Luwagga Isma v. Torture Claims Appeal Board
Read the full judgment text of HCAL 321/2021 on BabelCite. This High Court CFI judgment was delivered on 21 July 2026.
1. By way of Form 86 dated and filed on 10 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 February 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
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HCAL 321/2021 [2026] HKCFI 4099 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 321 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 10 March 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 February 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 18 September 2018, which rejected the applicant’s non-refoulement claim. The applicant’s case 3.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. 4.In sum, the applicant claimed for non-refoulement protection because if refouled to Uganda, he would face a real risk of serious harm or death at the hands of the government of Uganda for reason of his involvement as a royal guard of Rwenzururu Kingdom, or at the hands of a rebel group called Kirumira Mitima (“the rebel group”) for reason of betraying the rebel group. Oral hearings 5.The applicant requested for an oral hearing of the Leave Application and his case was first heard on 20 January 2026. 6.However, the applicant indicated at the hearing that his English was not good, and his first language is Luganda. Thus, the hearing was adjourned to arrange a qualified Luganda interpreter to assist the applicant. 7.At the resumed hearing on 2 July 2026, the applicant confirmed that he could communicate meaningfully with the assistance of the interpreter. 8.When this court asked him to elaborate on the grounds for his intended judicial review which were laid out in a document attached to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, as well as the grounds stated in his supporting affirmation dated 10 March 2021, the applicant merely said that he felt that the Board did not examine the evidence he gave them and there were a lot of uncertainties. He added that he had news that the government was looking for him, as his colleague had given him in, and hence he was fearful. He asked this court to look into this matter and what was going on in his country because if he were to return, he would be arrested at the airport. 9.However, the applicant said that he received the news from a colleague who called him on 26 November 2025, ie after the Board’s Decision was made. The news was therefore not placed before the Board for assessment and that was why the applicant wanted this court to review his case and look very carefully into the situation in that people opposing the government were in danger. Grounds for judicial review 10.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). 11.The applicant annexed a document to his Form 86 with the title “GROUNDS ON WHICH RELIEF IS SOUGHT”, which contained some general grounds for the intended judicial review. In that document, the applicant also advanced some more grounds under the heading “Background of the Applicant”, which bore essentially the same contents as stated in his supporting affirmation dated 10 March 2021 under the heading “Factual Background”. The applicant basically complained that he was denied of a hearing for his appeal, and that the Board had relied on sources of news which were not officially recognized, or were hearsay or outdated. 12.The contents as stated in the above-mentioned documents were in fact used by many applicants in similar applications as their grounds for applying leave to judicially review the Board’s decisions. It seems that the applicant had combined these standard grounds and used them without any regard to his own situation. Nevertheless, as the applicant is relying on those grounds to make the Leave Application, this court will still deal with the grounds as discussed below. 13.As aforesaid, at the oral hearing on 2 July 2026, the applicant alleged that he heard a news that a colleague had given him in, and he asked this court to re-assess his claim and look into his case again. Discussion 14.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. 15.Thus, the general assertions put forward by the applicant in the document titled “GROUNDS ON WHICH RELIEF IS SOUGHT”, which merely contained “key words” such as the Board was “in breach of procedural fairness”, had “unlawfully fettered his discretion”, the Board’s Decision was unreasonable and irrational, or that the Board “failed to meet the greater care and duty owed to a self-represented claimant”, cannot help the applicant at all. 16.His accusation that he was not given a fair opportunity to keep forward his submissions in an oral hearing was completely unfounded and plainly untrue. In assessing his appeal/petition, the Board held an oral hearing on 12 November 2020 and the applicant was present and legally represented. Hence, the applicant was given the opportunity to present his case to the Board through his legal representative. 17.The applicant also failed to identify which pieces of news or cases that the Board relied on were not officially recognized, or were hearsay or outdated. Contrary to the applicant’s accusation, this court finds that the Board had clearly identified the source of all country of origin information (“COI”) that it referred to in the Board’s Decision. 18.Thus, this court finds that none of the grounds asserted by the applicant constitutes a valid ground to challenge the Board’s Decision. 19.The news that the applicant obtained after the Board’s Decision was made cannot help him either. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 20.Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim based on matters that had not been presented to the Board. 21.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). 22.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 valid ground being advanced by the applicant for the intended judicial review. 23.The Board had laid out its detailed consideration of the two aspects of the applicant’s claims, namely his future risk for reasons of his role as a royal guard and his involvement in the rebel group, in paragraphs 82 to 88 and paragraphs 89 to 93 of the Board’s Decision respectively. It is clear to this court that the Board had carefully considered the applicant’s evidence but rejected his claims. 24.In gist, the applicant’s core claims regarding his risk from the Ugandan government due to his role as a royal guard were rejected. The Board did not accept that: (1) the applicant had any active role in the defence or fighting with the government forces; (2) the applicant would be prosecuted as one of those who were involved in fighting the government forces or in the looting and attacks on police stations that occurred before the attack on the palace; and (3) the applicant was a person of any interest or a person who was suspected of involvement, such that he would face a real risk of arrest, or a real risk of being harmed by the government authorities. 25.Moreover, while the Board accepted some of the reports in the COI which indicated that abuse of power could occur in Uganda, and that the law enforcement agencies there might be limited and might be affected by corruption, the Board did not find the weight of those COI justified a conclusion that the rule of law did not apply in Uganda, or that the applicant would necessarily be denied a fair trial if he was in fact charged with an offence. The Board also found COI indicating that royal guards who were present at the palace at the time of the attack had been encouraged to turn themselves in and would be granted amnesty. There was no evidence to indicate that the applicant, in all his circumstances, would not be able to avail himself of the amnesty. 26.With regards to the applicant’s claimed involvement in the rebel group and the related claims that he was chosen to sell looted gold in the black market, assigned with the complex tasks of travelling to China for weapons acquisition and subsequently lost the money in gambling in China, the Board found that the entire story of his purported role in guns/weapons purchase had been concocted, as had been the claim that he lost money by gambling. The Board believed that it was a concoction aimed at explaining the absence of the money. 27.Hence, the Board found that the applicant was not told by his friend Abdu Khalim, or anyone else, that the rebel group considered that he betrayed them, or that they would kill him on his return to Uganda, and the Board rejected that the rebel group or anyone else reported the applicant to the Ugandan government, the applicant’s home had been raided by the Ugandan security authorities and that they acquired personal property which the applicant implied would link him to his activities as a royal guard. 28.The Board was also satisfied that the applicant’s smooth passage through Entebbe airport on departing Uganda occurred because the applicant was not a person of any adverse interest either as a member of the royal guard, or as a member of the rebel group. 29.The Board found that the applicant was not an active opponent of the Ugandan government, and took no real action to demonstrate that he was an opponent of the government. His danger from the rebel group was also rejected in its entirety. Thus, the Board considered that there was not a real risk that the applicant would face any of the proscribed forms of harm should he return to Uganda now or in the reasonably foreseeable future. 30.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicant was not at a real risk of any of the proscribed forms of harm. 31.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755). 32.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm either from the Ugandan government or from the rebel group, it is not necessary for the Board to consider internal relocation. 33.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. 34.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. 35.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 36.For reasons aforesaid, the Leave Application is dismissed. Dated the 21st day of July 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
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Cases cited in this judgment