Nakibuuka Lilian v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2622/2018

[2020] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2622 of 2018

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”) with the Director of Immigration (“the Director”) as interested party.

The applicant

2.The applicant is a Ugandan national. She came to Hong Kong as a visitor on 22 January 2016 and was permitted to stay until 21 February 2016. She overstayed. On 22 February 2016 she surrendered to the Immigration Department. On 8 June 2016, she lodged her non-refoulement claim by written signification.

3.In support of her claim, she claimed that if refouled, she would be ill-treated by Aisha, the wife of her former employer, Sekamate Ronald.

4.In her statements given to the Director and the Board, she said that she was introduced to work in Ronald’s house as a domestic helper by her friend in 1998 or 1999. Ronald raped her in 1999 and she bore a child. She gave birth to a son called Howard on 31 July 2000. Nothing happened between 2000 to 2010 when she opened a shop selling clothes with other two partners. In 2014, she attended a funeral where her friend disclosed that Howard was the son of Ronald. Ronald’s wife, Aisha was angry. In 2015, she found the backdoor of her shop was opened and the clothes were on the floor with acid on them. She considered that it was Aisha who had done it. In November 2015, she was told that Aisha was going to do harm to her and Howard. She was scared and sent Howard to Sudan to live. She came to Hong Kong.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 13 April 2017, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 27 February 2018.

8.By Decision dated 5 November 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion that there was not a real risk the applicant would face any of the proscribed forms of harm should she returned to Uganda [95]. The facts found are set out below.

a.     There were inconsistencies in the core elements of her claim without explanation [80].

b.     There were inconsistent details in relation to her allegation of rape by Ronald [81].

c.     There was significant inconsistency in her evidence of telling her aunt about the rape [83].

d.     When the inconsistencies were taken cumulatively, and when they go to central aspects of the applicant’s claim without explanation, the Board had to find that the applicant’s evidence was not reliable [91].

10.In her Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.She relied upon the grounds attached to Form 86, which I shall set out below.

1.     The Board had unlawfully fettered his discretion.

2.     The Adjudicator acted in a procedurally unfair manner – the hearing bundle was given to her shortly before the hearing without translation and she was confused at the hearing.

3.     The Board’s Decision was unreasonable and irrational – it relied upon news not officially recognized and hearsay.

4.     The Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

12.The applicant appeared before me. She confirmed that she had had a fair interview with the immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

13.I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

14.It is quite obvious that, apart from some fundamental facts such as her nationality, the Board did not accept the facts as stated by the applicant in support of her claim. Therefore, the applicant had no factual basis for her claim. Those grounds above are quite irrelevant.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review by the court. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to the case.

16.Ground (2) fails as the facts are inconsistent with what the applicant said before this Court.

17.The other grounds are her opinions without any evidence in support of them or particulars. They fail.

18.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

Dated the 15^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