Lubega Muzafaru v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 288/2020

[2025] HKCFI 2117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 288 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Levy:

1.  Leave be granted to the Leave Application.

2.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 3 March 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 24 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 2 October 2019 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000288_2020_files/the_Board's_Decision.pdf

2.The applicant claimed to be a dual national of Nigeria and Uganda. The basis of the applicant’s claim is that if refouled to Nigeria, he would be harmed or killed by his half-siblings over a property dispute. If refouled to Uganda, he would be involved in ethnic and tribal conflicts. 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 of the Leave Application, this court held a hearing on 13 May 2025. The applicant did not turn up at the hearing. A notice of hearing with a reminder[1] of the consequence of absence dated 16 April 2025 was sent to the applicant’s last known address by ordinary post. Several phone calls were made to the applicant’s given telephone number on 9 and 12 May, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

The applicant’s grounds

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 affidavit.

6.In his Form 86, the applicant advanced the following grounds, which are summarized as follows.

(a)  The Board’s Decision was unreasonable and unfair;

(b)  Insufficient importance or weight was given to state acquiescence;

(c)  Though the Director listed relevant country of origin information (“COI”) that supported the applicant’s belief that the police in his country would not be able to protect him, such COI was not considered or given enough weight;

(d)  The Director showed an unfair attitude, and failed to meet the required high standards of fairness.

7.However, the applicant did not provide any particulars in support of his grounds.

Discussion

8.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]

9.In the present case, in assessing persecution risk, BOR 2 risk and torture risk, the Board respectively found that the applicant had failed to show a well-founded fear of persecution for a Convention reason; that the applicant would not be in a real danger of being killed in the receiving country (Nigeria); and that there was nothing to indicate that the ill-treatment the applicant suffered or inflicted by his half-siblings were done with the consent or acquiescence of a public official of other person acting in an official capacity. In relation to the assessment of BOR 3 risk, the Board found that the applicant had not adduced any objective support for his claims and further that the half sibling (perpetrators) were connected with the state of Nigeria. Thus, the Board concluded that the applicant failed to prove substantial grounds for believing that he would be subjected to a real risk of harm. The Board found that the applicant had not adduced any objective evidence in support of his allegations or to show that it would not be safe to return to Uganda. The Board also considered that the he had not shown that state protection would not be available in Nigeria, because he never sought help from the police. The Board also considered that internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

The applicant’s nationality status

10.In the present case, the Board seems to have been alive to the issue and the importance of nationality by including a discussion of this issue under a separate heading of “dual nationality”. The Board also pointed out (at [31] of the Board’s Decision) the importance of the issue to the applicant’s non-refoulement claim stating that “there is an underlying assumption that whenever available, national protection takes precedence over surrogate international protection… whenever available, home state protection is a claimant’s sole option.” (Board’s Decision at [31]).

11.Having identified the importance of the issue, the Board seems to have entirely relied on the applicant’s answer [4]as to his nationality in his screening interview with the Director. Without having made any investigation, the Board concluded that the applicant had dual nationality of Nigeria and Uganda.

12.I should mention that on the court file, there is a copy of the applicant’s Uganda passport, which was probably retained by the Registry staff when the applicant filed the Form 86. Hence, it is likely that the applicant has a Uganda passport. Notwithstanding, it is incumbent on the decision-maker (the Director and the Board in this case) to investigate the applicant’s claim of dual nationality, and take that into consideration. This is because it is also trite that claimants cannot legally be refouled or repatriated to a country whose nationality they do not have.

13.Hence, a decision-maker needs to establish the true legal position of a claimant’s nationality and consider it: Dian Lestari v Torture Claims Appeal Board [2025] HKCA 39 (Chow JA & Cheng J). A claimant’s statement as to his/her own nationality is insufficient. The decision-maker should not make assumption but make a finding on the true legal position of a claimant’s nationality. Before an actual finding on nationality can be made, the decision-maker is required to investigate with reference to official documents. Re Novi Azizah, [2021] HKCA 1910 (Kwan VP & Yuen JA) at [27] and Re Liana Risdianti, [2022] HKCA 1058 (G Lam JA & Barnes J) at [26] – [28].

