MUGISHA JAMES v. TORTURE CLAIMS APPEAL BOARD

HCAL 1102/2022

[2026] HKCFI 4069

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1102 OF 2022

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 interested party be amended to “Director of Immigration”.

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 18 October 2022, 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 14 January 2022 (“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/2022/HCAL001102_2022_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s application for non-refoulement protection was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board refused the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 2 March 2017 and confirmed the same, which rejected the applicant’s non-refoulement claim.

Amendment

3.  The applicant named the Board as both the putative respondent and the putative interested party in Form 86, when the Board should only be the putative respondent, and the Director should be the putative interested party.

4.  This court therefore makes an order on its own motion to amend the name of the putative interested party to “Director of Immigration”.

Late application

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

6.  However, the applicant filed Form 86 on 18 October 2022, which was more than 9 months after the Board’s Decision (made on 14 January 2022). The applicant was hence late for more than 6 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

7.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

8.  The applicant did not make any application for extension of time and provided no explanation for the delay when he filed the Leave Application.

9.  At the oral hearing before this court on 2 July 2026, the applicant said that he was late in making the Leave Application because he did not understand English very well and he was trying to find somebody to interpret the papers to him. When this court asked him why he needed more than 3 months to find someone to help him, he simply said that he could not find anyone who could help him at the material time.

10.  A delay of more than 6 months is substantial, and the explanation given by the applicant is not satisfactory. The applicant could not offer any reason why he could not find anyone who could assist him within 3 months. More importantly, there is no merit in the Leave Application at all.

11.  Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

12.  However, for the sake of completeness, this court will still deal with the Leave Application as discussed below.

The applicant’s case

13.  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.

14.  In sum, the applicant claimed for non-refoulement protection because if refouled to Uganda, he would face death penalty as he had been accused of murder of a man named Abdu Ssegujja (“Abdu”), and Abdu’s family would kill him. The applicant also claimed that if he was remanded to face trial or sentenced to a term of imprisonment, the conditions of his imprisonment might be life-threatening, and that Abdu’s family might arrange to have him killed in prison.

Oral hearings

15.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 2 July 2026.

16.  At the hearing, the applicant said that he could not return to his country because he had committed a crime there, as he had a fight with somebody who later passed away. He needed to leave the country because both the deceased’s relatives and the government were looking for him.

17.  When this court asked him what was wrong with the Board’s Decision, he replied that the Board did not accept his claim as he had no evidence to show, but he showed the scar on his body to the Board. He also said that when he went away from his country, he was trying to save his life and he did not think of the evidence. Hence, he informed the Board that he did not have any other evidence except his words. He added that his mother told him in 2023 that his opponents came to her house and threatened her. However, this was conveyed to him after the Board’s Decision was made.

Grounds for judicial review

18.  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).

19.  The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his supporting affidavit dated 18 October 2022.

20.  At the oral hearing before this court, the applicant just reiterated the basis of his claim, namely that the government and the relatives of the person who had a fight with him and passed away were looking for him. He added that he learnt from his mother in 2023 that the opponents went to his mother’s house and threatened her.

Discussion

21.  First of all, the news from his mother that the opponents went to her house and threatened her was conveyed to him in 2023, after the Board’s Decision was made. Hence, this information was not placed before the Board for assessment.

22.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

23.  Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim based on matters that had not been presented to the Board.

24.  In any event, the applicant had already made a claim to the Board that two unknown men went to his mother’s house to enquire about his whereabout about a year ago before the Board’s Decision, and the Board had considered it in paragraph 62 of the Board’s Decision.

25.  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).

26.  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.

27.  In assessing the applicant’s appeal/petition, the Board held an oral hearing on 11 June 2021. The applicant was present at the hearing and was legally represented. Thus, the applicant did have a chance to present his case to the Board through his legal representative.

28.  As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection.

29.  In paragraphs 46 to 66 of the Board’s Decision, the Board had laid out its detailed assessment of all the aspects of the applicant’s claims, including that he might face death penalty, be killed by Abdu’s family, be killed under the harsh conditions of the prisons in Uganda or by arrangement of Abdu’s family if he was imprisoned.

