NALUBEGA VICTORIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Form 86 is amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of Uganda.  By a Form 86 filed on 14 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 14 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 25 October 2018 (“the TCAB Decision”)[1].  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  

2.  The Applicant sought an oral hearing of her application. She attended that scheduled for 4 September 2025.  No interpreter had been arranged as she had earlier indicated to court staff that her first language was English.  At the hearing she told me that she could not really understand English, and said she needed a Lugandan interpreter.  I hence adjourned the hearing so that one could be arranged.  At the resumed hearing on 16 September 2025 she made some submissions (which I set out below) with the assistance of an interpreter.

3.  I have amended the Form 86 to reflect the identity of the proper Putative Respondent.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of her claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if she were sent back to Uganda she would be harmed or killed by one Waiswa, and would not receive appropriate medical treatment;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 3 August 2016 (“Director’s Decision”), and was also assessed and rejected on the grounds of BOR 2 Risk[5] by the Director in a decision dated 13 July 2017 (“Director’s Further Decision”);

(3)   The TCAB/NRCPO notified the Applicant in June 2018 of the date of hearing of her appeal/petition, which took  place on 12 September 2018 and at which the Applicant gave evidence via a Luganda interpreter; and

(4)   The decision-maker issued the TCAB Decision on 25 October 2018, in which it was held that the Applicant’s appeal/petition failed on all applicable grounds.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

8.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

9.  The application was filed more than 3 months after the TCAB Decision, and more than 17 months out of time.  I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

10.  Dealing, firstly, with the merits of her application, the grounds mentioned in the Form 86, which have been copied almost word for word from other cases, are that “the Respondent is in breach of procedural fairness in the following parts”:

(1)   “… the Respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement”; (Ground 1)

(2)   “… the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal”; (Ground 2)

(3)   “…the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness”; (Ground 3) and

(4)   “… the Respondent failed to meet the greater care and duty owed to a self-represented claimant”. (Ground 4)

11.  The Form 86 and the Affirmation also contain the following allegations which, again, have been copied almost word for word from other cases:

(1)   The Applicant believes she was not given a fair opportunity to “keep forward” her submissions in an oral hearing nor was she invited to submit written submissions.  The Affirmation, but not the Form 86, also said “Even if the Adjudicator decides not to have oral hearing, he should at least invite me to submit written submissions and evidence”.  Both documents also complain that “When the Applicant filled in the Appeal Form, [the Applicant] was only asked to write grounds for appeal but that will not count as an opportunity to reply to submissions made by the representatives of the [Director]”; (Complaint 1) and

(2)   The TCAB had “significantly relied on the source of news which is not officially recognized or it is simply hearsay.  They have also relied on some cases which are fairly outdated considering the dramatic changes,” and “The lack of credible source of information has resulted in them making groundless speculations that it is safe for [the Applicant] to return back to [the Applicant’s] country of origin”. (Complaint 2)

12.  Grounds 1 to 4 are merely generic, vague, and unparticularised assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how, and where each of those complaints arise in relation to the TCAB Decision.  They are hence entirely inadequate, as general assertions or propositions of law without particulars are not effective grounds to support a judicial review and cannot assist an applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §17; Re Kharsu Numan [2019] HKCA 626 at §24; Re Salim Ahmed [2020] HKCA 244 at §20; Haider Khalil [2021] HKCA 223 at §16; Akhondo Shakhil [2021] HKCA 1616 at §15). Complaint 2 also does not contain salient particulars.

13.  Nevertheless, given the seriousness of the issues at hand and the allegations in Complaints 1 and 2, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

14.  The decision-maker set out the Applicant’s background, immigration and procedural history, the documents at and conduct of the hearing, the Applicant’s claims, the conclusions reached by the Director, and the relevant law and principles in relation to evaluating risk and credibility (Paragraphs 1 to 29).

15.  The decision-maker then set out the process as to assessment, and its assessment, of the Applicant’s credibility and the evidence. While the decision-maker accepted the evidence relating to the Applicant’s HIV-positive status and related treatment it was concluded, with reference to salient reasons, that the Applicant’s account of why she had apparently need to flee Uganda in fear of her life could be given no credence whatsoever.  Indeed, none of her claims relating to her other circumstances in Uganda had been accepted, including her allegation that she did not have contact with or support from family members, and that she had no close family to turn to in Uganda.  It was also concluded that on the evidence she would in the circumstances be able to continue her treatment regime in Uganda, faced no immediate need for medical intervention, that it was likely she would have free access to the required medication and would be able to receive the same or similar regular check-ups as she received in Hong Kong, and there was nothing to suggest she would be unable to find any means of supporting herself.  On the facts, and even taking into account the possibility of some discrimination against her given her health status, there was no real risk of harm that would amount to Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk, hence none of them were established.  The appeal/petition hence failed and the Director’s decisions were confirmed (Paragraphs 30 to 81).

16.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and the risk of harm which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

17.  As to Complaint 1 in particular, that (whether on its own or in conjunction with any of Grounds 1 to 4) also does not raise any reasonably arguable error of public law.  An oral hearing took place, and it was for the Applicant to establish her claims before the decision-maker.  If she had further submissions to make or evidence to submit (including in response to the Director’s submissions) to the decision-maker, she could have done so at the oral hearing.  It is baseless to suggest that the decision-maker had to invite her to do so before she would do the same, or that she was somehow deprived of some opportunity to do so.  A fortiori when she had ample time from the Director’s Decision, and from the notification of the date of the hearing, to prepare for the hearing of her appeal, there was no indication that the Applicant complained at the hearing about these matters, and when she has not provided any specifics of how this apparently prejudiced or tainted the conduct of the hearing or the TCAB Decision, let alone in a manner sufficient to vitiate the conclusions reached by the TCAB/NRCPO.

18.  I also do not see any reasonably arguable ground for judicial review arising in relation to Complaint 2 (whether on its own or in conjunction with any of Grounds 1 to 4).  The Applicant has not identified what source of news or cases relied on was/were alleged to be “not officially recognized”, hearsay, or outdated, or how such are sufficient to vitiate the TCAB Decision.  There was also no complaint about such at the oral hearing, and in any event I do not see how any such public law complaint arises in the present case.

19.  At the hearing before me the Applicant via the interpreter referred to her HIV-positive status and submitted that she was not well and needed treatment.  I do not see how that is relevant to or assists the application in any way, given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings.

20.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

21.  Secondly, there is undue delay in this case as the leave application was filed over 17 months out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the documents for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

22.  The Applicant admitted before me that she had been sent the TCAB Decision in late 2018.  However, she claimed that she did not at the time understand it as it was in English, and that she was unaware of the deadline for applying for leave.  She did not explain when she had allegedly first come to understand the contents of the TCAB Decision.  She asked for me to extend time for her to make the application as she would like to continue receiving treatment for her health condition.

23.  I do not accept that I have been given an acceptable explanation for the delay.  Firstly, I do not see that her apparent failure to obtain an English interpretation of the TCAB Decision after she had received such on the second working day after 25 October 2018[8] is an acceptable explanation.  Indeed, substantive portions of her Notice of Appeal/Petition dated 6 September 2016 were written in English, the Form 86 is in English, the Applicant had indicated to court staff when filing her leave application that her first language was English, and the Affirmation was in English with an interpretation clause, all of which indicate that the Applicant either understood English or has access to, and would have been able to seek, interpretation services and language assistance if necessary.  Secondly, the fact that the Applicant is a litigant in person and may be ignorant of the rules of court does not justify the delay (Pascua Janice Alcaraz [2025] HKCA 579).

24.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

25.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be 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