Nakitto Aisha v. Torture Claims Appeal Board

HCAL 1181/2020

[2025] HKCFI 5761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1181 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 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 Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 2 June 2020”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 15 June 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 2 June 2020 without identifying the decision-maker.

2.The Torture Claims Appeal Board (“the Board”) made a decision on 2 June 2020 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 1 June 2018 (“the Director’s Decision”). A copy of the Board’s Decision was attached to the applicant’s supporting affidavit dated 15 June 2020. It is clear that the Leave Application is in respect of the Board’s Decision, which can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001181_2020_files/the_Board's_Decision.pdf

3.The Board found that the applicant’s application for non-refoulement protection was not made out on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board refused the applicant’s appeal/petition and affirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim.

Amendments

4.In Form 86, the applicant named “USM” as the putative respondent and the Board as the putative interested party.

5.In fact, the Board should be the putative respondent and the Director should be the putative interested party.

6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

7.As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, it is so amended.

The applicant’s case

8.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

9.In sum, the applicant claimed for non-refoulement protection because if refouled to Uganda, she would be at risk of serious harm as she was HIV positive and her condition would rapidly lead to her death. She also claimed that she would be at risk of serious harm from her former partner, Kaggwa, as he had been violent towards her during their relationship.

Oral hearing

10.The applicant requested for an oral hearing of the Leave Application. However, she was absent at the hearing on 11 November 2025.

11.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.

12.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.

Grounds for judicial review

13.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14.The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affidavit dated 15 June 2020.

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any specific ground being advanced.

17.In assessing the appeal by the applicant, the Board arranged an oral hearing on 22 February 2019 and the applicant was present. Thus, the applicant did have the opportunity to present her case to the Board in person.

18.As can be seen from the Board’s Decision, the Board gave very detailed analysis of the applicant’s case. The Board accepted that Kaggwa might have been violent towards her during their relationship. However, they separated in 2013 and she had not seen him since then and had no knowledge of his whereabouts. At the hearing, she could not explain why Kaggwa would seek to harm her so many years later. The Board found that the risk that Kaggwa would seek to harm the applicant were she to return to Uganda to be extremely low, particularly as it was almost seven years (at the time of the Board’s hearing) since they separated.

19.The applicant claimed that she would not be able to receive treatment in Uganda for her HIV infection. However, the Board found from extensive country of origin information (“COI”) that the applicant would have access to appropriate and suitable medication, given that such medication was generally widely available and the majority of those requiring it could access it for free in Uganda.

20.As to the applicant’s fear of harassment due to her being HIV positive, reliable COI indicated that the applicant was likely to experience some form of discrimination or stigma related to her HIV positive status. However, the information also indicated that the situation was improving in Uganda and there were concerted efforts to eliminate stigma and discrimination. The information did not suggest that the applicant would be denied treatment, employment or housing because of her status. The latest stigma survey and information from the United States Department of State indicated that there had been considerable improvements in the societal responses to people living with HIV in Uganda.

21.In the light of the information, the Board considered that the level of discrimination likely to be faced by the applicant upon refoulement, both individually and cumulatively, was not sufficient to rise to the level of persecution as defined in the Refugees Convention to entitle her to non-refoulement protection on the ground of Persecution Risk[1].

22.The medical evidence provided by the applicant that was issued by a Hong Kong hospital indicated that the applicant had been receiving treatment for HIV since 2016. Her viral load was still detectable in March 2019 although her doctors were aiming to bring it down to undetectable levels. The applicant was not in urgent need of medical attention and would not be at imminent risk of death if she returned to Uganda. She would also have access to medical treatment upon return. Thus, the Board concluded that her return would not expose her to harm at the minimum level of severity to constitute a breach of BOR 3 Risk[2], or to a real risk of arbitrary deprivation of life under BOR 2 Risk[3], or to be in danger under Torture Risk[4].

23.Thus, the applicant’s risks on all the applicable grounds under the USM had all been duly considered but rejected by the Board.

24.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

26.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 2^nd day of December 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