Nazziwa Winnifred v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 386/2026, [2026] HKCA 1139

On Appeal From [2026] HKCFI 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 386 OF 2026

(ON APPEAL FROM HCAL NO. 2376 OF 2025)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 1 April 2026[1] refusing her application for leave to apply for judicial review against the decision dated 8 October 2025 of the Torture Claims Appeal Board (“the Board”).[2]  The Board dismissed her appeal against the decision dated 8 February 2017 of the Director of Immigration (“the Director”) which had in turn rejected the applicant’s non-refoulement claim having regard to the torture risk,[3] BOR 3 risk,[4] persecution risk[5] and BOR 2 risk[6] grounds. 

Background

2.The applicant is a national of Uganda born in 1986.  She last arrived in Hong Kong on 28 March 2014 as a visitor and was allowed to remain until 4 April 2014.  On 3 April 2014, she was arrested by the police and was convicted of the offences of soliciting for an immoral purpose and breach of condition of stay by taking up unapproved employment.  She was sentenced to two months’ imprisonment.  On 13 May 2014, she was discharged from prison and was transferred to the Immigration Department, where she lodged a non-refoulement claim on the same day.  

3.The basis of her claim was that she feared being harmed or killed by her ex-boyfriend Festus Dhiliga (“Festus”) if she were to return to Uganda, as she had allegedly used Festus’s land title deed as security for a bank loan without his consent to expand her garment business, but the business failed and she defaulted on the loan in 2012.  She claimed to be physically assaulted by Festus when he discovered that she had used his land title deed for the loan.  Details of the applicant’s background, the basis of her claim and the Board’s reasons for rejecting her appeal have been set out in the Board’s decision.[7]  We will not repeat them.

4.By a Form 86 filed on 23 October 2025, the applicant applied for leave to judicially review the Board’s decision.  She did not identify any specific ground of judicial review in her Form 86 or supporting affirmation.  The Judge dealt with the application on the papers.  He refused her application on grounds that the intended challenge had no realistic prospect of success.  His reasons are set out in [14] to [18] of the Form CALL-1 dated 1 April 2026.  We will not repeat them.

Appeal to this Court

5.On 13 April 2026, the applicant filed a Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were that she disagreed with the court’s decision as it did not scrutinize her claim properly.  She added that the court and the Board rejected her claim despite the severe problems in her home country, and that she would be killed by her enemies upon return.  No specific error of law, procedural unfairness or irrationality was identified in either the Board’s decision or the Judge’s decision. 

6.As the applicant did not lodge any written submissions, the scheduled hearing of her appeal was vacated pursuant to the directions of the Court.  We therefore determine the appeal on the basis of the available documents and materials.

Discussion

7.In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.In the present case, the Board gave the applicant the benefit of the doubt and accepted that she obtained a loan through a corrupt bank officer and that she was physically assaulted by Festus.  However, the Board did not accept that the bank had seized Festus’s house as the applicant’s evidence was evasive and unconvincing.  More importantly, the Board found that Festus did not intend to inflict serious harm on her, as he never pursued her or her family after she fled to her parents’ home.  The Board observed that it was implausible that Festus would kill the applicant as that would eliminate any chance of her compensating him for the alleged losses.  Further, the applicant’s conduct was found to be inconsistent with a person in genuine fear of imminent harm; she used available funds for extended travel without seeking protection instead of repaying the loan or compensating Festus, and only claimed non-refoulement protection after being arrested in Hong Kong for solicitation and breaching stay conditions.  Regarding state protection, the Board assessed on the basis of the COI that while police corruption exists in Uganda, the country has adequate laws and anti-corruption mechanisms and entities in place such that the applicant could access these protections if needed.  As the applicant’s evidence did not demonstrate a real risk of proscribed harm even if she returned to her home area in the vicinity of Kampala or even in Jinja, the Board found that it was not necessary to consider the question of internal relocation.  The Board thus concluded that the applicant had failed to satisfy the requisite threshold entitling her to protection under any of the applicable grounds.

10.These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  In her application for leave to apply for judicial review, the applicant had not pointed to any specific error in the Board’s findings or reasoning.  The applicant had failed to show any reasonably arguable public law error in relation to the Board’s decision.

11.In this appeal, the complaints that the Board rejected her claim despite severe problems in her home country are no more than vague and general assertions without engaging with the reasons of the Board in rejecting her evidence and claims.  Further, the complaints levelled against the Judge’s decision are misplaced when it is not the Judge’s role in judicial review proceedings to consider the applicant’s claim afresh and also in light of the applicant’s failure to advance any ground to support her intended judicial review.  The applicant had failed to demonstrate with particulars any error in the reasoning of the Judge or advance any viable ground of appeal against the Judge’s decision.  There is no proper basis for us to disturb the Judge’s decision. 

12.Accordingly, we dismiss the appeal.

The Applicant acted in person.

[1]    [2026] HKCFI 1701

[2]    The Board’s decision was a re-assessment of the applicant’s non-refoulement claim by Order of the Court dated 3 April 2024 which granted the applicant’s application for judicial review in HCAL 1286/2019; [2024] HKCFI 856.

[3]    This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4]    This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]    This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[6]    This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.