NALWOOGA ANGELA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 2250/2019 and
HCAL 1199/2020
(Consolidated)

[2026] HKCFI 1419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 2250 OF 2019 AND 1199 OF 2020

(Consolidated pursuant to the Order of
Deputy High Court Judge K.W. Lung dated 28 January 2026)

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicants in open court;

1.  Leave for the 1^st to 5^th Applicants 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 be treated as a mere irregularity without rendering the 2^nd to 5^th applicants’ application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The applicants in these 2 actions are a family. The 2 actions are consolidated.

2.  The 1^st applicant (“A1”) and the 2^nd applicant (“A2”) are in HCAL 2250 of 2019. The 3^rd applicant (“A3”) is in HCAL 1199 of 2020.

3.  The 4^th applicant (“A4”) and the 5^th applicant (“A5”) are not in these 2 action as they were born after the action HCAL 1199 of 2020 was instituted. Represented by their mother, they had also applied to the Director for non-refoulement, and upon dismissal, they appealed to the Torture Claims Appeal Board (“the Board”), which had dismissed their appeals. Their mother applied to join them as parties in these proceedings. Since they are of the same family, relying on their mother’s facts in support of their claim, the Court granted leave.

4.  The consolidated actions will be heard together, with the applicants as follows:

(1)  A1 is the mother (“the mother”)

(2)  A2 is the first son, aged 8 (“the 1^st son”)

(3)  A3 is the second son, aged 6 (“the 2^nd son”)

(4)  A4 is the third daughter, aged 4 (“the 3^rd daughter”)

(5)  A5 is the youngest son, aged 2 (“the youngest son”)

5.  The mother and her children are illegal immigrants. The children were born in Hong Kong.

6.  By Form 86, the applicants jointly apply for leave to apply for judicial review of the Board’s Decisions:           

(1)  Board’s Decision dated 10 June 2019 for A1 and A2 (“the Board’s 1^st Decision”);

(2)  Board’s Decision dated 26 June 2025 for A3, A4 and A5 (“the Board’s 2^nd Decision”)

7.  The mother represented the children and appeared before the Court on 28 January 2026.

The applicants

8.  The applicants are nationals of Uganda.

9.  They lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the mother’s maternal uncle and paternal aunt due to money/property disputes.

10.  Details of the facts are set out in the Board’s 1^st Decision and the Board’s 2^nd Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002250_2019_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002250_2019_files/2nd_Board's_Decision.pdf

The Director’s Decisions and the Board’s Decisions

11.  The Director considered the applicants’ claims in relation to the following applicable 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”).

The Director’s 1^st Decision on the claims of A1 and A2

12.  By way of the Director’s Decision dated 19 October 2018 (“the Director’s 1^st Decision”), the Director assessed A1 and A2s’ claims jointly on all applicable grounds and dismissed their claims on all applicable risks because they were unsubstantiated.

The Board’s 1^st Decision

13.  A1 and A2 appealed the 1^st Director’s Decision to the Board. On 25 March 2019, the Board conducted an oral hearing for their appeals. The mother had given evidence and answered the Board’s questions.

14.  Having considered the evidence, the Board made the findings below.

(1)  It seems that the Board accepted the mother’s facts as alleged.

(2)  The mother was unable to indicate what it was that her aunt and uncle wished to obtain from her. [65 (c )]

(3)  She never sought assistance from the police. [65(d)]

(4)  She was unable to establish that she would face a genuine and substantial risk of any of the applicable risks.

(5)  Internal relocation is viable. [71]

15.  For the reasons above, the Board dismissed their appeal and confirmed the Director’s 1^st Decision.

The Director’s 2^nd Decision on A3, A4 and A5

16.  The Director considered the claims of A3, A4 and A5 on the applicable risks. By respective Decisions dated 18 December 2019 (A3), 15 June 2022 (A4) and 19 August 2024 (A5), collectively called (“the Director’s 2^nd Decision”), the Director refused their claims on all the applicable risks because they were unsubstantiated.

The Board’s 2^nd Decision on A3, A4 and A5

17.  A3, A4 and A5 appealed the Director’s 2^nd Decision to the Board. The Board conducted hearings on 4 October 2023 and 12 November 2024. A3, A4, A5 and the Director were legally represented before the Board.

18.  The Board bore in mind the decisions in relation to child specific issues as decided by the Court of Appeal in Fabio Arlyn Timogan [12]. The Board had summoned the children’s parents before it for enquiry. Having considered the evidence and legal submissions, the Board made the findings below:

(1)  There are laws in Uganda to protect the applicants’ rights under civil law. [117]

(2)  There was no evidence to show that the children would face any genuine risk of harm from the mother’s relatives, and if they live in places outside the mother’s locality, the mother’s relatives would have no means to locate them. [122]

(3)  There was no evidence that the children are at risk of any proscribed forms of harm by the victim’s family because of their father’s acts of killing a victim. [125]

(4)  As to the parents’ claim that the children would be at risk of child abuse or abduction, the Board found that it is only their speculation. [130]-[144]

(5)  The children would not be disadvantaged on the basis of language should they be returned to Uganda. [146] They would live a normal life with support of their parents’ families. [154]

(6)  There was no evidence that the children will be subjected to any of the applicable risks if they return to Uganda. On such basis, the Board dismissed their appeals and affirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review

19.  The applicants filed Forms 86 respectively on 7 August 2019 and 16 June 2020 for leave to apply for judicial review of the Board’s Decisions.

20.  In support of their applications, the mother has not raised any specific ground to challenge the Board’s Decisions.

DISCUSSION

21.  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 Decisions on the applicants’ appeals. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the mother confirmed that she had given full instructions in relation to her children to the duty lawyer in their appeals before the Board.

23.  It is apparent that although A1 and A2 were not legally represented before the Board. A3-A5 were legally represented by a duty lawyer and their cases are the same as the case of A2. In the Board’s 2^nd Decision, the Board had taken into consideration of the child specific issues as raised by the Court of Appeal in Fabio Arlyn Timogan.

24.  I am satisfied that the children’s cases had been fairly considered by the Board with advanced standards of fairness.

25.  I consider that the applicants do not have any reasonable prospect of success in their intended judicial review of the Board’s Decisions.

26.  The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

27.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions or any one of them. Accordingly, I dismiss their joint applications.

28.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering A2-A5s’ applications a nullity.

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