HCAL 1709/2021
[2024] HKCFI 483
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1709 OF 2021
_____________
BETWEEN
| Atukunda Grace Flavia | Applicant |
| and | |
| Director of Immigration | Putative Respondent |
_____________
| Before: | Deputy High Court Judge K.W. Lung in Chambers |
| Date of Decision: | 5 March 2024 |
_____________
D E C I S I O N
_____________
The application
1. The applicant’s first application for leave to apply for judicial review of the Director’s decision rejecting her first application for subsequent claim was before this Court and was dismissed with a Restrictive Proceedings Order (“RPO”). Under the RPO, the applicant has to apply for leave for filing fresh application on the same facts of the case.
2. The applicant had made a second application for subsequent claim. Her second application was rejected by the Director by Notice of Decision dated 11 May 2023 (“the Director’s Decision”). This is her application for leave to file Form 86 to apply for leave to apply for judicial review of the Director’s Decision. Also, the applicant’s application for leave for judicial review of the Director’s Decision is late and she applies for extension of time to file Form 86 if leave is granted.
3. The applicant is legally represented by Messrs. Patricia Ho, solicitors instructing counsel, Mr. Jonathan Kwok. Counsel prepared the Grounds in support of the draft Form 86 for judicial review of the Director’s Decision, the same grounds for leave to appeal for filing Form 86 under the RPO. I shall first consider the leave application under the RPO.
4. The applicant’s solicitor had informed the Department of Justice of this application and asked it if it has any objection against the application. The Department of Justice replied,
“…please be informed that the Director does not intend to make any written representations regarding the Intended Application.”
5. In my view, the stance of the Department of Justice only shows that they are not in a position to render any assistance to the Court. It remains for this Court to consider the merits of the application in order to determine whether leave should be granted to the applicant to file its Form 86 for leave to apply for judicial review of the Director’s Decision notwithstanding the RPO. Also, the applicant’s application for leave to apply for leave for judicial review of the Director’s Decision is out of time. This issue will be discussed below.
6. Under the RPO, paragraph 5 provides that this application should be dealt with by the court on paper and without any oral hearing unless this Court should otherwise direct. There is no application for a hearing of the leave application under the RPO. I have decided that the application should be dealt with on paper without any oral hearing.
The background
7. According to the Director’s Decision, after the applicant’s first application for judicial review of the Director’s Notice of Decision dated 26 October 2021 was dismissed with the RPO imposed upon her, the applicant made her second attempt to apply for subsequent claim before the Director. She was legally represented by the Duty Lawyers Scheme. Through her legal representative, she obtained 3 extensions of time to collect documentary evidence to support her application as the Board, in her previous claim, had commented that there was no documentary evidence in support the facts of her claim. [7]
8. The factual basis of her claim is that, if refouled, she will be harmed or killed by Doreen and her husband, her ex-husband, the Resident District Commissioner (“RDC”), the local councils, the bank and the authorities acting upon Doreen because Doreen did not want her to be a witness on the false stamps that she had used and her lands were taken by the banks. These reasons are the same in her previous claim. [10]
The Director’s findings of the facts
9. The immigration officer relied upon the Board’s Decision dated 12 January 2018, which dismissed her appeal on her previous claim where the Board found that the applicant’s evidence was not reliable as there were numerous inconsistencies, omissions and discrepancies. [10(h)-(u)]. In particular, the Board found that the applicant manufactured her entire claim regarding false documents, the loans and all the past incidents in an attempt to prolong her stay in Hong Kong. [10(r)]
10. The immigration officer in charge of the second application for subsequent claim had considered the additional materials submitted in support of her application in detail. See paragraph 14 of the Director’s Decision. The immigration officer had also considered the submissions of duty lawyer acting for the applicant. [15]-[17]
11. The immigration officer said that the applicant relies on the same set of facts mentioned in her previous claim, but she was unable to support the facts with documentary evidence. [20]
12. The immigration officer further said that the applicant relies on many assertions, which are not supported by sufficient and credible evidence. [21]
13. The immigration officer then considered internal relocation and found that it is viable to lower or negate her perceived risk from her enemies upon her return to Uganda. [23]-[25]
14. The immigration officer had considered the issue of state protection in Uganda by reference to the country of origin information (“COI”) and concluded that Uganda government is able to provide protection for the applicant, quite apart from other non-government organizations. [26]-[36].
