Case Document

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HCAL 747/2021

[2025] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 747 OF 2021

BETWEEN
	Ainembabazi Angel	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Uganda who arrived in Hong Kong on 23 April 2017 as a visitor with permission to remain as such up to 23 May 2017 when she did not depart and instead overstayed, and on 24 May 2017 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Uganda she would be harmed or killed by her 2 step-brothers over their personal disputes within the family. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kabale, Uganda where her father passed away when she was only 2 years old, and her mother subsequently married her step-father and gave birth to her 2 step-brothers.

3.After leaving school she worked as a hairdresser, and continued to reside with her family in her home village.

4.One afternoon in 2013 while she was alone in her home, her step-father came home and suddenly demanded her to sleep with him, and when she refused, he grabbed her by force into his bedroom and raped her, and afterwards her step-father warned her not to tell anyone about it or else he would kill her.

5.As the Applicant was fearful for her life, she did not tell anyone about the rape, but soon she became pregnant with her step-father’s child, and when she eventually disclosed the truth to the family, her step-father was ashamed with his act and later committed suicide, for which her mother and step-brothers blamed the Applicant, and drove her out of the family, whereupon the Applicant moved to stay with a friend, and eventually gave birth to a son in 2014.

6.However, upon hearing about the birth, her step-brothers came to demand that the Applicant and her son to leave the village or else they would kill both of them, and so the Applicant in late 2014 moved with her son to Kampala to take shelter in a friend’s place, but by early 2017 her friend was no longer able to continue to accommodate them, the Applicant then placed her son in the care of a charity organization, and on 2 April 2017 she departed Uganda for China, and from there she later travelled to Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 13 December 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her step-brothers upon her return to Uganda as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her step-brothers to seriously harm or kill her other than to keep her away from their family, that in any event it was a private family dispute between them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Uganda with a large population of 40 million people spread across a vast territory of more than 241,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Kampala where she had stayed before for more than 2 years without incidents and where it would be difficult if not impossible for her step-brothers to locate her.

9.On 27 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 2 September 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 April 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from her step-brothers that caused her to leave her country to come to Hong Kong to seek protection, but found no reliable evidence of any real intention of her step-brothers to seriously harm or kill her other than to deter her from returning to the family, and that in any event it was a private dispute between them within their family only without any official involvement that state or police protection would be available to the Applicant upon her return to Uganda as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her step-brothers that her claim for non-refoulement protection failed on all applicable grounds.

11.On 24 May 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Uganda, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.Moreover, the Applicant recently on 26 March 2025 filed an affirmation requesting to “cancel” her application as she has settled her problem in her home country that she now wants to return to Uganda.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 26^th day of June 2025

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 26 June 2025 Ainembabazi Angel Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 June 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 15065/18/12/422/U116 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4405/18 (Formerly RBCZ 10675/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)