KISAKYE LISA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2101/2020

[2025] HKCFI 5497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2101 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION                                                                        

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 March 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 19 June 2018.  Her application was filed on 21 October 2020, which is late for more than 2 years and 4 months.  This issue will be dealt with below.

2.  The applicant requested an oral hearing.  But she was absent at the hearing on 10 November 2025.  I shall deal with her application on the papers.

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.

4.  On 11 November 2025, the applicant wrote a letter to the Court, saying that she was feeling dizzy on the hearing date.  She asked her case to be re-heard on another date.  However, there is no medical evidence in support of her application.

5.  Having considered that Board’s Decision and the Board accepted the facts of her case, this Court finds it unnecessary for the applicant to appear the Court to clarify her case for it.  Her application is refused.  The Court proceeds to deal with her application.

The applicant

6.  The applicant is a national of Uganda.  She is an illegal immigrant, having entering Hong Kong as a visitor, but overstayed since 3 November 2008.  She was arrested.  She lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, she will be harmed or killed by her adoptive mother and step-father, who had abused her when she was in Uganda and she had to escape from them.  Her story is set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002101_2020_files/the_Board's_Decision.pdf.

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 Notice of Decision dated 17 July 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 13 February 2018, the Board conducted an oral hearing.  The applicant had given oral evidence and answered the Board’s questions.

10.  Having considered the applicant’s evidence, the Board made the findings below.

(1)  The applicant was a reliable witness,[52]

(2)  She admitted that the chance of her meeting her adoptive and step-father is remote even if she returns to Uganda.  [[54]

(3)  In the circumstances, the Board was not satisfied that she will have any real risk of harm under the applicable risks if she returns to Uganda.

11.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

12.  The applicant has filed Form 86 dated 21 October 2020 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

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 applicant has failed to raise any valid ground to challenge the Board’s Decision.  In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

19.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

20.  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 her application.

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

[1]    Delay in applying for relief (O. 53, r. 4)

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  (L.N. 356 of 1988)

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.