NYAKATO DESIRE KWATAMPORA v. TORTURE CLAIMS APPEAL BOARD

HCAL 569/2023

[2026] HKCFI 4113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 569 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 11 April 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 10 February 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000569_2023_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claim for non-refoulement protection failed on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3]under the Unified Screening Mechanism (“the USM”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 16 October 2017, which rejected the applicant’s non-refoulement claim on the said grounds.

3.  The applicant had previously made a torture claim and the claim was rejected by the Director on 9 August 2013. The applicant did not appeal against the said decision. Hence, the applicant’s Torture Risk[4] had been finally determined, and it was not necessary for the Board to assess this risk again in the Board’s Decision.

Amendment

4.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the putative respondent, when only the Board should be so named.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

6.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because if refouled to Uganda, she would be harmed or killed by people of the National Resistance Movement (“NRM”) due to political problem of her late husband, who was active in the Democratic Party (“DP”), the opposition party in Uganda. The applicant also claimed that she had a paid position in DP and was targeted because of her membership of DP and her active involvement in anti-government political activities. The applicant claimed that she had been cut in the thigh and raped on one occasion and contracted HIV as a result. The applicant also claimed that she could not return to Uganda as she was HIV positive and could not be guaranteed to receive regular medication in Uganda.

Oral hearing

9.  The applicant requested for an oral hearing and her case was heard on 2 July 2026.

10.  When this court asked the applicant to explain why she stated in her Form 86 and her supporting affidavit dated 11 April 2023 that the Board’s Decision was substantially unfair and was not made correctly, the applicant told this court that the Board dismissed her claim because she did not have sufficient information. However, she was working as a low-ranking secretary and in her country a woman was not given due consideration equally when serving as a low-ranking secretary. The Board expected her to remember everything, but she could not remember the details especially after the trauma that she was raped in her house. The applicant also said that she was receiving HIV treatment in Hong Kong, and she would be tortured or killed if she returned to her country.

11.  In her supporting affidavit, the applicant stated that she would submit additional grounds, but at the hearing, the applicant confirmed that she had no additional ground to submit.

Grounds for judicial review

12.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

13.  In Form 86, under the heading “Grounds on which relief is sought”, the applicant stated that the decision was substantially unfair, she was preparing the application without legal representation, and she reserved the right to amend these grounds in due course.

14.  In her supporting affidavit dated 11 April 2023, the applicant stated that the decision was not made correctly by the Board, and she would submit additional grounds to support her claim.

15.  As aforesaid, at the oral hearing, the applicant confirmed that she had no other grounds to submit.

Discussion

16.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “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”.

17.  The applicant did not state why or how the Board’s Decision was unfair and incorrect. Thus, the general assertions put forward by the applicant in Form 86 and in her supporting affidavit that the decision was substantially unfair and was not made correctly cannot help her at all.

18.  The applicant also mentioned the lack of legal assistance in her preparation of her judicial review in Form 86.

19.  This court notes that the applicant was in fact assisted by a lawyer from the Duty Lawyer Service in the first tier of the screening process when her case was assessed by the Director, as well as in her petition before the Board. The Court of Appeal has repeatedly emphasised that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37). Hence, there is no substance in this allegation.

20.  With regards to her statements both in Form 86 and her affidavit that she reserved the right and would submit additional grounds, the applicant did not advance any further grounds in writing, nor at the oral hearing before this court.

21.  Thus, this court finds that none of the matters asserted by the applicant in her Form 86 and her affidavit constitutes a valid ground to challenge the Board’s Decision.

22.  As to what the applicant said at the hearing, it was her duty to provide sufficient information and evidence to substantiate her claims. The applicant was in fact assisted by a duty lawyer at the hearing before the Board. Hence, there was no excuse that she could not present her case properly to the Board.

23.  As stated in paragraph 119 of the Board’s Decision, the Board in fact accepted that her evidence about the rape she claimed to have been suffered might well have been affected by the trauma that she would have suffered in that incident, and that this might provide an explanation for differences in her account about the matter. However, the Board did not accept that this would explain her lack of knowledge about other key aspects of her claims, particularly in relation to her involvement with the DP and her access to treatment for HIV in Uganda before her departure. Thus, the Board did deal with the applicant’s issue with her memory after the trauma, and this court finds nothing wrong for the Board to make the aforesaid assessment.

