Ssali Mukasa Abubaker v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1686/2019

[2024] HKCFI 3048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1686 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 January 2018 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”).  This application is late.  Time for the applicant to file Form 86 expired on 5 April 2019.  Form 86 was filed on 19 June 2019, which is more than 2 months late.

2.The applicant asked for a hearing. However, he was absent at the hearing on 23 October 2024.  I shall deal with his application 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, aged 33.  He last entered Hong Kong as a visitor on 26 October 2010.  He overstayed since 26 November 2010.  He was arrested.  A removal order was issued on 15 December 2010.  On 25 November 2015, he was convicted of an offence of possessing a forged identity card and was convicted and sentenced to 12 months imprisonment.  By way of a written representation dated 20 December 2010, he lodged his non-refoulement claim on the basis that, if refouled, he will be harmed or killed by members of the Lord’s Resistance Army (“LRA”)  and he is also in fear of being trafficked by the LRA members to other area as a slave.

5.According to the applicant, his father was a member of LRA, which is a terrorists group, which the government of Uganda bans.  They will kidnap people, torture them, or sell them as cheap labour or sex slaves to other places.  His father passed away.  He lived with his uncle.  Between 2003 and 2007, LRA people came to his uncle’s house to look for him.  They demanded his uncle to tell them his whereabouts.  His uncle was afraid of them and, together with him and his cousin, they moved to live in Mawange.  However, the LRA people traced them to Mawange.  They moved to Konge, where they stayed for about 3 years.  During this period of time, his uncle received phone calls of threats, demanding his whereabouts.  His uncle changed his phone number, but he still received the threat calls.  Upon his uncle’s advice, he left Uganda for Hong Kong in October 2010.

6.He does not believe that the police in Uganda will help him.  Nor does he believe internal relocation will help, as the LRA will find him as his uncle had moved to another place where they could still locate him.

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director finds that (i)  the absence or low intensity and frequency of post ill-treatment by the members of the LRA is indicative of low future risk upon his return; therefore his fear of being harm is only speculative [18]-22]; (ii)  state protection will be available to him [23]-[25]; and (iii)  internal relocation is viable [26]-[29].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 6 November 2017, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board had made the following observations and findings:

“39. Importantly, the Board had the opportunity to observe the Appellant give evidence at the recent hearing, during which it was able to question him about his claims and test his reliability as a witness.

40. For a number of reasons discussed below, the Board had concerns about the reliability of his evidence in support of his claims, as his evidence about a number of aspects of his claims was confused and inconsistent over time and far from convincing.

53. For all of the above reasons, the Board has reached the view that the Appellant was an unreliable witness, and accordingly, it has no confidence in accepting, and does not accept, that his evidence about what occurred to him in Uganda was based on his personal or actual experiences, and considers it was fabricated to create a claim to be owed protection.”

11.The Board therefore rejected his claim on torture [57]-[64]; BOR 3 risk [65]-71]; Persecution risk [72]-76]; and BOR 2 risk [77]-[78].  It dismissed the applicant’s appeal.

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

12.The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

14.As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted.  I shall consider the merits of the applicant’s case.

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

17.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.”

18.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

19.There is no reason that the Court should interfere with the Board’s finding of the facts.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.