BGOYA BENARD MUGISHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 401/2021

[2026] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 401 OF 2021

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.  No order be made in respect of the applicant’s application for extension of time to file the application for leave to apply for judicial review.

3.  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 22 March 2021, 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 21 December 2020 (“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/2021/HCAL000401_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 31 May 2018, which rejected the applicant’s non-refoulement claim.

Amendment

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

4.  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 respondent at all.

5.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

6.  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.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to Tanzania, members of the Chama Cha Mapinduzi, with the assistance of the police, would harm and possibly kill him, as he belonged to the opposition party Chama Cha Demokrasia Na Maendeleo (“CHADEMA”) and his father was an officer of CHADEMA.

Application for extension of time to file the Leave Application

8.  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.

9.  The applicant filed Form 86 on 22 March 2021, which was 3 months and 1 day after the Board’s Decision (made on 21 December 2020). However, the last day of the 3-month period, ie 21 March 2021, was a Sunday. Section 71(1)(b) of the Interpretation and General Clauses Ordinance, Cap 1, stipulates that “if the last day of the period is a public holiday … the period shall include the next following day, not being a public holiday … ”. As the last day of the 3-month period was a public holiday, it means that the next following day, ie 22 March 2021, was included in the computation of time.

10.  Thus, the applicant was not late in filing the Leave Application on 22 March 2021, and he was not required to seek for an extension of time to file the Leave Application.

11.  However, by way of a letter dated 28 April 2021 to this court, the applicant applied for an extension of time to file the Leave Application. As aforesaid, this application is not necessary as there was no late filing of the Leave Application. Hence, this court will not make any order in respect of the applicant’s application for an extension of time to file the Leave Application.

Oral hearing

12.  The applicant requested for an oral hearing of the Leave Application, and the hearing was fixed on 22 January 2026. Before the hearing, the applicant wrote a letter dated 12 January 2026 to apply for an adjournment of the hearing pending his legal aid application.

13.  By a letter dated 20 January 2026, this court informed the applicant that his application for an adjournment of the hearing was refused. The applicant’s case was therefore heard on 22 January 2026 as scheduled.

14.  At the hearing, this court asked the applicant to elaborate on the ground of his intended judicial review as stated in his Form 86, ie the decision was substantially unfair. However, the applicant said that he was not making any submission as he had applied for legal aid in the first week of January this year and he was waiting for the result of his legal aid application.

15.  The applicant said that he was convicted for an offence and was in jail in 2024 and 2025. When released from prison, he was detained by the Immigration Department. The Immigration Department gave him a letter about judicial review but he had no idea about it because he was all by himself and his lawyer could not find him when he was in detention.

16.  On the other hand, the applicant admitted that when he filed the Leave Application in 2021, he was assisted by a lawyer, as he contacted his lawyer 3 to 4 days before the deadline for filing the Leave Application. However, he was not happy with his lawyer because the lawyer did not prepare submission for him.

17.  Thus, the applicant requested this court to give him some more time by adjourning the case so that he could prepare for the submission and collect some evidence.

18.  However, this court noted that the applicant filed the present application in March 2021, long before he was in jail and in detention. He should have ample time and opportunity to apply for legal aid even before he was detained. He was in fact assisted by his own lawyer when the Leave Application was filed. This court was of the view that it was not right to delay the process any further by adjourning the case. This court also explained to the applicant that it was not for this court to receive new evidence as it was a judicial review application. Thus, the applicant’s application for adjournment at the hearing was refused.

19.  However, the applicant insisted that he did not have time to prepare his submission regarding the Leave Application. He only attended the hearing to seek for an adjournment of his case. Thus, the applicant did not give any ground for his intended judicial review, nor elaborate the ground stated in his Form 86. Instead, the applicant simply asked this court to decide.

Grounds for judicial review

20.  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).

21.  As aforesaid, the only ground stated in the applicant’s Form 86 was that “The decision is substantially unfair.”  Although the applicant also stated in his Form 86 that he was preparing the application without legal representation and he reserved the right to amend the grounds in due course, he never put forward any further ground even at the oral hearing before this court. He merely wanted to apply for an adjournment of his case, which was refused by this court. Despite the refusal, the applicant still elected not to give any submission. Thus, the applicant did not elaborate on the ground stated in his Form 86.

