NAYIGA REHEMA v. TORTURE CLAIMS APPEAL BOARD

HCAL 376/2020

[2025] HKCFI 5191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 376 OF 2020

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.  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 11 March 2020, 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 23 December 2019 (“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/2020/HCAL000376_2020_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to establish any ground under the Unified Screening Mechanism (“the USM”) for her non-refoulement claim. Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 24 October 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

The applicant’s case

3.  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.

4.  In sum, the applicant claimed for non-refoulement protection because if refouled to Uganda, she would be seriously harmed or killed by her former partner Mutebi Swale (“Swale”). She claimed that she was forced to live with him and they had 2 children. Swale physically abused her and after she left with their children, Swale threatened to kill her and the children if she returned to Uganda.

Oral hearing

5.  The applicant requested for an oral hearing of the Leave Application and her case was heard on 19 August 2025.

6.  When invited by this court to elaborate on the grounds that she advanced by way of an attachment to Form 86 and her supporting affirmation dated 11 March 2020, she simply replied that she did not have any further particulars to provide and she had nothing to add.

Grounds for judicial review

7.  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).

8.  The applicant annexed a document to Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. Further, the applicant advanced some more grounds in her supporting affirmation, which basically complained that she was denied of a hearing for her appeal, and that the Board had relied on sources of news which were not officially recognized, or were hearsay or outdated.

9.  The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to her own situation. Nevertheless, as the applicant is relying on the above grounds to make the Leave Application, this court will still deal with the grounds as discussed below.

Discussion

10.  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”.

11.  Thus, the general assertions put forward by the applicant, which merely contained “key words” such as the Board’s Decision was unreasonable and irrational, or that there was procedural unfairness cannot help the applicant at all.

12.  Her accusation that she was not given a fair opportunity to keep forward her submissions in an oral hearing was completely unfounded. In assessing her appeal/petition, the Board held an oral hearing on 19 August 2019 and she was present. Hence, the applicant was given the opportunity to present her case to the Board in person.

13.  The applicant also failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all country of origin information (“COI”) that it referred to in the Board’s Decision.

14.  Thus, this court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision.

15.  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).

16.  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.

17.  The Board found a number of aspects of her evidence at the hearing raised concerns about the credibility of her claims, especially why she could not continue to stay with her sister to avoid Swale. The applicant’s evidence about the threat posed to her by Swale was also confusing and inconsistent. The Board was satisfied that her claim that Swale posed a threat to her while she was at her sister’s house was not credible.

18.  Having considered all the evidence, the Board found that even if the applicant’s claim to have been in a violent relationship in Uganda from which she fled with her children was accepted as credible, she had provided no credible explanation as to why she did not simply remain at her sister’s house in Kampala where, on her own evidence, she was safe. The Board found that the applicant did not face a real risk of serious harm whilst residing at her sister’s house in Kampala and that she would not face such a risk should she return.

19.  In making the above finding, the Board placed particular weight on the applicant’s evidence that Swale did not know where her sister lived at the time she resided there before leaving Uganda. The Board noted that whilst she claimed at the hearing that her sister had told her that Swale knew then where she lived, the applicant’s own evidence was that he had not approached the house because he was afraid of her sister’s husband.

20.  Hence, the Board did not accept that the applicant’s claims as to why she was unable to continue living at her sister’s house to avoid any threat posed to her by Swale were credible, and the Board was satisfied that this lack of credibility fatally undermined the applicant’s case. Accordingly, the Board was satisfied that the applicant had not established any substantial grounds which could support the conclusion that she would face a real risk of any of the proscribed forms of harm upon refoulement.

21.  The Board further found that country of origin information (“COI”) did not support a claim that the applicant would be in danger of being subjected to torture should she return to Uganda on the basis of general security situation in Uganda.

22.  Thus, the applicant’s alleged danger upon return to her home country had been duly considered but rejected by the Board.

23.  Although the Board did not consider state protection and internal relocation, it was unnecessary to do so as the applicant’s claims and the matters giving rise to her non-refoulement claim were rejected in their entirety.

24.  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 she 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 her home area (see Gardi v SSHD [2002] 1 WLR 2755).

25.  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.

26.  The assessment of evidence, COI 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.

27.  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.

28.  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

29.  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