Malugu Johani Emmanuel Acting the Next Friend of Malugu Faheem Said Hussein Mourad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1554/2022

[2026] HKCFI 4311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1554 of 2022

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 Applicants being absent in open court;

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 be treated as a mere irregularity without rendering the Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.The 1^st named is the mother (“The mother”) of the 2^nd named, the applicant, born on 20 January 2020. The applicant applies for leave to apply for judicial review of the Decision dated 23 November 2022 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant and the mother were absent at the hearing on 15 July 2026. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party, and the mother is acting as the next friend of the applicant.

The applicant

4.The applicant is a national of Tanzania by descent of the mother. He is an illegal immigrant. Acting by his mother, he lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the mother’s enemies, who claimed to be the creditors of mother’s husband in Tanzania.

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/2022/HCAL001554_2022_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 Notice of Decision dated 17 August 2020 (“the 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 19 September 2022, the Board conducted an oral hearing for his appeal. The mother had attended the hearing. She had given oral evidence and answered the Board’s questions.

9.Having considered the evidence, the Board found that the mother’s alleged fear is not acceptable for the reasons stated. See paragraph 24 of the Board’s Decision. The Board further found that the applicant’s claim should be dismissed. In any event, internal relocation by the mother is viable. [45]

10.For the reasons above, 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 filed Form 86 dated 21 December 2022 for leave to apply for judicial review of the Board’s Decision.

12.The mother has raised the grounds below to challenge the Board’s Decision.

(1)  The Board’s Decision is unreasonable or irrational in public sense or is as a result of procedural errors or unfairness.

(2)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(3)  The Board did not consider BOR 2 risk properly.

(4)  The Board relied on source of news not officially recognized, or it is simply hearsay, or on outdated authorities.

(5)  The Board failed to consider all circumstances of the case.

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 Decision should be examined with rigorous examination and anxious scrutiny.

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 reasons under paragraph 12 are bare assertions or the mother’s opinions without any evidence in support. They are not valid to challenge the Board’s Decision. This is a separate assessment of the applicant’s claim. The mother has not raised any child-specific issue for the Board’s consideration. The Court does not see any child specific prejudice to the applicant if he returns to Tanzania with his mother. There is no reason for this Court to interfere with the Board’s Decision.

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 applicant’s application a nullity.

Dated the 5^th day of August 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

Form CALL-1