Discussion

22.  As aforesaid, the applicant only asserted in his Form 86 that the Board’s Decision was substantially unfair, without any further elaboration.

23.  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”. Thus, such general allegation cannot help the applicant at all.

24.  In his Form 86, the applicant claimed that he was preparing the Leave Application without legal representation. However, he admitted before this court that he could contact his lawyer 3 to 4 days before the deadline for filing the Leave Application and his lawyer assisted him in preparing the application even though his lawyer did not prepare any submission for him.

25.  In any event, even assuming that there was a lack of legal assistance in his preparation of the Leave Application, it does not amount to a ground for his intended judicial review. The applicant was in fact provided with legal assistance during the first-tier screening of his non-refoulement claim. He was also legally represented on appeal to the Board. The Court of Appeal has repeatedly emphasized 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). Thus, the applicant cannot complain that he could not have legal assistance at this stage.

26.  As to the applicant’s intention to collect evidence to support his claim, it is not for this court to receive new evidence as the role of the court in a judicial review is different from the role of the primary decision-makers. If the applicant has any evidence to support his non-refoulement claim, he should have presented them to the Board for assessment. 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.

27.  Thus, even if the applicant has any new evidence to produce now, this court will not take on the role of the primary decision-makers to re-assess his claim.

28.  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).

29.  Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.

30.  In assessing the appeal/petition by the applicant, the Board held an oral hearing on 19 November 2020. The applicant was present and was represented by his legal representative. Thus, the applicant was given the chance to present his case to the Board through his legal representative.

31.  As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board found the applicant’s claim to be implausible and laid out in no ambiguous terms in paragraph 118 of the Board’s Decision the multiple inconsistencies and new claims only made by the applicant at the Board’s hearing and not previously iterated even indirectly in his earlier evidence.

32.  After due consideration of the evidence individually and cumulatively, the Board was unable to accept as credible any of the central aspects of the applicant’s claim. The Board concluded that the applicant had fabricated the central aspects of his claims. The applicant took no action or even made enquiries concerning mechanisms for protection in the 3 years when he was in Kenya or through the United Nations High Commissioner for Refugees in that country. The Board also found that the applicant’s prolonged delay in accessing a protection mechanism in Hong Kong under the USM to be inconsistent with a person genuinely fearing serious harm in his home country. The Board did not accept as plausible that the applicant’s delay was explicable by reference to his education level.

33.  Accordingly, by reference to a combination of the overwhelming number and nature of inconsistencies, the introduction of new claims without plausible reason and unsatisfactorily explained delay in seeking protection on the part of the applicant, the Board was not satisfied that the applicant was even ever a member or supporter of CHADEMA.

34.  Furthermore, the Board did not accept (1) the applicant’s account of being arrested and detained and later hospitalised in the context of having been a CHADEMA member or activist conducting a recruitment meeting; (2) his father was killed, at least in the manner that the applicant had described in different ways at different times; (3) he was targeted following the death of his father whilst in his home city of Dar-es-Salaam; (4) he and his family were forced to relocate to other places in his home country such as Morogoro or Mwanza, at the very least was not for reasons involving an attempt to escape serious harm at the hands of the police or other authorities in his home country; (5) the applicant’s varying claims made in terms of attacks upon his mother; (6) any of the claims in relation to homes in Mwanza or Morogoro, whether being attacked and/or incinerated due to the applicant’s political profile or background.

35.  Thus, the Board was not satisfied that the applicant had been or would be subjected to any form of proscribed harm by the police or other authorities or by supporters of the ruling party in his home country.

36.  Overall, in view of its assessment of the applicant’s claims and the available evidence, the Board did not accept that there was a consistent pattern of gross, flagrant or mass violations of human rights in Tanzania for the purposes of section 37ZI(5) of the Immigration Ordinance or otherwise.

37.  The Board concluded that there was not a real risk the applicant would prospectively face any of the proscribed forms of harm should he return to Tanzania.

38.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

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 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).

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 finding of facts including the assessment of evidence and risk of harm was solely within the ambit of the Board. The Board was entitled to make its own decision. 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