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BETWEEN
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Mtenga Adley, |
Applicant |
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suing by her mother and next friend, |
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Ogal Belinda Adhiambo |
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and |
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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 Levy:
1. The title of the Form 86 shall be amended by striking out the descriptions of the 1st Applicant and “2nd” to read as Applicant, “Mtenga Adley, suing by her mother and next friend, Ogal Belinda Adhiambo”.
2. The Applicant’s application be dismissed.
Observations for the Applicants:
Introduction
1. This decision should be read together the decision made in HCAL873/2021 (“Mother’s Leave Application”), the applicant in which shall be described as the “Mother”.
2. By “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 23 April 2025, the Mother, on behalf of her daughter (“Daughter”) who was born on 22 March 2021, applied for leave to apply for judicial review (“Daughter’s Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 11 March 2025 (“Board’s Decision”) dismissing the appeal by the Daughter against the decision of the Director of Immigration (“Director”) dated 8 December 2021 (“Director’s Decision”) rejecting her non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL000983_2025_files/the_Board's_Decision.pdf
3. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 at [57]. The Mother at the hearing of the Mother’s Leave Application on 19 March 2026 applied to withdraw her own Mother’s Leave Application as well as the Daughter’s Application. In the circumstances, even though the Daughter’s Leave Application had not been listed for hearing, this court decided to deal with the Daughter’s Leave Application at the same time. Despite the non-compliance with the said requirement of the Rule, this court would treat the non-compliance with the rule as a mere irregularity, and proceed with the hearing: see Fabio (supra). Despite the treatment of the non-compliance as a mere irregularity, I am of the view that the title of the application needs to be amended by striking out the 1st Applicant and the 2nd Applicant from the title to read as follows:
“Mtenga Adley, suing by her mother and next friend, Ogal Belinda Adhiambo”
4. The basis of the Daughter’s claim was that, if refouled to Keyan, she would face the same risks of harm as the Mother’s, which were the risks caused by the Mother’s political rivals. In addition, the Mother also claimed on the Daughter’s behalf that the Daughter, as an illegitimate child, she would face discrimination. In addition, the Daughter would face risks due to her medical conditions. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
5. In [4] and [5] of the Mother’s Leave Application, I have set out the Mother’s evidence given under oath at the hearing regarding the application to withdraw the Mother’s Leave Application as well as the Daughter’s Application. For brevity, I will not repeat them here.
Discussion
6. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 and the supporting affirmation provided no such grounds.
8. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Daughter was represented by a lawyer assigned by the Duty Lawyer Services. The Mother was present before the Board and gave evidence. At the hearing, the Daughter’s claims were premised on the fears that she would be (i) harmed by the unstable political situation in Kenya; (ii) stateless; (iii) discriminated as she is an illegitimate child of a mixed-race; and (iv) unable to get proper medical care due to her disabilities.
9. As for risk (i), the Board did not accept the Mother’s evidence that she was a supporter of the ODM. Hence, the Board found that the political risk faced by the Mother was low, and it would even be lower for the Daughter. For risk (ii), on the basis of the relevant COI, the Board found that the Daughter would not be stateless. In any event, the Mother no longer asserted this risk. Regarding risk (iii) based on the relevant COI, the Board found that the Mother was not able to provide any evidence showing the existence of discrimination due to the illegitimacy or physical disabilities. In any event, even if it existed, the Board found that any such discrimination would not be severe. As for risk (iv), the Board found that the Daughter’s disability was not life threatening or that her life-expectancy would be substantially reduced. Further, the Board, based on the available COI, found that reasonable medical facilities would be available to the Daughter. The Board further found that both state protection and internal relocation would be reasonably available.
10. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles; correctly identified the issues, and observed a very high standard of fairness when independently and separately assessed the Daughter’s appeal. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The Mother has provided no grounds, whether written or oral, to challenge the Board’s Decision on the Daughter’s behalf. I am not satisfied that the Daughter’s Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Withdrawal application
11. Apart from the application to withdraw the Daughter’s Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
12. The title of the Form 86 shall be amended by striking out the descriptions of the 1st Applicant and “2nd” to read as Applicant, “Mtenga Adley, suing by her mother and next friend, Ogal Belinda Adhiambo”.
13. The Applicant’s application be dismissed.
Dated the 10th day of April 2026
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( Alfred CHAN )
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 10/4/2026
Mtenga Adley,
suing by her mother and next friend,
Ogal Belinda Adhiambo
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 10/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19491
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1286/21 (Formerly RBCZ 11204/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1