30.  In gist, with regards to the applicant’s claim that he would be arrested, charged and subsequently sentenced to death if he was to return to Uganda, the Board found that the applicant had not provided any independent objective evidence to support his claims. Despite his claims that he would provide newspaper articles relating to Abdu’s death, the applicant failed to do so.

31.  The applicant had had around 10 years to obtain substantiating evidence, and he was assisted by a lawyer throughout the departmental and Board process. The Board found that the applicant’s failure to submit evidence in this regard undermined his credibility. His delay in making a non-refoulement claim also cast doubt on his stated reasons for coming to Hong Kong.

32.  It was the applicant’s duty to substantiate his claims. If he really had some other evidence to support his claims, he should have made his best effort and through his lawyer’s assistance to obtain and present them to the Board. As noted by the Board, he had around 10 years to gather the evidence. Hence, he simply has no excuse to say that he was not able to get evidence to support his claims.

33.  In any event, despite the Board’s concerns on the applicant’s credibility, the Board had, for the purpose of the Board’s Decision, accepted his account that he stabbed Abdu after Abdu had attacked him, and that it was possible that Abdu died from his injuries.

34.  However, the Board found that it was apparent from the applicant’s account that he was not charged with any offence at the material time. The Board found that if the applicant was charged or to be charged with murder, it was extremely unlikely that he would have been released after only being at the police station for around 3 hours and before Abdu’s condition was known. Further, the applicant had provided no evidence to support his claim that he would be arrested upon his return to Uganda. There was nothing which indicated that the police had a warrant for his arrest or did anything other than made enquiries about his whereabouts.

35.  The Board considered that the applicant’s claim that he would not receive a fair trial because Abdu’s family would interfere in the judicial process and also because he did not know if his then wife Jovita would support his version of events, was based upon supposition without any necessary foundation of objective truth. The applicant had provided no information about Abdu’s family which would in any way indicate that they had the influence or means to affect any trial or that he would not be afforded the protections inherent in the legal system in Uganda. It also appeared that he had reconciled with Jovita and there was nothing, other than his assertion, to substantiate his belief that she might not give truthful evidence. The Board found no reason to suppose that the applicant would not receive a fair trial.

36.  As to the possibility of the applicant facing death penalty, the Board did extensive research and found the applicant’s claim that he might face death penalty far-fetched and not in accordance with Ugandan law. The Board found that even in the unlikely event that the applicant was convicted of murder, it would be extremely unlikely for him to face death penalty (see paragraphs 57 to 60 of the Board’s Decision).

37.  The Board also gave due consideration to the applicant’s claim that if he was remanded to face trial or sentenced to a term of imprisonment, the conditions of his imprisonment might be life threatening. The Board found that given the physical condition and profile of the applicant, there was little reason to believe that, if imprisoned, his treatment would lead to his death or that it would be sufficiently severe to amount to CIDTP[1] or torture.

38.  With respect to the applicant’s fear of retaliation by Abdu’s family, the Board noted that the applicant knew little about them and he did not personally encounter them before his departure from Uganda. The applicant’s statements concerning them were unsupported and must be given little weight. The applicant had provided no information to support his allegation that Abdu’s family might arrange to have him killed in prison. There was also no information to indicate that they would have the means or influence to arrange such a thing.

39.  In relation to the applicant’s claim that his father was killed by Abdu’s family members, the Board found that the applicant had not provided any evidence about the circumstances of his father’s death or information to support his belief that his father was indeed killed by Abdu’s family.

40.  In these circumstances, the Board did not accept that the applicant was at risk of serious harm or death at the hands of Abdu’s family, nor did it accept that the applicant would be subject to death penalty or that the prison conditions, if he was sentenced to a term of imprisonment, were likely to result in death or serious harm.

41.  The Board therefore found that the applicant had not established that there were substantial grounds which supported a conclusion that he would face a real risk of ill-treatment as claimed if he returned to his country.

42.  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 the applicant was not at a real risk of any of the proscribed forms of harm.

43.  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 he 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 his home area (see Gardi v SSHD [2002] 1 WLR 2755).

44.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm either from the Ugandan authorities or from Abdu’s family, it is not necessary for the Board to consider internal relocation.

45.  The finding of facts, including the assessment of evidence, country of origin information 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.

46.  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.

47.  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

48.  For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

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