Nansubuga Aisha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 155/2020

[2025] HKCFI 1450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 155 of 2020

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 15 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 December 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 16 April 2019 rejecting the applicant’s non-refoulement claim based on all applicable grounds. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000155_2020_files/the_Board's_Decision.pdf

2.The basis of the applicant’s claim is that she would be harmed or killed by authorities in Uganda due to her involvement with an anti-government political party, Forum for Democratic Change. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.Pursuant to the applicant’s request for a hearing, this court held a hearing on 26 March 2025. The applicant attended in person and spoke in English without requiring an assistance of an interpreter. After having heard from her, this court informed her that the decision would be reserved, and then sent to her updated address.

Discussion

4.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affirmation. In both of her Form 86 and the supporting affirmation, the applicant alleged breach of procedural fairness. She asserted that she was not invited or given opportunity to put forward her submissions; and that the source of news that the Board relied on was not officially recognized or was simply hearsay; and that the authorities were outdated. At the hearing, this court asked the applicant if she wanted to elaborate on her grounds of review. She stated that there was nothing to add as everything she wanted to say was already provided in her Form 86 and the supporting affirmation.

6.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[3] In the present case, the Board found that the applicant was not a witness of truth and that she had fabricated her claims in relation to her involvement with the FDC and the alleged torture by the Uganda authorities. The Board concluded that the applicant would not face a real risk of suffering from any proscribed harm in the reasonably foreseeable future. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court finds that the applicant’s grounds of review lack of particularity without any specification of how the Board is alleged to have erred particularly that the applicant was legally represented at the hearing before the Board. The allegation in relation to the lack of opportunity to put forward her submissions is sweeping. I am satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[4].

Orders

8.The Leave Application be dismissed.

Dated the 29^th day of April 2025

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