Twinamatsiko Joshua v. Torture Claims Appeal Board

HCAL 1574/2019

[2024] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1574 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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Uganda who arrived in Hong Kong on 5 January 2011 as a visitor with permission to remain as such up to 4 February 2011 when he did not depart and instead overstayed, and more than 8 months later on 24 October 2011 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Uganda he would be harmed or killed by the Ugandan military or its unit known as Uganda People’s Defence Force (“UPDF”) for being a deserter from the force. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kashari of Rubindi, Uganda. After leaving school he joined UPDF as a junior recruit in 1998 and later became a private, and had participated in various military actions in the northern regions of Uganda as well as in Congo and Sudan to fight rebels.

3.In 2008 he was offered a job by a sergeant to earn more money by working as a private contractor for some security firm to provide protection and escort for civilian convoys in Iraq for several months, and for which he was able to earn US$30,000 which were much higher than his remunerations for his service at UPDF.

4.Upon returning to Uganda and with the money he earned in Iraq, the Applicant in 2010 planned to leave UPDF and to go into private business, but he was offered another job by the same sergeant for some private security firm for work in Somalia but which he decided not to be involved by instead leaving Uganda on 22 December 2010 for China, and when he was later informed by his mother that UPDF had sent men to his home looking for him, he feared that he and his family would be harmed and therefore arranged for his family to flee to Rwanda while he himself in January 2011 travelled to Hong Kong where he subsequently overstayed and later raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 April 2015 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 1 June 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 doubted the credibility of his claim of fear of being pursued or harmed by UPDF due to material inconsistencies discrepancies and implausibility in his evidence submitted for his claim and which were inconsistent to the relevant Country of Origin Information (“COI”) regarding UPDF in Uganda that it doubted his claim of being wanted or pursued by the Ugandan military or UPDF as a deserter as alleged, that even if such risk were real upon his return to Uganda that it was assessed as low due to the absence of or low intensity and frequency of past ill-treatment from UPDF or any evidence that he is being pursued by UPDF or the Ugandan military as a deserter and given that he was able to leave the country without any difficulty, that even if he were indeed wanted by UPDF as a deserter that he would be entitled to due process and legal representation for the offence under a fair trial and at worst to serve a jail sentence if convicted according to the law without any evidence of any risk of being tortured or killed that he would be regarded as just a fugitive not entitled to non-refoulement protection, that state or police protection would be available to the Applicant if resorted to from any harm not related to the Ugandan government, and that reliable and objective COI also show that reasonable internal relocation alternatives are available in Uganda with a large population of 37 million people spread across a vast territory of more than 240,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Gulu and Jinja where it would be difficult if not impossible for anyone to locate him.

7.On 19 June 2017 the Director on his own initiative again invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and after receiving additional information and submissions from his lawyer, the Director by a Notice of Further Decision dated 7 July 2017 also rejected the Applicant’s non-refoulement claim under BOR 2 risk upon finding the facts of his claim even based on his own case did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Uganda.

8.By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, with the notice of his appeal filed on 16 June 2016, and for which he attended 3 oral hearings on 7 March 2018, 10 July 2018 and 13 November 2018 before the Board with his lawyer from DLS during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions by his lawyer on his behalf. On 23 May 2019 his appeal was dismissed by the Board on all the applicable grounds which also confirmed both decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of having served in the Ugandan military or UPDF in the past but found material inconsistencies discrepancies and contradictions in his evidence of being wanted or pursued by UPDF for having deserted UPDF or the Ugandan military and considered him to be a thoroughly dishonest witness that it rejected his claim of fear of harm from the UPDF or the Ugandan military or authority that caused him to leave his country to come to Hong Kong for protection as fabrications, that there were no reliable evidence that he was a deserter of UPDF or the Ugandan military when he left Uganda or that he was being so pursued by the Ugandan authorities as alleged, and that his credibility was further undermined by his failure to raise his non-refoulement claim upon first arising in Hong Kong until more than 8 months later that it concluded that he had failed to establish that he has any well-founded fear of being subjected to torture or ill-treatment or persecution or that he would face any genuine and substantial risk of such harm upon his return to Uganda that his claim for non-refoulement protection failed on all the applicable grounds.

10.On 10 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim of fear of harm from the Ugandan militaries as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 his 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 Board rejected his claim essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 60 – 141 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but 3 hearings and with submissions from his lawyer from DLS as well as with very careful consideration of all his submitted documentary evidence and the relevant COI in particularly as to the then situation of Ugandan men being attracted to work for private security firms in Iraq following the US invasion and occupation there due to much higher levels of remunerations than from the Ugandan militaries including UPDF to arrive at its correct conclusion that the Applicant joined such security service only after having left his military service at UPDF that he was not its deserter when he left the country and hence the Board was entitled to find that he was not at any such risk of being wanted by the Ugandan military or authorities, and in the absence of any error of law or judicial unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge such findings of the Board.

13.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.

14.For all these given reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and dismiss his leave application.

Dated the 2^nd day of May 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