15. The immigration officer found that the applicant’s fear of her husband harming her daughter Pearl is misconceived. [38]
The immigration officer’s consideration of the duty lawyer’s submissions
16. The duty lawyer submitted that the applicant’s credibility was affected by her mental state when she appeared before the Board in the previous claim. This amounts to challenging the Board’s finding of the facts of the case in the previous claim. However, the immigration officer took the view that the Board had taken into account her mental state factors when it made the Board’s Decision. The immigration officer considered that, for the second application for her subsequent claim, it was not necessary to have a mental health assessment for the applicant. [39]-[41].
17. In relation to the duty lawyer’s suggestion that the applicant should be considered as a potential victim of trafficking, the immigration officer, having considered the evidence before him, found:
“44. … … There is no sufficient and credible evidence to indicate that the trafficking condition in Uganda is such that it would give rise to a real risk of harm to you and Pearl if you return to Uganda.”
The immigration officer’s conclusion
18. Having considered all the evidence and legal submissions, the immigration officer concluded that the applicant is relying on the same facts and reasons in her previous claim in support of her second subsequent claim application. The immigration officer further found that the applicant failed to show that there has been a significant change of circumstances since her previous claim was finally determined, and the change, when taken together with the materials previously submitted in support of her previous claim, would give the second subsequent claim a realistic prospect of success. On this basis, the immigration officer rejected her application. [45]-[47].
The grounds of review
19. Counsel for the applicant has submitted 3 grounds:
(1) error of law in assessment of evidence;
(2) medical evidence; and
(3) failure to address state acquiescence.
Ground (1): error of law
20. Counsel submitted that the Director erred in assessing the additional materials in accordance with the legal principles in assessing whether sufficient evidence has been provided to demonstrate a significant change of circumstances.
21. Under this ground, counsel has raised 4 issues. They are discussed in the same order below.
22. Before coming to the issues, I shall first state the relevant general legal principles for the present application.
23. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to the Director’s Decision on the applicant’s second application for subsequent claim. The Court will not usurp the fact-finding power vested in the Director. 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).
24. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.
25. 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.”
26. Counsel submitted that the immigration officer remained concerned that the applicant failed to produce documentary evidence of her loan she had taken out and he had also relied on the Board’s findings on credibility without coming to his own assessment; that he completely ignored the evidential value of the statements given by Akosah, Trevor, Marshall, Prettiny and Patience; that he ignored the weight of such evidence, relying on commons sense and ‘inherent improbability’, which is an error; and the Director was in error on the legal requirement whether sufficient evidence has been presented in support of a claim of significant change of circumstances. Counsel further submitted that the legal requirement is that the applicant only has to provide sufficient evidence in writing, meaning that if the additional documents themselves disclosed a significant change of circumstances, they alone could be capable of supporting such a finding.
27. Section 37 ZO of the Ordinance provides for subsequent claim application:
“37ZO.
Limitation on subsequent claim
(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.
(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—
(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and
(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.
(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.
(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”
28. On a proper analysis of the Director’s Decision, it is clear that the immigration officer had taken into account the following evidence:
a. the applicant’s statement dated 17 June 2022 to the Immigration Department, in which she had set out all the facts in support of her second application for subsequent claim [11];
b. the statements and other documents enclosed with the applicant’s statement, including a statement by Akosah, a copy of police report, Good Luck Medical Centre Laboratory Request Forms and Out-Patient Forms respectively dated 30 April 2022 and 17 May 2022, a copy of email from Patience etc. [12];
c. the applicant’s further statement dated 9 March 2023, containing further facts in support of her application [14];
d. her duty lawyer’s letter dated 10 March 2023 referring to the medical evidence affecting her mental state when she appeared before the Board in her previous claim and suggestion of the issue of human trafficking [15];
e. her duty lawyer’s another letter dated 10 March 2023 of 20 pages, which provided a legal analysis of the applicant’s case on the facts, highlighting that multiple changes in circumstances having arisen since her previous claim was determined [16];
f. 2 letters both dated 23 March 2023 from the applicant’s duty lawyer with 4 statements respectively from Trevor, Patience, Prettiny and Marshall [17].
