Nankya Sylivia v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 763/2018

[2020] HKCFI 2829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 763 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.The Applicant, born in 1984, is a national of Uganda.  She arrived in Hong Kong on 16 August 2010 and was permitted to remain until 21 August 2010 as a visitor.  She overstayed and remained in Hong Kong unlawfully.  On 24 September 2010, she was arrested by the police and she later lodged a non-refoulement claim in October 2010.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [4-26] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by the mother and brother of the Applicant’s late husband.  Moreover, she is afraid of being jailed because she jumped bail for a murder charge and the prison conditions in Uganda are very poor and harsh.  She claimed that after her late husband died in a traffic accident in 2006, his mother falsely accused her of murdering her late husband as she wanted to take his property.  Her mother-in-law made a false report to the police who prosecuted the Applicant for murder.  She suspected that her mother-in-law had bribed the police.  The Applicant was remanded in jail for two months before she was granted bail pending trial.  In the prison, she was only provided food once a day and forced to work for very long hours until very late at night.  There was no bed in the prison and she had to sleep over a thin mat on the floor.  She was afraid to go back to prison.  Her mother-in-law also threatened to kill her.

The Director’s decision

4.By notices of decision dated 11 September 2015 and 14 June 2017 respectively, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  In the first decision, the Director assessed the level of risk of harm as low.  Firstly, the absence or low intensity and frequency of past ill treatment from her husband’s family is indicative of a small future risk of harm.  On the other hand, she was allowed to be bailed out and she was free to depart her country, there is no indication that the police would arrest her again.  Her fear that she would be jailed if she returns to her country is nothing more than speculation.  Secondly, the availability of state protection and internal relocation alternative further lowers or negates the level of risk.  In relation to BOR 3 risk, the Director did not accept that she had ever suffered any ill treatment which had reached the threshold of a minimum level of severity to constitute the risk.  It was not accepted that she faced a genuine and substantial risk of being subjected to such feared ill-treatment warranting protection under BOR 3. In the absence of any additional information provided by the Applicant, the Director further found that she failed to establish BOR 2 risk.

The Board’s decision

5.The Applicant attended a hearing before the Board on 26 August 2016 and 26 July 2017.

6.By a decision dated 15 September 2017, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board found that the level of risk that the Applicant would be killed by the mother-in-law and brother-in-law is low and the feared ill-treatment is unlikely to materialise.  The Board was of the view that the Applicant’s bail condition obviously did not disallow her to leave her country.  Otherwise she would have been arrested when she previously on 8 March 2009 left for Kenya and when she finally left Uganda for Thailand on 21 November 2009.  Therefore, her allegation that she jumped bail is without basis [37].  Moreover, state protection and internal relocation alternatives are available to the Applicant. For the assessment on BOR 3 risk, the Board stated that “the feared ill-treatment is assessed to be unlikely to materialise.  Therefore she does not face a genuine and substantial risk of being subjected to BOR 3 ill-treatment upon her return to Uganda.  Her appeal on this ground must accordingly fail.”

8.Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The Applicant filed a Form 86 on 30 April 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86 and supporting affirmation, the Applicant did not set out any proper grounds for the relief sought.

11.By a letter dated 27 August 2020, the court invited the Applicant to confirm whether she request an oral hearing and whether she wishes to provide her reasons in writing for her delay in the application.  The Applicant replied by a letter dated 3 September 2020 explaining that “during that time I was fighting for my life…in September 2017 I was admitted to Queen Elizabeth Hospital … (later) admitted to Queen Mary Hospital where I received chemotherapy…”

12.An oral hearing was set down on 7 October 2020 and the Applicant attended the hearing in person.  At the hearing she explained that she was diagnosed with cancer in her abdomen (she could not express clearly which organ in her abdomen) and she received chemotherapy treatment in November 2017.  After the treatment she did not know what to do next and therefore delayed in her application.  She believed that upon conviction of the murder charge, she would be sentenced to imprisonment for five years or more.

Discussion

13.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

14.When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

Application out of time

15.It must be pointed out first that the Applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

16.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

17.In this case, the 3-month time limit ended on 15 December 2017 and the application was late by 4 months.  The delay was quite substantial.  The Applicant explained that the delay was due to her disease.  She was diagnosed with cancer in September 2017 (the Board’s decision was made on 15 September 2017) and finished her chemotherapy treatment at Queen Mary Hospital in November 2017.  After the treatment she did not know what to do next and delayed in her application.  I accept her explanation about her disease and the treatment received.  While she could have made her application earlier, given the serious disease that she was suffering from and the likely anxiety arising from it, the delay in her application is understandable.  I will treat the delay as excusable and focus on the merit of the intended application for judicial review of the Board’s decision.

Merits of the intended application

18.In the present case, the Applicant’s non-refoulement claim was based on her fear that she would be harmed or even killed by her mother-in-law as well as her fear of going back to jail.  She specifically complained that the prison conditions in Uganda are very poor.  In particular, when she was remanded in jail before she obtained bail, she was forced to work from the morning until very late at night; she was only given food once a day; and she had no bed but to sleep over a thin mat on the floor.  Treatment of prisoners which denies the most basic needs of human beings or far below minimal standards for the protection of human dignity may amount to torture or CIDTP under BOR 3, which is an absolute and non-derogable right protected by the Hong Kong Bill of Rights Ordinance.

19.At paragraph 28 of the Board’s decision, the adjudicator found that the level of her fear of being killed by the mother and the elder brother of her late husband is low, and the feared ill-treatment is unlikely to materialize.  The Board also referred to the availability of state protection and that internal relocation alternatives are available to the Applicant.  On the flimsy evidence in relation to the threat by her mother-in-law, the finding of low-risk of harm at the hands of the mother and brother of her late husband cannot be faulted.

20.However, it appears that the Board’s decision only or mainly focused on the harm at the hands of the mother and brother of the Applicant’s late husband.  It did not refer to the prison conditions as a factor to consider the Applicant’s perceived harms as a whole.  Despite the complaints of the Applicant about the poor conditions in the prisons of Uganda in her past experience, the Board made no specific finding as to the credibility of her complaints about the prison conditions.  It also made no evaluation or finding whether the prison conditions as she claimed are so poor as to amount to torture, or inhuman treatment or punishment under BOR 3.  At paragraph 37 of the decision, the adjudicator stated that “Her bail condition obviously did not disallow her to leave her country... Therefore her allegation that she jumped bail is without basis.”  Such a finding was based on the fact that the Applicant could leave Uganda without being stopped by Ugandan border authorities.  I cannot agree with the reasoning.  Uganda is not an advanced country.  The border authorities might not be aware of her being prevented from leaving the country as a bail condition. The Applicant claimed that she left her country without the intention of returning to the country to stand trial.  Clearly she has absconded from bail, if her claim is true.  She might face the risk of imprisonment on return either for her jumping bail or upon conviction after trial on the murder charge, if her claim is genuine.  In any event, the finding of the Board as to whether the Applicant jumped bail did not address the issue as to whether the prison conditions in Uganda, in particular in her case and circumstances in the prison(s) she would be sent to, would amount to torture or CIDTP.  It made no finding as to the credibility of her claim about the pending trial for murder and prison conditions.  In my view, it is reasonably arguable that the Board failed to or failed to sufficiently consider the prison conditions issue.  The threshold on arguability test for leave to be granted as laid down in Peter Po Fun Chan v Winnie CW Cheung [2007] 10 HKCFAR 676 has been met.

Disposition

21.For the reasons given, there is good reason to extend the time for making her application.  I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the above ground, and direct that she shall file an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

Dated 18 November 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