Nabushuwu Gertrude v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 801/2019

[2023] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 801 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. She appeared before the Court on 28 November 2022.

The applicant

3.The applicant is a national of Uganda.  She entered Hong Kong on 21 January 2016 and was permitted to stay as a visitor until 20 February 2016. However, she did not depart and had overstayed since 21 February 2016.  On 22 February 2016, she surrendered to the Immigration Department.  On 1 April 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her uncles, Nakasala Wazsilomo and Muzuuma Wilson, due to a land dispute.

4.In brevity, the applicant’s father inherited the disputed land from her grandfather.  It was said that the disputed land was the most valuable one in her grandfather’s estate.  Her uncles were not satisfied with the distribution and often came to her house to quarrel with her father.  Prior to her father’s death in October 2015, they did not reach a solution to the land dispute. After her father passed away, her uncles started to harass and assault her mother and her.  In December 2015, her uncles attempted to trick the applicant into signing some documents in relation to the land.  The applicant refused. Her uncles were furious and posed death threats.  Out of fear, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) the past ill-treatments failed to attain a minimum level of severity [12]; (ii) her uncles had shown no intention to cause harm or even kill her [13]; (iii) state protection would be available to her [14]-[16]; and (iv) internal relocation was a viable option [17].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 16 January 2019, the Board conducted an oral hearing for her appeal, during which she answered the inquiries from the Board [54]. 

8.The Board considered the country of origin information (“COI”) [29]-[39].  It proceeded to consider the applicant’s oral evidence.  In particular, the Board noted that the applicant conceded that the claim was based on her own assertions [54(i)]; that she added a new information that she was raped by her uncles [54(vi)]; and that nothing eventful happened, other than threatening phone calls, during her stay in her friend’s place [54(vii)].

9.Having assessed the evidence, the Board found that the applicant’s claim was based on mere assertions; that it was implausible that her uncles could get the disputed land from her via violent means; that there was no evidence of police inaction; that the threats from her uncles, if any, were localized; that her new claim of being raped was not credible; that there was no state involvement; and that state protection and internal relocation were both available according to the COI [56]-[71].  In passing, the Board also found that the applicant’s claim lacked credibility [72]-[73].

10.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said the hearing bundle was served late and she was not invited to submit written submissions. Also, the Board had relied on the source of news which is not officially recognized or it is simply hearsay. Some cases on which the Board relied on are outdated. The lack of credible source of information has resulted in the Board making groundless speculations that it is safe for her to return to her country.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that her situation remains the same. She had been tortured and raped as she had told the Director and the Board.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI 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.”

16.The grounds in paragraph 12 above are only her opinions without any evidence in support. Her submission that she was tortured and raped was rejected by the Board. She did not apply for an adjournment for preparation of her case before the Board. She has not said in what aspects she was prejudiced by the late delivery of the hearing bundle. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 10^th day of February 2023.

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