Re Ahibafu Jennifer Oluchi and Another
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CACV 1259/2025, [2026] HKCA 1579 On appeal from [2025] HKCFI 6241 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 1259 OF 2025 (ON APPEAL FROM HCAL 2276/2023) -------------------------------------------------------
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___________________ J U D G M E N T ___________________ Hon Barma JA (giving the Judgment of the Court): 1.This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 23 December 2025[1] (“the Leave Decision”) refusing to grant leave for the applicants to apply for judicial review. 2.The intended judicial review in HCAL 2276 of 2023 was lodged by the 1st applicant on behalf of the 2nd applicant (a minor) against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 26 October 2023 (“the Board’s Decision”) dismissing the 2nd applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 February 2023 rejecting the 2nd applicant’s non-refoulement claim. 3.It should be noted that in the hearing below, the 2nd applicant’s leave application in HCAL 2276 of 2023 was heard together with the 1st applicant’s separate leave application in HCAL 2891 of 2019. The leave application concerned their respective intended judicial reviews against separate Board decisions which dealt with their respective non‑refoulement claims. 4.According to the court’s record, upon the 1st applicant’s filing of the Notice of Appeal in the present appeal on behalf of the 2nd applicant, the 1st applicant confirmed with the High Court Registry that the present appeal is being lodged only by the 2nd applicant as against the Leave Decision made by the Judge in respect of HCAL 2276 of 2023, and not as against the Leave Decision in respect of her leave application in HCAL 2891 of 2019. 5.In the circumstances, notwithstanding that the Notice of Appeal appears to bear both the signatures of the 1st and 2nd applicants, we shall treat the present appeal as one which was lodged only by the 2nd applicant as against the Leave Decision reached in HCAL 2276 of 2023. Background 6.The 1st applicant is a national of Nigeria. She is the mother of the 2nd applicant. The 2nd applicant, who is a minor and the daughter of the 1st applicant, was born in Hong Kong on 22 June 2022. The 2nd applicant’s non-refoulement claim (as well as her leave application in the court below and the present appeal) was lodged by the 1st applicant on her behalf. 7.The background to this case, the 2nd applicant’s basis to her claim and the reasons given by the Board in its Decision have been set out therein[2] and summarised by the Judge in the Leave Decision at [24]-[25], which will not be repeated. 8.After considering the documents filed in support of the leave application as well as the oral submissions made by the 1st applicant on behalf of the 2nd applicant at the hearing of the application, the Judge dismissed the application for the reasons stated in the Leave Decision at [21]-[29]. Appeal to this court 9.By a Notice of Appeal dated 31 December 2025, the 1st applicant (on behalf of the 2nd applicant) stated that she disagreed with the Leave Decision as the Judge merely “followed the clarification of the [Board’s Decision] which was incorrect and unreasonable”. She emphasised that it was unsafe for them to return to Nigeria. 10.In the 1st applicant’s written submissions dated 21 July 2026 (lodged on behalf of the 2nd applicant), she submitted that the Judge was wrong as a matter of law “for not having applied the principle of irrationality” to the Board’s Decision and that high standards of fairness were not adhered to. The 1st applicant also repeated the dangers she may face should she be refouled, such as the risk of her being killed by her enemies, but did not appear to have elaborated on what, if any, risks of harm might befall the 2nd applicant should she be refouled. 11.We heard the appeal on 18 August 2026, at which the applicants appeared in person. At the hearing, the 1st applicant handed up some new documents, being reports dated 2019 and 2025 on the “conditions” in Nigeria. As those documents have not been considered by the Judge in the court below, it is inappropriate for this Court to consider them on appeal and we will therefore not take them into account. We will determine the appeal on the basis of the documents filed before the hearing of the appeal as well as the 1st applicant’s oral submissions made at the hearing. Discussion 12.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review. It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. 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. An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 13.In breach of the directions made by the Registrar of Civil Appeals dated 7 January 2026, the 1st applicant (on behalf of the 2nd applicant) only belatedly applied for legal aid and filed the Memoranda of Notification of an Application for Legal Aid on 7 May 2026. The 2nd applicant’s application was in any event rejected by the Director of Legal Aid on 16 July 2026, and her appeal was referred to this court for determination. 14.It is necessary for this court to consider the position of the 2nd applicant separately, as she is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A). See Fabio Arlyn Timogan & Ors v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971. 15.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan & Ors and Re Jasvir Singh & Ors [2021] HKCA 53 which established that:
16.The position is therefore that while it is usual in the majority of cases involving minors for the factual basis of the minor’s claim to be dependent on or even entirely rest upon that of the parent’s, regard must be had to the personal circumstances of the minor (and any risks of harm posed to the minor) by the decision-maker. 17.The 2nd applicant was legally represented by a Duty Lawyer at the hearing before the Board. Her case was that she would be discriminated against by society in Nigeria because she was an illegitimate child born out of wedlock. In addition, the 1st applicant testified at the hearing that she was concerned as to whether the 2nd applicant could receive education or healthcare in Nigeria, and whether the 2nd applicant would be marginalised in school by her classmates by reason of her status (Board’s Decision, [42]). 18.It should be noted that the fear of the 2nd applicant being discriminated or maginalised upon refoulement appears to be separate to and somewhat unrelated to the 1st applicant’s own primary bases for her fear of harm, such as threats from her father’s creditor due to her failure to repay a loan on his behalf, or property related disputes with her paternal uncles (Leave Decision, [7]). 19.Thus in the present case, it cannot be said that, like the majority of similar cases involving minor applicants, the basis of the 2nd applicant’s perceived fear or risk of harm upon refoulement rested or materially rested upon the primary case of her mother’s. The perceived or alleged risk in the 2nd applicant returning to Nigeria essentially pertained to whether she, as a minor born out of wedlock, would be able to suitably adapt to life in Nigeria and whether basic care and benefits would be catered for and provided to her. 20.On this premise, we have considered and subjected the Board’s Decision (which only related to the 2nd applicant’s non-refoulement claim) to anxious scrutiny, and we are of the view that the Board had clearly considered the individual position of the 2nd applicant and did in fact comprehensively analyse the same. Specifically, the Board found, inter alia, that (i) the 2nd applicant may safely return to Nigeria and join the 1st applicant’s family members, who would care for her; (ii) as the 2nd applicant may use her mother’s surname, being a Nigerian national, it was unlikely that the 2nd applicant would be denied access to free education and healthcare in Nigeria; (iii) the provision of the aforesaid benefits by the state would not be dependent upon whether the child is legitimate or illegitimate; (iv) the 1st applicant testified that she would prefer to marry a man on her return to Nigeria because it would provide a better future for the 2nd applicant, which further indicates that the possibility of the 2nd applicant being discriminated against would be low. 21.These findings were open to the Board on the facts and evidence, and were sufficiently canvassed by the Judge at [16]-[29] of the Leave Decision. We see no reason nor basis to interfere. 22.Accordingly, the 2nd applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable. 23.Further, we do not consider there to be any indication that the merits of the 2nd applicant’s claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation. 24.In the premises, the 2nd applicant has advanced no viable grounds of appeal against the Judge’s decision, and her appeal is accordingly dismissed.
The applicants, unrepresented, appearing in person [2] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002891_2019_files/2nd_Board's_Decision.pdf |
Cases cited in this judgment