14.In the Director’s Decision, there is no mention as to whether the applicant had a passport when he arrived at the Hong Kong International Airport on 14 August 2019. The Director (the Director’s Decision at [47]) seems to have also accepted that the applicant has a Uganda passport by merely basing on the information the applicant provided. The Director seems to have accepted the applicant’s statement without making any independent verification. The Director also accepted that the applicant’s Nigerian nationality by his own assumption without any inquiry.

15.Similarly, the Board seems to have also taken the same approach by assuming the dual national of Nigeria and Uganda without making a finding on nationality with reference to any official materials. Nor was there any consideration of expert evidence on the nationality laws of either Nigeria or Uganda.

16.In the circumstances, there is no finding on the applicant’s claim of dual nationality. Arguably, there is no valid legal basis for the Board’s risk assessments in respect of potential refoulement to either Nigeria or Uganda. Thus, it is reasonably arguable that the Board has failed to apply the highest standard of fairness of making a proper investigation as to the applicant’s claim of dual nationality.

Risk of harm, state protection and internal relocation

17.Even assuming that the applicant may be a dual national of Nigeria and Uganda, it seems that the Board has also failed to properly assess the risk of harm, state protection and internal relocation.

18.In the Board’s Decision, the Board has not impugned the applicant’s credibility but found that the applicant has not adduced any objective support for his claims. On this basis, the Board concluded that the applicant did not face any risk of harm. However, the Board is duty bound to assess whether the allegations may be plausible or believable even there was no objective evidence in support of the applicant’s assertions.

19.It is apt to refer to the guidelines stated in the UNHCR Handbook[5].

“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

20.When the Board did not properly consider whether the harm or ill-treatments that the applicant complained of - including his half-siblings’ confession to the murder of his mother[6], their violent attacks on him including stabbing and injuring him with a broken bottle[7], and their threats to kill him[8] - could amount to cruel, inhuman or degrading treatment or punishment (“CIDTP”), the Board’s conclusion(Board’s Decision at [62] – [63]) that the applicant did not face BOR 3 risk[9] is arguably unfair.

21.Additionally, the Board’s conclusion (at [65] of the Board’s Decision) that there would be no real future risk of torture and CIDTP is also based on its finding on the viability of internal relocation. However, the Board’s assessment of internal relocation seems to be based on its own opinion. High standard of fairness requires the Board to demonstrate that it had conducted a proper and independent assessment of COI and made its own findings: A, B, C, D and E v Torture Claims Appeal Board [2024] HKCA 471 (Kwan VP & K Yeung J)at [33] – [34]. The Board does not seem to have been able to demonstrate any proper assessment.

22.All the Board did when considering internal relocation was to refer to the statistics as to Nigeria’s geographic area[10]. After having accepted that Nigeria had a large geographical area, the Board found that the applicant could live anywhere in Nigeria.

23.However, the Board did not consider the applicant’s specific circumstances in assessing whether it would be unduly harsh for him to relocate within the putative country of origin, and the ethnic conflicts the applicant alluded to.

24.In the circumstances, it appears that there is no valid finding as to internal relocation, and the Board’s conclusion on internal relocation is arguably unreasonable and tainted by procedural unfairness.

25.Availability of state protection, though not necessarily determinative, is a relevant consideration for a proper assessment of BOR 3 risk. The Board’s lack of proper assessment of the COI also suggests that there has not been an effective consideration of the state protection. Thus, the Board’s Decision is arguably tainted with procedural unfairness.

Conclusion

26.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Orders

28.Leave be granted to the Leave Application.

29.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party.

Dated the 26^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