RE AKOKO JANET NALWONGA

CACV 225/2026, [2026] HKCA 986

On Appeal From [2026] HKCFI 1038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 225 OF 2026

(ON APPEAL FROM HCAL NO. 561 OF 2021)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge (Non-Refoulement Claims)  Jeffrey Chau (“the Judge”)  given on 2 March 2026[1] refusing her application for leave to apply for judicial review against the decision dated 12 April 2021 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed her appeal against the decision dated 25 October 2019 of the Director of Immigration (“the Director”)  which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2[5] risk grounds.

Background

2.  The applicant is a national of Kenya born in 1976.  She last entered Hong Kong on 20 December 2018 as a visitor and was allowed to stay until 20 March 2019. She subsequently overstayed and surrendered to the Immigration Department on 21 March 2019. On 16 April 2019, she lodged a non-refoulement claim on the basis that if she returned to Kenya, she would be harmed or killed by her five paternal uncles because of a dispute over her late father’s property. Details of the applicant’s background, the basis of her claim and the arguments advanced before the Board as well as the Board’s reasons for rejecting her appeal were all set out in the Board’s decision[6].   

3.  The present case, the Board found the applicant’s evidence of the past events “wholly unreliable” and rejected her claim entirely.  The Board found material discrepancies between her written claims, the record of her interview at the screening stage and her oral testimony.  For instance, she stated during the screening interview that the title deed was under her and her sisters’ names, but at the hearing testified that it was in her father’s name and was kept by a friend in Kenya.  Further, the Board found that the applicant had substantially embellished her evidence, claiming for the first time at the hearing that her father owned additional assets, and alleged that she and her sister were tied to chairs with ropes and beaten with sticks by one of the uncles and his group. The Board also identified numerous allegations which were not raised at the screening stage, including the attack at her shop, a subsequent court case initiated by her uncle, and a death threat made against her in March 2018.   The applicant spent seven months traveling through four south-east Asian countries but did not make any asylum claim during that time, which the Board found to be inconsistent with her key protection claims and undermined her credibility. Ultimately, the Board found that the applicant was never threatened or harmed by her uncles in relation to her family home, and that her core claims were fabricated.  The Board thus concluded that the applicant had failed to show any real risk of harm entitling her to non-refoulement protection under any of the applicable grounds. 

The Judge’s decision

4.  By a Form 86 filed on 21 April 2021, the applicant applied for leave to judicially review the Board’s decision but did not raise any grounds for seeking relief or point to any error of law, procedural unfairness or irrationality in the Board’s decision.  Her application was refused by the Judge for reasons given at [4] to [9] of the Form CALL-1. The Judge noted that the Board had rejected the applicant’s evidence and he agreed with the Board’s assessment. He concluded that the intended challenge was not reasonably arguable.   

This appeal

5.  On 10 March 2026, the applicant filed her Notice of Appeal against the Judge’s decision. She stated that she would face hardship if she returned to her home country. She further stated that the Board had relied on a source of news which was not officially recognised or simply hearsay, and on cases which were outdated, and that the lack of a credible source of information resulted in groundless speculations made against her.

6.  As the applicant did not lodge any written submissions, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  We will therefore proceed to determine the appeal on the basis of the available documents and materials.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  It is well-established that the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers. The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  The Board’s findings as to the applicant’s credibility and that the applicant’s core claims were fabricated were findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

10.  The grounds advanced by the applicant in her Notice of Appeal are general assertions unsupported by particulars. They fail to engage with the reasons of the Judge in rejecting her application for leave to apply for judicial review. 

11.  The applicant has not been able to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his holding that the intended judicial review had no prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

12.  The applicant’s appeal is accordingly dismissed.