Monpe Janet v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2454/2020

[2021] HKCFI 1766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2454 of 2020

BETWEEN

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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 November 2020 (the “Decision”).  

2.The Applicant is a Ugandan national.  She used to be a frequent traveller to the Mainland via Hong Kong.  She last arrived Hong Kong on 29 July 2012 and was permitted to remain as a visitor until 28 August 2012.  She was arrested for an offence in trafficking in dangerous drugs at the airport.  She was subsequently convicted of the offence and sentenced to imprisonment for 12 years and 4 months.   On 7 March 2018, she applied for a non-refoulement protection claiming that she will be harmed or killed by a drug dealer if returned to Uganda.

3.In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 27 September 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  On 10 October 2018, she lodged an appeal to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board on 19 November 2020.  On 17 December 2020, she applied for leave to apply for judicial review against the Decision of the Board.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service and incontrovertible evidence. 

5.The Applicant is a single-mother with three children.  She operated a grocery store in Najjanankumbi, but her business failed.  She borrowed two million Uganda shillings from a bank to pay for her living expenses.  She agreed with a Nigerian man (the “Drug Dealer”) to courier dangerous drugs to Hong Kong to earn money to repay her loan and to provide for the daily expenses for herself and her children.  She was arrested for trafficking in July 2012 and sentenced to imprisonment.  When she left Uganda for Hong Kong in 2012, her family and her sister moved from Najjanankumbi to Gulu, which was six hours away by car.

6.The Applicant claimed that she received a letter from her sister dated 5 June 2018 telling her that the Drug Dealer had been searching for her and demanding repayment of the money he had paid to cover her debts and her travel to Hong Kong; and threatened to kill her if she returned to Uganda and did not repay.

The finding of the Board

7.The Board accepted the Applicant’s evidence as to the central issues regarding her claims except the Drug Dealer’s threats.  The Board considered that she only offered vague speculation as to why the Drug Dealer would continue to pose a serious threat to her some eight years after her departure from Uganda.  Her dealings with the Drug Dealer took place in Najjanankumbi, but her children and her sister had moved to Gulu.  The Applicant said that the Drug Dealer knew where she came from, suggesting that he could locate her wherever she would be in Uganda; but that could not explain why he would have failed to search for her in Gulu during the last eight years if he was truly searching for her as claimed. While accepting the Country of Origin Information that drug trafficking has been a problem in Uganda, the Board found no information which suggests that convicted drug couriers after completing their sentences face violence from their drug dealers on their return to the country.  Accordingly, the Board rejected the Applicant’s fear as not being genuine but her speculation only. On that finding, there is no factual basis to support the Applicant’s claims for non-refoulement protection on any of the four applicable grounds.

Grounds for judicial review

8.The Applicant did not state the grounds in her notice application for leave to apply for judicial review (Form 86).  In her supporting affidavit dated 17 December 2020, she wrote:

“Affirmation for leave to apply for judicial review for my non-refoulement claim decision again. The Director of Immigration date final.”

9.On 12 April 2021, the Applicant wrote from Castle Peak Bay Immigration Centre informing the Court that she had finished all the USM procedures and received is waiting for a letter from the Court in order to process her release from detention.  It appeared that she has served or about to complete her term of imprisonment for the drug offence and would be due to be released soon.  Thus the Court expedited her application for leave to apply for judicial review.  By letter dated 9 June 2021, the Court invited her to file submission to support her application within 14 days of the date of the letter.

10.In response, the Applicant wrote on 15 June 2021 saying that she had submitted all documents she was able to produce to support her case.  She asked to be allowed to stay in Hong Kong and repeated her fear for her safety if she should be refouled.  She advanced no specific grounds for her application for leave to apply for judicial review.

11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

12.Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board accepted her evidence that she had an agreement with the Drug Dealer to traffic in dangerous drugs and was arrested and sentenced to imprisonment.  But the Board found her allegation of threat and harm from the Drug Dealer eight years after her departure from Uganda vague and speculative.  There was no evidence that the Drug Dealer was looking for her in Gulu or that there is any reason why he would do so.  The Board gave full reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There were no such elements in the Decision.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in her proposed judicial review.

Conclusion

13.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated the 21^st day of June 2021

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)