Kato George Wilson v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3160/2019

[2025] HKCFI 3482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3160 of 2019

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

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 March 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 21 June 2018. His application was filed on 24 October 2019, which is late for more than 1 years and 4 months. This issue will be dealt with below.

2.The applicant asked for a hearing. He appeared before the Court on 2 July 2025.

The applicant

3.The applicant, aged 58, is a national of Uganda. He came to Hong Kong as a visitor on 29 May 2008. He overstayed and committed the offence of using a false instrument, for which he was sentenced to imprisonment. On 6 October 2008, he lodged a torture claim with the Director of Immigration (“the Director”). The Director rejected his claim. He did not appeal. In October 2013, he lodged a non-refoulement claim for the reason that, if refouled, he will be harmed or killed by James Mukiibi and his men (“his enemies”) because he advised Mukiibi not to stop some voters from voting in a general election. Mukiibi took it as he was acting for his rival party. He had sent people to attack him with knives and threatened him with death. He therefore came to Hong Kong.  See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003160_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

4.As the applicant’s torture claim was rejected, the Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 4 October 2017 (“the Director’ Decision”), the Director refused the applicant’s claim for the reason that it was unsubstantiated; that state protection will be available; and internal relocation is viable if he returns to his country.

The Board’s Decision

6.The applicant appealed the Director’s Decision to the Board.  On 22 December 2017, the Board conducted an oral hearing and had raised enquiries with him on the facts of his claim.

7.Having considered the applicant’s evidence, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

(1)  The chances of him being harmed or killed by his enemies are next to nil. [36]

(2)  His enemies’ threats are empty threats only. [37]

(3)  Internal relocation is viable if he returns to Uganda. [39]

Application for leave to apply for judicial review of the Board’s Decision

8.The applicant has filed Form 86 dated 24 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not raise any reason in support in Form 86.

9.In his affidavit in support of his application, the applicant attached a copy of the Board’s Decision without raising any specific reason to challenge it.

DISCUSSION

10.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had not told the full story to the Board because his ex-girlfriend was beside him and it would be embarrassing to tell the full story.

12.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The 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 Board.”

13.The reason he had stated before the Court will not assist his application as it is his duty under the law to fully disclose his story to the Board for assessment.  In fact, the applicant was unable to explain why the substance of his case will embarrass him in front of his ex-girlfriend. He cannot blame the Board if he chose not to disclose his full facts to the Board.

14.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

15.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 10^th day of September 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