Atukunda Grace Flavia v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 265 /2020

[2021] HKCA 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2020

(ON APPEAL FROM HCAL NO 336 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Campbell-Moffat J on 30 June 2020^[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim. This appeal is dealt with on paper without an oral hearing because of the applicant’s failure to comply with the direction of the Registrar of Civil Appeals to lodge a skeleton argument within time as mentioned below.

2.The applicant is a national of Uganda.  She is 41 years old.  She came to Hong Kong on 14 March 2013 as a visitor.  She overstayed and lodged a non-refoulement claim on 5 April 2013.  She was arrested by the police on 2 May 2013 for overstaying.  Her claim was made on the basis that she would be harmed or killed by a lady called Nansubuga Doreen Kabalega (“Doreen”), Doreen’s husband, the applicant's ex-husband and the resident district commissioner if she is to be returned to Uganda.

The Director’s decisions

3.By a Notice of Decision dated 23 August 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.The Director found that there are grave credibility issues on the applicant's case.  Taking into account the extent of past physical harm as well as the frequency and intensity of the ill-treatment made by Doreen, the Director considered that the ill-treatment did not attain the requisite minimum level of severity.  The Director found that there is no substantial ground to believe that there is any genuine and substantial risk of the applicant being subjected to ill-treatment upon her return to Uganda.  The alleged problem has nothing to do with the Ugandan government or authorities.  Moreover, the Director also considered that the availability of state protection and internal relocation option further lowers or negates the perceived risk of harm.

5.By a Notice of Further Decision dated 26 July 2017, the Director rejected the applicant’s claim in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk.^[5]

The Board’s decision

6.The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 14 November 2017.  Due to the significant discrepancies in the applicant's evidence, the Board found that she had fabricated her claims.  The Board was not satisfied that the applicant will face a real risk of harm from any person upon her return to Uganda.  Thus, the Board held that the applicant is not entitled to non‑refoulement protection on any of the applicable grounds under the unified screening mechanism and rejected the appeal on 12 January 2018. 

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 5 May 2018 to seek leave to apply for judicial review against the decision of the Board.  She did not put forward any grounds for her intended challenge.

The judge’s decision

8.The judge dealt with the leave application on the papers without an oral hearing as the applicant had not requested for an oral hearing in her application.  The judge held that there is no error of law or procedure on the part of the adjudicator. There is also no evidence of procedural unfairness or failure to adhere to a high standard of fairness.  Therefore, the judge held that the applicant's intended judicial review does not have a realistic prospect of success and dismissed the leave application on 30 June 2020.

The grounds of appeal

9.The applicant stated the following grounds of appeal in the notice of appeal:

(1)     the decision is substantially unfair;

(2)     the judge considered her application on the papers and did not provide her with an opportunity for an oral hearing.

Non-compliance with order for lodging a skeleton argument

10.Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  

11.The appeal was scheduled to be heard on 5 January 2021.  The applicant failed to lodge a skeleton argument on or before the deadline of 8 December 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By a letter dated 9 December 2020, the court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

12.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.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.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

14.In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.Pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), the judge may determine the application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application (ie Form 86).  In the present case, the applicant did not request an oral hearing in her Form 86 or supporting affirmation.  The judge’s decision to deal with the leave application on paper is consistent with the rules and is justified.  Her complaint of lack of oral hearing is without merit.

16.The applicant did not provide any further elaboration, particulars or evidence in support of her contention regarding the alleged unfairness of the judge's decision.  She failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in the decision.

17.For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss this appeal.

The Applicant (Appellant), acting in person