Namubiru Zulaika v. Torture Claims Appeal Board

HCAL 3896/2019

[2022] HKCFI 2396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3896 of 2019

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Uganda who last arrived in Hong Kong on 18 July 2018 as a visitor with permission to remain up to 17 August 2018 when she did not depart and instead overstayed, and on 20 August 2018 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Uganda she would be harmed or killed by the family of her former employer who blamed her for his death. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kampara City, Uganda. After leaving school she worked in a garment company as a merchandiser sourcing materials from China for her employer.

3.In February 2018 she wanted to start her own garment business but had a heated argument with her employer over some monetary matter during which her employer threatened to call the police against her that she left her former employment on bad terms, but thereafter the police had never looked for her over any complaint from her former employer.

4.On 13 March 2018 she departed Uganda for China for her own business, during which she was informed by her brother in Uganda that her former employer had been kidnapped by some unknown men for ransom.

5.Later when she travelled to Hong Kong on 18 July 2018, she was informed by her brother that her former employer had been killed by his kidnappers, but for which his family somehow blamed the Applicant and had sworn to kill her in revenge, and so she was afraid to return to Uganda and therefore overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 February 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 7 March 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by the family of her former employer upon her return to Uganda due to the absence of any past ill-treatment from them, that there is no reliable evidence of any threats from them other than hearsays and groundless speculations, that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Uganda, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Uganda with a large population of 40 million people spread across a vast territory of more than 241,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Gulu where it would be difficult if not impossible for anyone to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on before the Board during which she declined to give any further oral evidence but did answer questions raised of her claim by the Adjudicator for the Board. On 13 December 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no reliable evidence of any threats from the family of the Applicant’s former employer against her other than hearsay and groundless speculations that it doubted the credibility of her claim, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Uganda as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 31 December 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just repeated her claim of fear of being killed if refouled to her home country but without putting forth any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Uganda, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.Furthermore, the Applicant recently on 4 July 2022 filed an affirmation requesting to withdraw her application as all her problems have been resolved and that she wants to return to her home country as soon as possible.

15.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that she no longer has any problem returning to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of August 2022.

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