Ssamula Peter v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2422/2018

[2020] HKCFI 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2422 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:

Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 3 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Director to be replaced by the Board as the respondent and adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Ugandan national. He came to Hong Kong on 28 August 2014 as a visitor. He overstayed without permission and was arrested by police. He lodged his non-refoulement claim on 11 November 2014

5.He claimed that if refouled, he would be harmed or even killed by the people from the ruling party, National Resistance Movement because he belonged to the opposite party. For the reasons below, it is not necessary to set out the facts of his case here.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 28 February 2018, the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 2 October 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

DISCUSSION

11.The applicant appeared before me on the date of hearing and he confirmed that all his problems in his home country had been solved as he had stayed out of politics. He would have no risk if he returned to Uganda. His wife and child, who were in Hong Kong had returned to Uganda. He wished to go back to join them as soon as possible.

12.I advised him that in the circumstances, his application should be dismissed and once dismissed, he could not apply to re-open his application. He agreed.

CONCLUSION

13.In the circumstances, I accede to his request and dismiss his application.

Dated the 23^rd day of January 2020

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