Kalembe Sarah v. Torture Claims Appeal Board

HCAL 11/2019

[2023] HKCFI 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 11 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Uganda who last arrived in Hong Kong on 5 August 2011 as a visitor with permission to remain up to 4 September 2011 but was arrested by police on 12 August 2011 for soliciting for an immoral purpose and breach of condition of stay for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge and was referred to the Immigration Department for deportation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Uganda she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kampala District, Uganda where she cohabited with her boyfriend.

3.In April 2010 she became pregnant and borrowed a loan from her friend for her needs as well as those of her siblings upon the death of her mother, to be repaid by the end of the year upon the return of her boyfriend.

4.However, when her boyfriend failed to return to her or to assist her in repaying her loan, and when her creditor started to threaten her for the repayment, the Applicant fled to other districts such as Iganga and Junja, and in 2011 she departed Uganda for China, and from there she later travelled to Hong Kong where she was arrested by police for soliciting for immoral purpose, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 June 2017 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer due to various alleged health or medical reasons.

5.By a Notice of Decision dated 4 October 2017 the Director of Immigration (“The 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Uganda as low due to the absence of or low intensity and frequency of past ill-treatment from her, that there is no evidence of any real intention of her creditor to seriously harm or kill her, that in any event it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 39 million people spread across a vast territory of more than 197,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult 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 her creditor to locate her.

7.On 18 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 23 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor over her outstanding debts but found that it was a private monetary 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 by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.On 3 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Applicant was not given an opportunity to put forward her submissions in an oral hearing nor she invited to submit written submissions to reply to the representations of the Director;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in the groundless speculations that it is safe for her to return to her home country.

10.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the Adjudicator had acted procedurally unfair or reasonable, or what COI were unofficially recognized or were hearsay or outdated, while it is clearly wrong for her to complaint of not being provided an oral hearing for her appeal or was not given any opportunity to make her submissions when in fact she did attend an oral hearing on 23 August 2018 before the Board during which she was able to make her representation and submissions without any problem.

11.As such and as the Applicant also failed to attend the hearing of her application without any explanation, I do not find any of these grounds of the Applicant reasonably arguable for her intended challenge, 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 merits in her intended application either.

12.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.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.

14.In the premises and 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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 3^rd day of April 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