29. Having considered the above evidence, the immigration officer gave his reasons for his decision as stated in the Director’s Decision:
“18. All the available information/supporting documents provided have been carefully considered and due weight has been attached to all the letters, statements and supporting documents provided by you, your family, DLS and the assigned Duty Lawyers in the consideration of your Request. It is observed that you continue to be in fear of being harmed and killed by Doreen and her husband, your ex-husband, and the people of the Local Council in Lugonje, Entebbe, Wakiso District (collectively as “enemies”) upon return to Uganda.
19. …The Board also viewed that you manufacture your entire claim regarding false documents, the loans and all the past incidents in an attempt to prolong your stay in Hong Kong. (see paragraph 10(j) and (r) above). In your Request, you continue to allege that your enemies are still attempting to harm or even kill you upon your return to Uganda due to your knowledge about the illegal money lending practices of Doreen.
20. … In your current Request, you repeat events of similar nature and pattern when you claimed that you had sent Akosah and your children to visit the Local Council in Lugonjo, Entebbe, Wakiso District in 2020 to obtain documents in support of your claim and they eventually failed and got threatened and assaulted. It is considered not unreasonable to find these newly claimed events similar to what you previously mentioned in the NCF, the second interview in 2016 and the hearing in 2017. In any event, the fact is that you still could not specify what documents you intended to obtain from the Local Council or explain why it would require people to approach the Local Council for documents in support of your claim. As at present, no documentary evidence, such as loan documents or a copy of the land purchase agreement, has been provided to support the existence of the loan that Doreen helped you to obtain. Therefore, the fact remains that you still could not satisfactorily explain why you could not provide any loan documents to support the basis of your claim and Request while you continue to rely on the same set of facts mentioned in your previous claim.
21. Furthermore, it is found that you have relied upon many assertions which are not supported by sufficient and credible evidence in your Request. For example, … … .
22. After all, the fact is that you have been absent from Uganda for more than 10 years. In spite of your allegation that your enemies previously believed you were dead but later learned that you are still alive due to Akosah’s visit to the Local Council in Entebbe in March 2020 (which subsequently led to the threatening notes sent to your daughters and the abduction and rape of Prettiny in 2022 (see paragraph 14(b), (d) and (z) above)), it is inconceivable that, based on your adduced evidence, your enemies would continue to have such enormous intention to threaten, harm or even kill you and your family after such a long period of time.”
30. Pursuant to section 37ZO(3) of the Ordinance, the Director was entitled to take into account the findings of the Board in the previous claim in relation to the credibility of the applicant in the assessment of her second application for subsequent claim. The Director has given his reasons for his findings. Counsel’s comments do not have any evidence to support. They are therefore general and bare assertions, which do not form valid grounds to challenge the Director’s Decision. 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].”
31. Counsel submitted that the Director had committed an error in law in respect of the legal requirements for establishing significant change of circumstances. Counsel further submitted that the legal requirement is that the applicant has only to provide sufficient evidence in writing, meaning that if the additional documents themselves disclosed a significant change of circumstances, they alone could be capable of supporting such a finding.
32. I have much reservation on this submission.
33. First, section 37 ZO has not provided this is the legal requirement for determining significant change of circumstances, which is, in fact, a finding of the facts of the case. This is clearly within the province of the Director as decided by the Court of Appeal in Re: Kartini , supra. This Court should not interfere such finding of the facts without strong evidence to show that such findings are wrong in law.
34. Second, the suggested approach is inconsistent with section 37ZI of the Ordinance:
“37ZI. Decision on torture claim
(3) A torture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if the claimant were removed or surrendered to a torture risk State.
