Muyingo Peter v. Torture Claims Appeal Board

HCAL 780/2021

[2026] HKCFI 2210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 780 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Uganda who last arrived in Hong Kong on 23 November 2019 as a visitor with permission to remain as such up to 23 December 2019 when he did not depart and instead overstayed, and on 9 January 2020 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Uganda he would be harmed or killed by his friend over their land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Masaka, Uganda.  After leaving school he traded in garments business in his home district to make his living.

3.In 2008 he together with his friend Brian jointly purchased a piece of land in his home district in equal share but without any formal documents to show their ownership, and that afterwards they just left the land there, but in 2010 the Applicant sold the land for money to repay his debts without informing Brian, and when Brian later in February 2011 found out about the sale, he became furious and demanded the Applicant to return the land to him or else there would be serious consequences, of which the Applicant understood to be a threat to harm or kill him, and so he avoided any further contact with Brian by going into hiding in some hotel or in another friend’s place.    

4.Later in 2011 when he heard that Brian was still looking for him everywhere with threats to kill him, the Applicant decided that it was no longer safe to remain in Uganda, and so in October 2011 he departed for Kenya and Tanzania before arriving in China in November 2011 where he remained for several years, during which he also made frequent trips to Hong Kong. 

5.On his last trip to Hong Kong on 23 November 2019, as the Applicant still feared of being harmed or killed by Brian if returned to Uganda, he therefore overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 April 2020 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 15 July 2020 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 his 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”).

7.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 his friend Brian upon his return to Uganda as low due to the absence of or low intensity and frequency of past ill-treatment from Brian, that there is no evidence of any real intention of Brian to seriously harm or kill him other than just angry words and empty threats, that in any event it was a private land dispute between just the 2 of 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 43 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 his home district in large cities such as Kampala or Gulu where it would be difficult if not impossible for Brian to locate him.

8.On 29 July 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 5 May 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 18 May 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1] the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from a friend over some land dispute that caused him to leave his country for years and to eventually come to Hong Kong to seek protection, that there was no reliable evidence or plausibility of any purchase of any land by the Applicant with any friend in equal share but without any ownership documents, and then just left it there without doing anything and that the Applicant could just sell the land later by himself without informing or involving his friend, that such assertions were totally conflicted with relevant COI on land transactions in Uganda that the Board concluded that all the core assertions had been fabricated by the Applicant for the purpose of his non-refoulement claim, and that in any event on the factual basis of even his own case that it was a private dispute between the Applicant and his friend Brian only but without any reliable evidence of any real threats from Brian other than the Applicant’s own speculations, and in the absence of any real and actual risk of harm from Brian or anyone upon his return to Uganda that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

10.On 27 May 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such, and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge of the Board’s decision.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as relevant COI on land transactions in Uganda, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Uganda, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.In the premises, and 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.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, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 21^st day of April 2026

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