24.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

25.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

26.  As aforesaid, the applicant was legally represented in her petition before the Board. Thus, she was given the opportunity to present her case to the Board through her legal representative.

27.  As can be seen in the Board’s Decision, the Board had duly considered the two aspects of the applicant’s claims, namely her risk of serious harm and/or death at the hands of NRM activists and/or the Ugandan government, and her risk of being unable to access treatment that she required for HIV/AIDS in Uganda.

28.  The Board had laid out its assessment of the applicant’s claims in paragraphs 107 to 123 of the Board’s Decision, and it is not necessary to repeat the same here.

29.  In gist, the Board found that the applicant’s evidence raised a number of serious issues about the credibility of her claims. With regards to the applicant’s claimed involvement in opposition politics through DP, which directly led to her problems with NRM, the Board found the applicant’s responses to questions posed by the Board about her involvement with and knowledge of DP extremely general and vague. Her evidence about the rape incident was generally consistent apart from some inconsistencies about whether she knew the identities of the perpetuators. However, the applicant’s claim to have been diagnosed with HIV in the hospital where she was taken to after the rape was at odds with the information before the Board about the time required for the initial diagnosis of HIV/AIDS after exposure to the virus.

30.  The Board also found that the applicant’s evidence about events after her return from Kenya to Uganda varied considerably. The applicant’s evidence at the Board’s hearing as to why her husband and children were unable to join her or to leave Uganda was completely contrary to her written claims. Further, the applicant’s evidence as to how she came to know that her husband and children had been killed changed several times at the Board’s hearing.

31.  From the findings as summarised above, the Board regarded the applicant’s claims to have political involvement in Uganda, and her claim to have been targeted for harm because of such activity to have no credibility. Taking these matters into account along with the inconsistencies in her account as to her business in Uganda, her access to medical treatment for HIV in Uganda, the grant of passports to her family and the disappearance of her family after her departure, the Board regarded that the central claims of the applicant as having no general credibility.

32.  Hence, regarding the first limb of the applicant’s claims, namely that she was at risk of harm from NRM due to her membership of DP and her active involvement in anti-government political activities, the Board found that her claims of political activism were untrue. The Board therefore found her claim to have been targeted with threats, assaults and other violence because of her political opposition to NRM and the Ugandan government to be untrue. The Board found that the applicant had not established that she faced a serious risk of harm at the hands of NRM or government agents should she return to Uganda.

33.  In respect of the second limb of the applicant’s case, namely that she faced harm amounting to torture, CIDTP[5] and persecution, as well as a risk to her life because of her HIV positive status, the Board found that the applicant’s claim that even if effective treatment for HIV was available in Uganda, she would be denied access to such treatment because of her political profile, had not been established. The Board found that she did not have a political profile in her country.

34.  As to the other aspect of the applicant’s claim that there was a general lack of availability of effective treatment for HIV in Uganda, the Board found that the applicant’s claim that appropriate medications were not available to her before she left Uganda in 2009 was untrue. The Board also noted that she had been in receipt of appropriate treatment in Hong Kong since 2012, and that her condition was stable, and that she had maintained an undetectable viral load throughout her time in Hong Kong, during which she had adhered to the treatment regime.

35.  Based on country of origin information (“COI”), which clearly showed that Uganda had an active and effective health program in place, that the strategies put in place by Uganda were generally dealing effectively with the HIV/AIDS epidemic in the country and that effective and appropriate treatment was generally available, the Board found that the applicant had failed to establish that she would be denied access to effective and appropriate treatment should she return to Uganda because of any deficiencies in the treatment programs available in the country.

36.  Accordingly, the Board found that the applicant had not established that she faced a real risk of serious harm amounting to torture, CIDTP or persecution, or a real risk to her life should she return to Uganda because of her HIV positive status.

37.  The Board was therefore satisfied that the applicant was not at a real risk of any of the proscribed forms of harm upon her return to Uganda.

38.  Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found that the applicant was not at a real risk of any of the proscribed forms of harm.

39.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

40.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

41.  The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

42.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

43.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

44.  For reasons aforesaid, the Leave Application is dismissed.

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