(4) A torture claim must be rejected in the absence of substantial grounds for the belief referred to in subsection (3). (Amended 7 of 2021 s. 15)
(5) In determining whether there are substantial grounds for the belief referred to in subsection (3), all relevant considerations are to be taken into account, including, where applicable, the following matters in relation to the conditions in the torture risk State—
(a) whether there is a consistent pattern of gross, flagrant or mass violations of human rights in the torture risk State; and
(b) whether there is any region within the torture risk State in which the claimant would not be in danger of being subjected to torture.”
35. “Substantial grounds” referred to in section 37ZI should include the change of circumstances for the consideration of subsequent claim because both refer to the facts, which are the basis for the subsequent claim.
36. The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:
‘176. …the Court should assess the risk at the time of the proceedings, taking account of information … in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.’
37. Sufficient evidence as referred to by counsel, as I understand it, refers to the witnesses’ statements and the medical evidence. It is within the Director’s discretion, as a fact-finder, to determine what weight should be given to the evidence. The Director had considered the documentary evidence, he had rejected some of them. There is no reason to challenge that his discretion was wrongly exercised.
38. As to the comment that the Director had adopted common sense approach in determining the credibility of the applicant’s evidence, the Director did not rely solely on common sense. He passed his comments after he had given his reasons on the credibility of the evidence.
39. This Court has, in I, D & S v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2023] HKCFI 1048, 20 April 2023, held:
“37. … The Court of Appeal’s case on the use of common sense in assessing credibility or plausibility of the 1st applicant’s claim highlights the important issue of adopting commons sense in appropriate circumstances. The Court of Appeal in ST v Betty Kwan and The Secretary for Security and The Director of Immigration [2014] 4 HKLRD 277 held:
‘43. … … In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.’
40. In the present case, the Director had considered the relevant facts of the case. He was quite entitled to apply common sense in respect of the applicant’s evidence under the relevant circumstances. There is nothing Wednesbury unreasonable about the Director’s approach.
41. For the reasons above, ground (1) fails.
Ground 2: medical evidence
42. Counsel submitted that the Director failed to address or address properly the effect of the new medical evidence submitted by the applicant on her credibility. Further or in the alternative, the Director failed to treat the applicant with high standards of fairness in refusing to accord the applicant an opportunity to have her claim determined again under the USM in light of the new medical evidence.
43. The Director had considered the medical evidence. He gave his reasons for not accepting the medical evidence to grant leave to the applicant to make her second subsequent claim at paragraph 41 of the Director’s Decision:
“In any event, with the medical proof titled “Patient Referral Form to the Hospital Authority Specialist Clinic /A & E dated 25 May 2022 issued by the Central Health (see item 1) in paragraph 13 above), your mental condition has been duly noted and taken into consideration of your current Request. It is considered a mental health assessment is unnecessary for the consideration of your current Request as your mental condition is not in dispute with the fresh information provided. Coupled with the fact that you have been provided with PFLA in your current Request, it is considered that you have reasonable and sufficient opportunity to provide evidence in support of your Request and high standards of fairness have been observed.”
44. Clearly, this is an attempt to challenge the Board’s findings in the previous claim. The mental condition the applicant relies upon does not refer to the second subsequent application as the immigration officer rightly said. Otherwise, the applicant cannot invite the immigration officer to consider her statements in support of her second application for subsequent claim. The immigration officer therefore said that the applicant’s mental condition is not in dispute with the fresh information provided. What counsel asks this Court to consider is another opportunity for the applicant to have another assessment by the Director and the Board for her second subsequent claim. This is only possible if the Director grants her leave to make her second subsequent claim.
