Tusiime Godfrey v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1769/2018

[2020] HKCFI 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1769 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 of the Decision dated 16 July 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 Board and replaced it by Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Ugandan national. He came to Hong Kong on 30 July 2011 as a visitor and was allowed to stay until 29 August 2011. He overstayed and surrendered to police on 5 September 2011. He was referred to the Immigration Department the next day. He made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. On 15 July 2013, his torture claim was refused and he appealed. His appeal was dismissed on 7 October 2013. He was repatriated to Uganda. He came to Hong Kong again on 20 November 2015 and was refused entry. He was sent to Dubai from which he went to the Mainland China and sneaked into Hong Kong on 2 December 2015. On 10 December 2015, he surrendered to the Immigration Department. On 11 December 2015, he lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or even killed by his neighbour, Mr. Ruhuma Adolf.

6.The events leading to his leaving Uganda for Hong Kong are summarized below.

a.     Ruhnma was a retired army officer and a senior member of the ruling party, National Resistance Movement (“NRM”). In 2009, he bought a piece of land adjacent to the applicant’s land at his home village.

b.     Ruhuma offered to buy his land, but he refused outright. Ruhuma then gave him an ultimatum that either he sold or give his land to him. He simply ignored him.

c.     Shortly afterwards, Ruhuma took over his land and removed the plantation there. He returned to his home land and reported the matter to police. The police arrested Ruhuma and detained him for a few days. Ruhuma was released. He believed that Ruhuma had bribed the police officers for his release.

d.     Ruhuma threatened him that he would retaliate and kill him.

e.     He made enquiry with the police and was told that he had to pay US4000 for action against Ruhuma. He did not have the money for the police.

f.     Ruhuma sent three people to his home and asked for his whereabouts. His mother refused to disclose to them and they assaulted her. She had to be hospitalized. He did not report the matter to police as he had no faith in them. His mother advised him to leave Uganda.

g.     He came to Hong Kong in July 2011 where he stayed and lodged his torture claim.

h.     In May 2014, his mother told him that Ruhuma had moved to another country. He returned to Uganda in July 2014. There, he was contacted by Ruhuma again. Ruhuma threatened to kill him. He had no money for police protection, so he left Uganda in April 2015 for Dubai for a job. In November 2015, he returned to Uganda where he stayed for 2 weeks and left for Hong Kong. He entered Hong Kong on 20 November 2015 but was refused entry. He sneaked into Hong Kong illegally.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 27 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk of being harmed by Ruhuma if he returned to Uganda was low [14]; that state protection was available to him [20 & 22] and internal relocation was an option open to him [23]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 28 June 2018.

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

11.The Board considered the applicant’s evidence and found that it did not accept that he had a piece of land as he alleged and Ruhuma targeted his land [53]; that his mother was assaulted [54] and that he had a real risk of suffering proscribed harm should be return to Uganda [56].

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 28 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

15.I put the Board’s findings to him and asked for his comments. He said that he had no evidence to prove his case.

16.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave to the applicant to apply for leave for judicial review. Accordingly, I dismiss his application.

Dated the 7^th day of July 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