Naluyange Zaugi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 224/2020

[2025] HKCFI 2065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 224 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 (Non-refoulement Claims) Teresa Wu:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.By Form 86 (“Form 86”) filed on 21 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 27 December 2019 (“the Board’s Decision”) confirming the decision of the Director of Immigration (“the Director”) dated 21 January 2019 (“the Director’s Decisions”), which rejected her non-refoulement claim on all applicable grounds (“the Grounds”) under the Unified Screening Mechanism (USM).

2.I have amended Form 86 on my own motion, correctly naming the Board as the proposed respondent and the Director as the proposed interested party.

Background

3.It is unnecessary for me to restate the facts of the present case here.  The Applicant’s personal background, her case and claim, including the incidents alleged by her to show that she would be harmed or killed by her paternal uncle in Uganda owing to a land dispute, and the immigration and procedural history, etc. were set out in details in the Board’s Decision. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, the Board’s abbreviations and descriptions are adopted herein. 

Discussion

4.I am not satisfied that the Applicant’s intended application for judicial review seeking to challenge the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and have therefore refused leave.

5.To begin with, given the seriousness of the issues involved, it is essential for me to remind myself of the enhanced standard that should be adopted when evaluating the Board’s Decision (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163). 

6.The Board made factual findings regarding the Applicant’s non-refoulement claim after the hearing based on her individual allegations, the risk (or otherwise) of harm, the availability (or otherwise) of state protection and the viability (or otherwise) of internal relocation, etc., while considering all relevant materials, including her personal circumstances and the country of origin, etc. (see Satnam Singh v Director of Immigration & Another [2019] HKCA 433 at §11.1):  

(1)   The Applicant made bare assertions and provided no objective proof in support.  She did not have any further information or documentation to add to the hearing bundle.

(2)   The Applicant’s claim was limited to a death threat from her uncle and revolved around his quest for certain documents that proved her entitlement to certain land which became hers after her father’s death in about 1998.  However, she did not provide any documentation in support of her claim.

(3)   The Applicant did not report any threats to the police.  Ugandan Police Force did have a Family and Child Protection Department and even minors could make police report.

(4)   The Board found that it was not possible for the Applicant to establish that her mother and younger sister actually left in about 2015 and, in any event, it had any particular bearing on her claim.

(5)   The Board concluded that the Applicant had the “barest” notion about the documentation and it was “very doubtful” that she possessed documentation that would establish her right to land.  But even if she had some interest in her father’s property, the likelihood of her uncle demanding it for sale was low.

(6)   The Board was not satisfied that there was any evidence of a real chance that the Applicant would be killed, harmed or tortured by a public official.

(7)   Neither was there any evidence showing that the Applicant had committed any criminal offence, let alone an offence for which she would face capital punishment in Uganda.

(8)   The Board was also not satisfied that the Applicant faced any genuine and substantial risk of being subjected to torture or CIDTP if returned.

(9)   Finally, the Board also ruled that the Applicant had not provided any evidence of persecution under any of the reasons under the Convention.

7.Consequently, the Board rejected the Applicant’s claim for non-refoulement on grounds of Torture Risk, BOR 3 Risk, BOR 2 Risk or Persecution Risk.

8.The Applicant has not identified any errors of law, procedural unfairness, or irrationality in the decision of the Board.  She is unable to demonstrate any grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142).  There is little use for her to merely express “disagreement” with the decision of the Board. 

9.The Board was the primary decision‑maker, responsible for evaluating the Applicant’s claim and determining the appropriate weight to be given to the evidence.  It is not the role of the Court to come to a fresh view on whether she would face any of the prescribed risks of harm.  Unless and until she establishes irrationality or such other public law grounds in this case, the role of the Board should not be usurped (see Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163).

10.Upon rigorous examination and anxious scrutiny, I am satisfied that the Board correctly applied the law and observed a very high standard of fairness.  The Applicant should not use the present application as an appeal or as an avenue to revisit arguments that had already been addressed by the Board.

Conclusion

11.For these reasons, I make an order that Form 86 be amended as described above and the Leave Application be dismissed

Dated the 11^th day of July 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