Nsambo Macadilu and Others v. Toture Claims Appeal Board/ Non Refoulement Claims Pettion Office

HCAL 2643/2018

[2021] HKCFI 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2643 of 2018

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 Applicants:

Introduction

1.This is the Applicants’ 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 October 2018 (the “Decision”). 

2.The Applicants are Angolan nationals.  The 1^st Applicant is the mother of the 2^nd to 5^th Applicants.  The 1^st Applicant, her husband, their two eldest children, and the 2^nd and 3^rd Applicants arrived in Hong Kong on 3 June 2004.  They were permitted to remain as visitors until 17 June 2004, but over-stayed thereafter.  The 4^th and 5^th Applicants were born in Hong Kong in June 2004 and July 2006 respectively.  The family surrendered to the Immigration Department and made non-refoulement applications at various times. 

3.By the time of the appeal before the Board, the family had stayed in Hong Kong for 14 years.  The 1^st Applicant’s husband disappeared in 2012.  The two eldest children have been granted dependent resident status in Hong Kong after they married local Hong Kong residents.  Both of them have found gainful employment.

4.In due course, their 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 22 August 2016 (the “Notice”) and a Notice of Further Decision dated 18 September 2017, the Director of Immigration (the “Director”) rejected their claims.  Their appeal to the Board against the decisions in the two Notices was dismissed by the Board’s Decision dated 19 October 2018. 

The Applicants’ case

5.The following account of the Applicants’ case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.The Applicants’ case is that the 1^st Applicant and her husband were born in Angola but educated in Democratic Republic of Congo (“DRC”) and their mother tongue is Lingala.  After their marriage in 1985, the husband went to work in Nigeria leaving the 1^st Applicant in DRC until she and the eldest two children join him in 1994.  In January 2003, the family moved to Angola.  Soon after they settled in Angola, they had problem with the Angolan authorities because they did not speak Portuguese which is the official language.  The husband was often beaten up by soldiers because they suspected him and his family were not genuine Angolans.  They also extorted money from him.  On 20 March 2003 (or 20 May 2003 according to the Notice), the 1^st Applicant was gang raped by five to seven soldiers and robbed in their home.

7.The 1^st and 3^rd Applicants then went to live in Nigeria on 26 August 2003.   Life was hard in Nigeria.   The husband went to Lunda Norte in Angola for business leaving the Applicants in Nigeria.  Then, a war broke out in Lunda Norte in April 2004 and the husband returned to Nigeria on 18 May 2004.  Then they came to Hong Kong. 

8.The gist of their ground of appeal is that, if refouled to Angola, their lives would be in danger for they would be discriminated, tortured or killed by the soldiers and security forces in Angola because they do not speak Portuguese.

The finding of the Board

9.The Board found some inconsistencies in the 1^st Applicant’s evidence given before the Board and in her non-refoulement claim form.  In the latter, she said that she was often stopped by police in the street of Luanda and questioned why she did not speak fluent Portuguese and did not have the ‘Bilhete de Indentidade” (the Angolan identity card).  However, at the oral hearing she said that her husband had obtained the Bilhete for her and himself.  The Board also doubted the credibility of her complaint about language discrimination because the Angolan Constitution states that Angola values and promotes the study, teaching and use of other Angolan languages and besides she had eight years’ training in French and was able to pick up English from church activities.  The Board also noted from a report in Agencia Angola Press on 22 September 2010 that the modern trend for Angolans is to learn English.

10.Even accepting her evidence, the Board found it is clear that other than the 1^st Applicant’s ordeal on 20 May 2003, the Applicants’ only source of concern and fear in returning to Angola was the local people’s query of her nationality based on her poor command of Portuguese in the market and streets of Luanda.  The Board therefore assessed the likelihood of the feared harm and risk low after the past 15 years.

11.In addition, the Board also found the Applicants should be able to return to settle in Angola because the country has undergone a great deal of changes to the better over the last 15 years.  As shown in the UNHCR’s website, many Angolans have returned to their home village or town after many years in exile due to civil war in DRC and the governor of Uige province in Angola also appealed for political unity among citizens of the province and the improvement in the justice system.  The Angola government has pledged to provide language classes for Angolans returning from DRC. The 1^st Applicant also confirmed that despite her Angola nationality, she has residence status in DRC. 

12.For these reasons, there was no factual basis for Applicants’ feared harm and risk now and they have failed to prove their claim for non-refoulement protection based on any of the four applicable grounds.

Grounds for judicial review and disposition

13.The Applicants did not put forward any specific grounds in their notice of application for leave to apply for judicial review.  In the course of exploring the Applicants’ grounds of their leave application, the 1^st Applicant said that she understood there is no future for her children to continue staying in Hong Kong and life is difficult for her and her family in Hong Kong.  She now wished return to Angola or DRC with the 2^nd to 5^th Applicants and felt it safe to do so.  She said though her nationality is Angolan, she had right of residence in DRC.  She now feels safe to return to either Angola or DRC, but her preference is to return to DRC.  If she is returned to Angola, she would find her way back to DRC.  The other four Applicants also confirmed their agreement with the 1^st Applicant.  The Court was satisfied that their decision was voluntary.

14.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].  In the absence of any specific grounds of application, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering her application for leave.

15.Having rigorously 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; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicants failed to discharge their burden of proving their fears and risks.   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.  The Decision was utterly without fault.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success in the intended judicial review.  This conclusion was reached on the basis of merit independently of the Applicants’ wishes expressed in the hearing.

Conclusion

16.For the above reasons, leave to apply for judicial review of the Decision of the Board dated 19 October 2018 was refused.

Dated the 25^th 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)