCFI 2811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1726 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The applicant asked for a hearing, which was fixed at 10:00 a.m. on 20 March 2019. The applicant was absent on that day and, by an Order of the same date (“the Court’s Order”) his application was dismissed for want of prosecution.

3.By summons dated 1 April 2019, the applicant applied to set aside the Court’s Order. He supported this application with his affirmation, in which he said that he did not receive any correspondence from the court regarding the date of hearing.

4.This Court is prepared to take the face value of his affirmation without further investigation in order to save time and to determine on the merits of the case instead of on technical ground.

5.The Court’s Order is set aside and the Court now proceeds to hear from the applicant.

The applicant

6.The applicant is a Ugandan national. He arrived in Hong Kong on 23 October 2017 through Macau on the strength of his passport as a visitor. He was allowed to stay until 22 November 2017. On 24 November 2017, he surrendered to the Immigration Department and lodged a non-refoulement claim.

7.His reason for his application was that if he returned to Uganda, he would be killed by his uncle due to a land dispute with him.

8.In his statement given to the Director and the Board, he claimed that his father and his uncle inherited some pieces of land from their father, that is, his grandfather. There were disputes between his father and his uncle over a piece of land near his school. When he was 8 or 9 years old, one afternoon, her mother came to school to pick him up home. He learned that his father had passed away because of poisoning. He guessed that it was his uncle, who had poisoned his father because of their dispute over the piece of land. After his father’s death, his uncle preyed on his mother by coming to his house to yell at her. She was scared. In 2000, he was 14 when his mother passed away too. His mother had advised him to leave the home for somewhere else as his uncle might cause trouble to him. He took his mother’s advice and moved to other places with his sister. His sister later got married. In 2017, a friend of his told him that his uncle was looking for him. His sister advised him to leave Nigeria to go to Hong Kong. He took her advice and came to Hong Kong through Malaysia and Macau.

The Director’s Decision

9.The Director considered his application in relation to the following risks:

a. risk of torture under Part VIIC 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 under RC”).

10.By Notice of Decision dated 19 April 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

11.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 18 July 2018.

12.By Decision dated 16 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

13.The Board considered the applicant’s case and found that the applicant’s statement given to the Director were inconsistent with his evidence at the hearing. [27] The applicant wrote in his hand that he had land dispute with his friend. But in his Notice of Claim Form, he said that land dispute was with his uncle. [27(i)] The Board said “I find the evidence of the Appellant incapable of belief. The discrepancies in the Appellant’s evidence are so numerous and impossible to be reconcilable. They have rendered his evidence unreliable.” [28]

Application for leave to apply for judicial review.

14.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

15.He relied upon the Grounds attached to Form 86:

a. the respective Decisions of the Director and of the Board are unreasonable and wrong;

b. the Director had not taken in consideration or given sufficient weight to his argument before reaching his decision;

c. corruption and incompetency of the administration in Uganda is still very serious; and

d. the Director had failed to attain high standard of fairness.

DISCUSSION

The Director’s Decision

16.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

17.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

18.The applicant appeared before me. He confirmed that he was able to speak freely and tell his story fully to the Immigration officer and the Adjudicator. He reads English himself, so he understands the Director’s Decision and the Board’s Decision.

19.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

20.Grounds (1), (2) and (4) are his opinions without any evidence in support of them. They do not stand.

21.Ground (3) simply does not assist him. It is neither here nor there.

22.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 18^th day of November 2019

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