45. Counsel relies on the decision in Azubuine Solomon Kingsley v Director of Immigration[2023] HKCFI 3160 in support of his argument. DHCJ Bruno Chan granted leave to the applicant in that case for judicial review of the Director’s Decision rejecting the applicant’s subsequent claim application. The Court gave its reasons below:
“38. At this stage perhaps it would suffice just to refer to what the immigration officer recorded of the new medical evidence in the Director’s Decision at [11.12] to highlight the Applicant’s points:
‘(n) It is therefore reasonably arguably that the new medical evidence puts the prior immigration findings into doubt. The medical report above is from 2021. This is 17 years after the assault on you. The new medical evidence therefore highlights the severity of your injuries which have had a long-lasing detrimental effect on you. Substantiated by the above evidence, it is clear that you suffer from significant memory loss. It therefore seems unsurprising that you were not able to remember certain dates, such as your own date of birth and the date of you joined the IPOB.
(o) To conclude, your past inconsistencies in testimony which have been an issue in certifying your credibility could now be explained by your memory issues, evidenced by medical explanation above. This medical evidence puts into doubt the findings of the ImmD and therefore the ImmD should reconsider whether it is safe to arrive at the conclusion that you are to be unsuccessful in your non-refoulement claim.”
46. Against such findings by the immigration officer, it cries out for explanation for the Director still rejected the applicant’s subsequent application. This decision is blatantly Wednesbury unreasonable.
47. This case is clearly different from the Azubuine case. The immigration officer had not made such admission in the Director’s Decision. To say that “the applicant’s mental condition is not in dispute with the fresh information provided” amounts to admission made by the immigration officer as the Azubuine case is twisting the immigration officer’s finding. The immigration officer had never admitted that the Board’s findings of the fact was in doubt.
48. It will be for this Court to consider whether it is unreasonable for the immigration officer not to take into consideration the medical evidence within the context of advanced standards of fairness for the applicant.
49. The Court takes into consideration the following facts for its determination:
a. At paragraph 66 of the Board’s Decision of the previous claim, the Board said:
“I have carefully considered whether the Appellant’s inability to recall her claims, the numerous inconsistencies, omissions, discrepancies and the problematic accounts could be attributed to trauma, memory issues, the passage of time, stress, anxiety or other external factors. I have also considered her claim that she had forgotten a lot of things because she had too many things to think about. However, there is no medical evidence to indicate that her memory was affected by her mental or physical conditions. Also, the Appellant has not provided a satisfactory explanation as to why she was able to recall specific details about her claims in the NCF but not at the hearing. Moreover, I do not consider the inconsistent evidence given at the hearing could be satisfactorily explained by these factors or that she had too many things to think about.”
This clearly shows that the applicant was aware of the medical evidence issue in her previous claim after she received the Board’s Decision dated 12 January 2018.
b. The applicant applied for leave for judicial review of the Board’s Decision of the previous claim in March 2018 before this Court. She did not raise any medical evidence to refute the Board’s findings above. Her application was dismissed by this Court on 30 June 2020. She appealed the Court’s decision to the Court of Appeal and her appeal was dismissed by the Court of Appeal on 6 January 2021. Her Notice of Motion for leave to appeal to the Court of Final Appeal was dismissed by the Court of Final Appeal on 18 May 2021.
c. When the applicant appeared before this Court on 8 February 2022 in her application for leave to apply for judicial review of the Director’s Decision refusing her first application for subsequently claim, she was assisted by 2 ladies from the Hong Kong Dignity Institute. In the hearing, the applicant did not raise any medical issue to challenge the Board’s Decision of her previous claim.
d. Exhibit marked AGF-8 of the applicant’s 2nd affidavit dated 11 January 2024 contains a medical report of the Central Health dated 25 May 2022, prepared by Dr Dianna Cooke with her signature. In this medical report, the most important part on the conditions of the applicant states:
“Grace complains of irritation insomnia, restless sleep with nightmares about her past and ruminating and intrusive memories of the past. She has flashbacks and symptoms of hypervigilance. She feels stressed by her immigration status and complains of low mood with anergia at times on and off since last year. Grace has had a recent onset of auditory hallucinations of a female voice, unknown to her, calling her name in an African accent, usually at night time whilst in bed. On one occasion she heard knocking at the door and thought it was her but when she went down to open the door, there was nobody there. She felt fearful that she will be attacked.”
