Case Document

100%Judiciary

HCAL 1590/2018

[2020] HKCFI 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1590 of 2018

BETWEEN

	Namagembe Adella	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and she 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 (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. 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 September 2019.

2.Leave was granted to the applicant to amend Form 86 to name the Torture Claims Appeal Board as the respondent and its decision under judicial review should be dated 6 August 2018.

The applicant

3.The applicant is a national of Uganda. She came to Hong Kong on 30 March 2011 as a visitor and was permitted to stay for 30 days. She was arrested by police on 15 April 2011 for soliciting for an immoral purpose. On 20 April 2011, she was convicted of the offences of soliciting for an immoral purpose and breach of condition of stay and was sentenced to a total of two months’ imprisonment. On 27 May 2011, she lodged a torture claim.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her three brothers-in-law due to a dispute over the estate of her late husband. Her husband died in May 2010. He left her a house and some pieces of land. She had four children. The three brothers-in-law asked for a share of her husband’s estate. She told them that the estate was for her four children. They had a discussion before the Local Chairman in the area. They were unable to reach agreement. Then she received a letter at the front door of her home threatening that they would do anything to get what they wanted. She believed that the letter came from her brothers-in-law. She did not receive any subsequent threat from her brothers-in-law. But she felt that someone was following her. She became fearful as she heard rumours that her house might be burnt down. On 30 March 2011, she came to Hong Kong from China.

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 29 June 2016 and by Notice of Further Decision dated 11 July 2017, collectively called (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decisions

7.The applicant appealed to the Board against the Director’s Decisions and she attended a hearing before the Adjudicator on 6 December 2017.

8.By the Board’s Decision dated 6 August 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s evidence [53-66] and, for the reasons set out in the Board’s Decision, came to the conclusion:

“67. The Claimant is lacking in credibility and I am not persuaded even to the low standard required that the Claimant suffered any threats at the hands of her three brothers-in-law whilst in Uganda.”

Application for leave to apply for judicial review

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

11.In her affirmation in support of her application, she simply stated that she needed judicial review on her claim.

DISCUSSION

12.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. But she was distressed at the time of the interview with the immigration officer. She confirmed that her lawyer was present throughout the interview.

13.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 held:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

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

CONCLUSION

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

Dated the 4^th day of June 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 4/6/2020 Namagembe Adella Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4116/16/7/86/U10 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)