Nkalubo Beatrice Nabisubi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1299/2019

[2024] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1299 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 Applicant being absent 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 9 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Uganda. Her last arrival in Hong Kong was on 29 September 2015 but she did not depart Hong Kong after the stipulated deadline. She surrendered to the Immigration Department on 30 October 2015 and lodged a non-refoulement claim on 22 February 2016 on the basis that she would be harmed or killed by her in-law’s family for the following reasons: (i) as she was forced to marry Ssalongo Ssozi, the younger brother of her late husband; and (ii) due to a land dispute.

5.In short, the applicant claimed that her husband died on 6 May 2014 and her in-laws requested that she marry Ssalongo. Otherwise, she would not be allowed to have the land that belonged to her late husband. She refused and was forced to move back home with her mother. When she rented a shop to begin her business of selling handbags, her in-laws would visit her shop to demand money. She was unable to continue her business. In respect of the land, she made a caveat in the government authorities in order to establish her ownership of it. However, this caused great upset to her in-laws and they vandalized her home. She attempted to file a report at the police station but was declined, which she believed, was due to a bribe from the in-laws. In the end, the caveat was removed due to a local custom law. In fear that she would be located and killed, the applicant made arrangements to leave Uganda. Details of her claim are set out at [6] of the Notice of Decision dated 18 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the ill-treatment, whether physical or mental, inflicted by the in-laws against the applicant did not attain the minimum level of severity, as there was never any physical harm in the first place [15]; (ii) the in-laws in fact did not make any threats forcing her to marry Ssalongo [16]; (iii) her conduct of arriving in China and not seeking asylum immediately was inconsistent with someone who has a genuine fear of being refouled [18]; (iv) state protection would be available to her [19]; and (iii) internal relocation was a viable alternative [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 January 2019, the Board conducted an oral hearing for her appeal, during which she gave evidence with the assistance of an interpreter [18].

9.The Board recapped the applicant’s claim and the procedural background of her case [1] – [39]. The Board further tested extensively the veracity of her claim, spanning some 12 pages discussing its findings and reasons [65] – [120]. In essence, the Board was willing to accept the majority of the factual background of the applicant’s claim, ie she had suffered the loss of her husband, the denied inheritance of her late husband, and the harassment of her business from members of her late husband’s family [115]. However, the Board was not satisfied that she continued to face serious physical or mental harm by her in-laws, or anyone else as the evidence indicated there was no longer any ongoing motivation or intention to cause her harm [116]. The Board found that she was in general a consistent and reliable witness and there was no sign that she was embellishing or exaggerating her claims [94]. Nevertheless, the Board did not find the harassment from the in-laws would continue if she returned to Uganda as she had already relinquished most of the properties to them [102]; and whilst there was a judicial avenue to seek recourse against the denied inheritance, this did not give rise to the risk of harm if refouled [105].

10.In assessing the relevant grounds of non-refoulement protection, the Board found, on the basis of objective and credible COI, state protection was adequate [121] – [123] and internal relocation was not unduly harsh or unreasonable [124] – [127]. In relation to the other relevant risk of harm (Persecution, BOR 2 and 3 and Torture), the Board found she had failed to substantiate each of the said risk [128] – [131].

11.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

13.The applicant filed an Affirmation on 16 August 2023 applying to withdraw her application because her mother had contracted cancer and she wants to return to her as soon as possible.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The Board had, for the reasons given in paragraphs 9 & 10 above, found that the applicant is not subjected to any of the applicable risks in support of her claim and further, she would have state protection and internal relocation option if she returns to her country. There is no valid ground from the applicant to challenge the Board’s Decision.

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

19.Although the applicant now applies to withdraw her application, I consider the merits of her claim should be considered as well, lest she may change her mind to restore her application at a later stage.

CONCLUSION

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

Dated the 6^th day of March 2024

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