This medical report only recorded what the applicant told her doctor about her conditions and feelings. There are neither any medical findings nor medical analysis or expert opinions. In my view, it hardly bears any evidential value on the applicant’s mental state at the relevant time.
e. There is no explanation from the applicant as to why she did not disclose her mental state, which she now alleges that it affected her evidence before the Director for her previous claim in June and July 2016 or to the Board at the hearing on 14 November 2017. Also, there is no explanation from the applicant why she did not bring up her medical issues when she applied for leave for judicial review of the Board’s Decision for her previous claim in March 2018 before this Court.
50. Without any explanation to those questions above, the immigration officer should not be blamed for not accepting the medical evidence now adduced by the applicant in support of her second application. In my view, acceptance of such evidence will give rise to an abuse of the screening system under the Ordinance. I shall give my reasons below.
Abuse of the screening system
51. The relevant statutory provisions of the Ordinance applicable to this application provide:
“37ZA.
Duties of claimant
(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—
(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts;
37ZI.
Decision on torture claim
(1) Unless a torture claim is withdrawn, an immigration officer is to decide whether to—
(a) accept the claim as substantiated; or
(b) reject the claim.
(3) A torture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if the claimant were removed or surrendered to a torture risk State.
37ZR.
Appeal
A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—
(b) section 37ZI(1)(b) [decision rejecting a torture claim];
23. Appeal Board’s decision (under Schedule 1A)
(1) On an appeal against a decision referred to in section 37ZR, the Appeal Board may confirm or reverse the decision.
(4) The Appeal Board’s decision is final.”
52. The Court of Appeal in Re: Aioub Ali[2019] HKCA 1329. Hon Lam VP, Wong and S T Poon, 2 December 2019, held that the Board’s decision can only be subject to judicial review by the court:
“16. Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final. Final means final in terms of administrative process. However, such statutory provision does not exclude judicial review. In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above.”
53. The Board’s decision is therefore final, only subject to judicial review by the court under the administrative law.
54. The applicant in this case did not raise the medical issue at the hearing of her application for leave for judicial review of the Board’s decision. The Board’s decision should be final.
55. She is attempting to review or to set aside the Board’s Decision in her previous claim by adducing medical evidence in her second application for subsequent claim. She only obtained the medical evidence in May 2022, some 6 years after she made her previous application to the Director for non-refoulement protection, and 5 years after the Board’s hearing in November 2017. See paragraph 48(e ) supra. She has given no explanation for all these anomalies herself.
56. For those circumstances above, the immigration officer is right not to attach any weight to the medical evidence. In my view, this medical report does not bear any evidential value.
57. For the reasons above, I find that the applicant’s second application for subsequent claim amounts to an abuse of the screening system of the Immigration Department.
Detrimental to good administration
58. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held at §27 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) explanation for the delay; (3) the merits of the substantive application; and (4) the prejudice to the putative respondent and to the public administration if extension of time is granted.
59. I consider that this attempt constitutes detriment to good administration. The Court of Appeal in the AW case held:
“69. As stated by the judge in §33 of his judgment, what constitutes detriment to good administration varies with cases. He regarded it would be detrimental to good administration if the adjudicator’s decision were to be quashed and the applicant’s CAT claim be remitted to the TCAB for re-assessment.
72. There is ample basis for the judge’s assessment in §34. I agree with Ms Tong it would clearly be detrimental to good administration to require the primary decision maker to assess the same issues twice, particularly given the large number of pending torture claims to be processed.”
60. The above case demonstrates the Court of Appeal’s concern. This case is yet another example, and for this reason alone, I will refuse to extend time for the applicant for making application for leave to apply for judicial review. For this reason, I will also refuse to grant leave to the applicant for judicial review of the Director’s Decision even if her application is within time.
61. Ground (2) fails.
Ground (3): failure to address state acquiescence.
62. Counsel submitted that the Director erred in failing to address the issue of state acquiescence where the additional materials disclose a prime facie case of state acquiescence. In particular, the Director erred in categorizing the applicant’s case as one of “private and personal in nature” in light of the cogency of the additional materials including that the state of Uganda acquiesced in the persecution of the applicant.
