Namukasa Kulthoum v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1786/2018

[2020] HKCFI 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1786 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:

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 18 May 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by adding the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Ugandan national. She came to Hong Kong on 19 June 2008 and was refused entry by the Immigration Department. On 26 June 2008, she lodged a non‑refoulement claim.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the government led by President Museveni, the military and/or other state actors in Uganda as well as other non-state actors including those with the consent and/or acquiescence of the Ugandan government and/or other state authorities because of her relationship with her adopted brother, Samson Mande (“Samson”), also known as Col Samson.

5.The applicant claimed that Samson was a dissident soldier in opposition to President Museveni. Samson left the military and went to Rwanda, from there to Sweden and the President was looking for him and his supporters. She had set out the events below to show her fear if refouled.

a.     There were three plain-clothed men, whom she considered to be the people from the government or the military authority to her home to make enquiry of Samson’s whereabouts.

b.     Her father was taken away by these three men and he was tortured by them. He died because of the torture.

c.     Those three men came to her home to take away her three sisters and she had no knowledge of them thereafter. She suspected they had died already.

d.     Her other siblings left Uganda for Botswana and Zambia. She and her mother moved to live in her aunt’s home for seven years. They then moved back of their home as her aunt had passed away.

e.     One night in 2008, the three men came and took away her mother. She was released the next day. The three men interrogated the whereabouts of Samson. They threatened to kill her mother and said that they would rape the applicant in her presence.

f.     She went with her mother to a Mosque and asked for help from the imam, who assisted them to obtain the passports and to leave the country for Hong Kong.

The Director’s Decision

6.The Director considered her 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 21 July 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.  The Director found that the level of risk as claimed by the applicant if refouled was low [14]; state protection was available to her [18] and internal relocation was an option open to her [19].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and she was legally represented by a Duty Lawyer under the Duty Lawyer Scheme. The Director was also legally represented. The hearing took place on 5 March 2018 and the Adjudicator had considered submissions from the legal representatives. He had also made his research on the country of origin information himself.

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

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     It noted that in the applicant’s written signification, there was no reference to her being related to Samson, nor the death of her father, nor disappearance of her siblings [35].

b.     It did not accept that Samson is her adopted brother and considered that the applicant had exaggerated the closeness of the connection between her family and Samson [36].

c.     It accepted the relationship between the applicant’s family and Samson and because of that, it accepted that the Ugandan authorities were at one stage targeted her family for harm [41].

d.     It did not accept the Ugandan authorities remain interested in the applicant or her mother in 2008 as according to the country of origin information (“COI”) [36].

e.     It did not accept that the aunt’s home where the applicant and her mother had lived for more than 5 years was a remote place [47].

f.     It did not accept that the applicant’s mother was abducted, or assaulted by the three men in February 2008 and it did not accept that the three men threatened the applicant [51].

g.     It accepted that her mother left Hong Kong for Uganda in 2012. But it considered that it was speculative for the applicant to say she lost contact with her mother because harm fell on her mother [52].

h.     It accepted that the applicant had a genuine, subjective fear of harm from the Ugandan authorities due to her familial relationship with Samson. But it did not accept that there was an ongoing real risk of harm to the applicant from the Ugandan authorities [53]

i.     It considered that there was only a remote or speculative risk and therefore not real risk that the Ugandan authorities would, in 2018, target her for proscribed harm due to her familial relationship with Samson.

11.For the reasons, see paragraphs 31-60 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

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.

DISCUSSION

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.

FURTHER DIRECTIONS

24.It is further directed that:

a.     If the applicantintends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

Dated the 14^th day of May 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