NAKAMYA NOWERINA 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 7 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 7 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 23 June 2020 (“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 3 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 his 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 Hakim Munobwa (“Hakim”);

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 23 November 2018 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing on 17 December 2019 and at which the Applicant was legally represented; and

(4)   The decision-maker issued the TCAB Decision on 23 June 2020, in which it was held that the Applicant’s appeal/petition failed on all applicable grounds, and the Director’s Decision was confirmed.

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).

Discussion

8.  The Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. As for her submissions at the hearing on 16 September 2025:

(1)   The Applicant initially sought to make submissions in relation to Paragraphs 18 and 19 of the Director’s Decision. However, such were and are not relevant to the leave application given that the Director’s Decision was not the subject of such, and also as once the Applicant had appealed/petitioned to the TCAB/NRCPO, the Director’s Decision was (absent exceptional circumstances, of which none have been suggested to me) no longer susceptible to judicial review (Moshsin Ali [2018] HKCA 549; Yeni Setyawati v Torture Claims Appeal Board [2019] HKCA 1310; Sherpunja Thapa Kul Prasad [2022] HKCFI 2434 §18);

(2)   The Applicant then claimed, in general and not merely with reference to the Director’s Decision, that COI were looked at on the internet which were “very different from what is on the ground”. However, such vague and unparticularised assertion without reference to any underlying facts or matters establishing why, how, and where such gives rise to a public law complaint in relation to the TCAB Decision is not an effective ground to support a judicial review and cannot assist the Applicant (Re Mizan Sikder [2019] HKCA 20 at §17; Re Aziz Nasir [2019] HKCA 578 at §24; 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); and

(3)   She finally asked that her application be accepted and that “they revisit the decision” because she did not agree with it. This is clearly not a ground of judicial review.

9.  There is hence no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application 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.

11.  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 in the Director’s Decision, and the relevant law and principles in relation to evaluating risk and credibility (Paragraphs 1 to 25).

12.  The decision-maker then set out the relevant evidence that had been made available, referred to the nature of the process before it, and concluded for salient reasons that the Applicant had not discharged her relatively light burden, even taking into account the aforementioned guidance as to assessment of credibility and risk, such that no credence could be attached to any of her assertions. While there was no dispute that the Applicant was a national of Uganda, she had not established any of the other facts that she had asserted. Accordingly, there was no basis for concluding (and the Applicant had failed to establish) that the Applicant faced a real risk of harm that would amount to Persecution Risk, BOR 2 Risk, BOR 3 Risk, or Torture Risk. The appeal/petition hence failed on all grounds and the Director’s Decision was confirmed (Paragraphs 26 to 45)

13.  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 justify the grant of leave.  In particular:

(1)   The decision-maker’s assessment, reasoning, and findings regarding the Applicant’s evidence, credibility, and risk of harm, are matters primarily within the province of the decision-making body and I do not consider that in the circumstances of this case there is any reasonable argument that the claim (particularly in relation to such issues) was not fairly processed. Firstly, after the Applicant had indicated (via her solicitor and with the assistance of an interpreter) that she did not intend to give evidence or answer any questions, the TCAB/NRCPO had explained to the Applicant that as the lack of information provided by her raised many questions which needed to be resolved, there was insufficient information on the papers to allow it to make a positive decision in her case, and that if the Applicant did not answer questions and resolve difficulties with the evidence she could not expect to be successful. I consider that clear and sufficient indication was given to the Applicant that the decision-maker clearly had doubts about and was likely to (absent oral evidence from the Applicant) reject the Applicant’s underlying factual claims (see Pradeep Kumar [2022] HKCA 608 at §17 and Buniag Renante Lulu [2022] HKCA 836 at §§23‑25, explaining Masud Md [2021] HKCA 1449).  It is also clear that the Applicant appreciated and understood the ramifications of her position and approach, and chose to maintain such (see Paragraphs 6 to 8, and 26). Secondly, and unlike in Re Hidayah [2018] HKCA 595, the decision-maker rejected the Applicant’s factual case and claims. In any case, it is not apparent to me that the Applicant has raised any ground of judicial review or complaint in relation to the fairness of the process by the TCAB/NRCPO; and

(2)   There is hence, and also, no public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk.

Conclusion

14.  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