63. Counsel further submitted that the categorization is only general in nature and amounts to an error of law and/or is irrational in the public law sense, derogating from its duty of “joint endeavour” under the TKv Jenkins [2013] 1 HKC526 at §§25-27 and CH v Director of Immigration [2011] 3 HKLRD 101 at §47.
64. Upon close analysis of the evidence, it seems that the above submissions bear no substance.
65. I shall refer to the Director’s Decision below.
“10. (b) The case officer found that your allegation of the influential power of Doreen that she could locate you whenever you were in Uganda was too far-fetched and viewed that the threat from you enemies was localized. …The case officer also found that Doreen is not as powerful as you asserted as it would be not reasonable that she would [be] afraid of being charged for the false stamps case if she was the one who killed the butcher and the council chairman Paul Seaguya (§14 & 15 of 2016 NOD);
( c) … Although you said that your ex-husband also wanted to kill you as you had child with other man, you had mentioned that it was not the main reason that for you to leave Uganda. There was also no indication or information to show that your ex-husband wanted to harm you. Regarding the RDC, you said that the RDC wanted to find you as it was requested by Doreen. You also did not know the role of RDC. The fact that you could depart freely from Uganda to Kenya or China indicated that you are not the target of the Uganda Government (§16 of 2016 NOD).
(d) The case officer found that there were grave credibility issues on your case (§17 of 2016 NOD).
24. … … [after setting out the geographical factors of the alleged harms to the witnesses]. As such, your alleged risk of harm from your enemies, even if exists, to a large extent remains to be confined to the area of Wakiso District in Central Uganda. It once again affirm [sic] the assessment of the case officer that the threat from your enemies was localized. The risk of harm you claimed was small if you moved out of your home village or Doreen’s home village (see paragraph 10(b) above). Besides, as there is no new and objective evidence regarding the profile of your enemies which could support your assertion that your enemies are so powerful that they would locate and harm you nationwide upon your return to Uganda, the case officer’s assessment that your allegation of the influential power of Doreen that she could locate you wherever you were in Uganda was too far-fetched remains sound and effective (see paragraph 10(b) above.)”
66. The above evidence amply demonstrates that the immigration officer had not only made reference to the case officer in charge of the previous claim, which he was entitled to do under section 37 ZO (3) of the Ordinance, but had also exercised his own assessment of the case. He came to his own conclusion after his assessment of the evidence.
67. Those are the Director’s finding of the facts of the applicant’s claim. There is no valid reason from the applicant to challenge the Director’s finding. The Court should not interfere with the Director’s finding of the facts as held by the Court of Appeal in Kartini’s case.
68. The applicant was legally represented in her second application for subsequent claim. Her duty lawyer had submitted legal submissions on her behalf to the immigration officer, who had considered them and summarized them in the Director’s Decision at paragraphs 16 & 17. Duty lawyer had submitted that there was lack of state protection. See §16(k). It is not correct to say that the immigration officer did not consider this issue. However, the immigration officer rejected her evidence on the facts of the case, relying on the findings of the Board in the applicant’s previous claim. Without such factual background, it will be pointless to consider state acquiescence for the applicant. To answer this complaint, first the immigration officer had taken into account of state protection, and second, there is no factual basis for the applicant to bring in the issue of state acquiescence, the burden being on the applicant to bring in this issue.
69. For the reasons above, ground (3) fails too.
70. In any event, there is no evidence from the applicant to challenge the Director’s finding that state protection was available to her and internal relocation is a viable option if she returns to Uganda.
Disposition
71. The applicant fails to show that there is any realistic chance of success in her intended judicial review of the Director’s Decision. I will not extend time for the applicant to apply for leave to apply for judicial review of the Director’s Decision. Accordingly, I decline to give leave to the applicant to make fresh application under the existing RPO.
| | (K.W. Lung) |
| | Deputy High Court Judge |
Mr Jonathan Kwok, instructed by M/s Patricia Ho & Associates, for the applicant