Nankabirwa Hasfwa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3846/2019

[2025] HKCFI 1525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3846 of 2019

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 (Non-refoulement Claims) Martin Wong:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 24 December 2019 (the “Form 86”), the Applicant applied for leave to apply for judicial review of the decision by “Adjudicator of TCAB” dated 9 December 2019. She named the Torture Claims Appeal Board (the “TCAB”) as the proposed respondent and the Director of Immigration as an interested party.

2.From the papers filed for this application there was a decision by the TCAB dated 9 December 2019 (the “TCAB Decision”) confirming the decision of the DOI dated 23 October 2018 refusing the Applicant’s non-refoulement protection claim, so I take it that the Applicant is seeking judicial review of the TCAB Decision.

3.The Applicant requested for a hearing of this application and she attended.

Background

4.The Applicant is a national of Uganda. She seeks non-refoulement protection on the basis that if she is returned she will be harmed or killed by people with whom she has a land dispute. Her personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

5.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision‑makers. This 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 (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

6.In her affirmation filed in support of the Form 86, the Applicant has not stated any error of law, procedural unfairness or irrationality of the TCAB Decision.

7.At the hearing, she informed me that she has since given birth to another child in Hong Kong and wished to provide documents to show for it. I therefore directed her to file a further affirmation by 21 March 2025.

8.By a letter dated 18 March 2025 submitted to the Registry, the Applicant provided a copy of the birth certificate of her daughter, who was born on 14 April 2021, and also some medical documents pertaining to herself and her daughter. Quite apart from the fact that these did not come under an affirmation, these documents are not relevant to the issues or considerations in this application and thus I shall not admit them. For what it is worth, whether the situation of her daughter in Hong Kong warrants any other application in her own right is outside the ambit of this application.

9.Turning to the TCAB Decision, which is within the ambit of this application, all the available evidence was placed before the TCAB [6-68], and after careful consideration of the same the TCAB came to the conclusion that the Applicant’s allegations were not made out [69-103].

10.The TCAB then proceeded to analyse each of the four applicable grounds under the USM, with in mind the correct legal principles to apply, and concluded that none was made out [104-116].

11.All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

12.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 12^th day of May 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