CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1855 of 2020
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BETWEEN
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Nalugo Penny acting as guardian
for Jallow Alhagie Ousman
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Applicant |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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 K.W. Lung:
1. Leave to apply for Judicial Review be refused; and
2. Non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the applicant’s application a nullity.
Observations for the Applicant:
THE APPLICATION
1. This case should be considered together with HCAL 1670 of 2019 because the applicant in that case is the mother of the applicant (“the son”), aged 7, in this case. The son’s claim relies on the mother’s facts. The mother is acting as guardian ad litem for the son.
2. The applicant applies for leave to apply for judicial review of the Decision dated 4 August 2020 of the Torture Claims Appeal Board (“the Board’s Decision).
3. The mother appeared before the Court on 28 January 2026.
The applicant
4. The applicant is a national of Uganda. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his mother’s step-mother.
5. Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001855_2020_files/the_Board's_Decision.pdf
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
c. 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
d. 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”).
7. By way of the Notice of Decision dated 26 November 2019 (“Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 3 July 2020, the Board conducted an oral hearing for him. The mother had given evidence and answered the Board’s questions.
9. Having considered the evidence, the Board held that the mother’s claim failed on the facts of the case. The Board found that the applicant failed to establish any of the applicable risks. Furthermore, the Board found that state protection will be provided if he returns to Uganda with his mother. [32] Internal relocation is viable. [44]-[47]
10. For the above reasons, the Board dismissed his appeal and affirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 16 September 2020 for leave to apply for judicial review of the Board’s Decision.
12. The applicant’s mother has raised the grounds below to challenge the Board’s Decision.
(1) The Board had unlawfully fettered its discretion.
(2) The Board had acted in a procedurally unfair manner.
(3) The Board’s Decision is unreasonable.
(4) The Board failed to meet greater care to a self-represented claimant.
(5) The Board did not give a fair chance for the mother to make submissions.
(6) The Board had relied on source of news which is outdated or simply hearsay and outdated case, resulting in it making groundless speculations that if is safe for him to return to his country.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the mother said that the Board did not understand her problem well as her son has no family in Uganda. Her other son in Uganda had been killed. She said that she could not take the risk.
15. 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.”
16. The grounds raised in paragraph 12 are bare assertions without any evidence in support. They are not valid to challenge the Board’s Decision[1].
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
19. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the son’s application a nullity.
Dated the 3rd day of March 2026
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 3/3/2026
Nalugo Penny
acting as guardian
for Jallow Alhagie Ousman
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16563/19/12/29/U134
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 866/19 (Formerly RBCZ 10625/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”