Re Nalugo Penny Acting As Guardian for Jallow Alhagie Ousman

CACV 248/2026, [2026] HKCA 1712

On Appeal From [2026] HKCFI 1268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2026

(ON APPEAL FROM HCAL NO 1855 OF 2020)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 3 March 2026 ([2026] HKCFI 1268) (“the Leave Decision”) dismissing his application for leave to apply for judicial review (“the Leave Application”) against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 August 2020, whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 26 November 2019 (“the Director’s Decision”), refusing his non‑refoulement claim.

2.The applicant is a national of Uganda and a minor.  His mother (“the Mother”) lodged the non-refoulement claim on his behalf as his guardian ad litem.  As noted by the Judge at [1] of the Leave Decision, the applicant’s claim was premised on the Mother’s facts, raised in support of her separate non-refoulement claim, which had previously been separately dismissed by the Director and the Board.[1]

3.In brief, the basis of the applicant’s non‑refoulement claim is, if refouled, he would be harmed or killed by the Mother’s stepmother.  His background, the basis of his claim and arguments advanced before the Board as well as the Board’s reasons for rejecting his appeal are all set out in the Board’s Decision[2]: see [4] ‑ [10] of the Leave Decision.  The Judge has set out his reasons for refusing the Leave Application at [11] ‑ [19] of the Leave Decision.  We will not repeat the details herein.

4.By the Notice of Appeal filed on 16 March 2026 by the Mother acting on behalf of the applicant, the applicant complained that the Director failed to give importance to the presence of state acquiescence in the applicant’s case and had adopted an unfair reading of the relevant Country of Origin information.  He also submitted that the Board and the Judge had failed to make sufficient enquiry before finalising the determination and did not give sufficient chance to him to arrange for relevant evidence to support his non-refoulement claim and appeal.  He further submitted that the Director, the Board and the Judge had failed to take such arguments into account or give sufficient weight to such arguments.

5.In support of his appeal, the Mother also lodged written submissions on behalf of the applicant on 10 August 2026.  In those submissions, the applicant recited various case authorities on the high standards of fairness and procedural fairness without condescending upon particulars as to how they are relevant to his individual case.

6.Pursuant to the directions of the Registrar of Civil Appeals made on 24 July 2026 (“the Directions”), the hearing of his appeal was scheduled to be heard before this court on 2 September 2026.  Paragraph 6 of the Directions also states that if the applicant fails to attend the oral hearing, the applicant will be deemed to have waived his right to the requested oral hearing, and the court will proceed to consider the appeal on its merits on the basis of the materials before it.  The Directions were communicated to the Mother via a letter from the court dated 24 July 2026 and sent by post to the applicant’s last known address as provided by the Mother.  This letter was not returned undelivered by the Post Office.

7.However, the Mother and/or the applicant failed to attend the oral hearing on 2 September 2026.  In the circumstances, pursuant to paragraph 6 of the Directions, we will proceed to consider and determine his appeal on paper.

DISCUSSION

8.The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court’s role is not to examine the decision maker’s decision afresh as if it were a fresh application for judicial review.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)].

10.On 17 March 2026, the Registrar of Civil Appeals directed that a guardian ad litem of a minor claimant must act by a solicitor.  However, the Mother failed to comply with those directions and no further steps have been taken on the applicant’s behalf to comply with Order 80, rule 2 of the Rules of the High Court (Cap 4A) (“the RHC”) for the appointment of next friend.[3]  Notwithstanding this, the applicant’s appeal may be allowed to stand as the Court has a discretion under Order 2, rule 1 of the RHC to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at [27].

11.The court’s basic approach in relation to the assessment of a minor’s non-refoulement claim is well settled:

(1)  Non-refoulement claim by a child is a separate claim from the claims made by his/her parents.  In principle, the decision‑maker should consider each claim by reference to the personal circumstances of each claimant.

(2)  Even if the claims are based on the same set of primary facts, it would be an error of law if the decision-maker simply decides all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim of a parent that his/her child’s claim should also be dismissed without further consideration of his/her personal circumstances.

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

(4)  When dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non-refoulement claim, the court should pay special attention to examine, in the context of the high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which have not, or have not properly, been advanced to the Board because of the absence of legal representation.

See Re Jasvir Singh [2021] HKCA 53, [30] ‑ [31], following Fabio Arlyn Timogan [2020] HKCA 971, [34].

12.At the outset, it is not apparent from the Leave Decision that the Judge was aware of or had applied the above legal principles regarding the assessment of a minor’s non-refoulement claim when dealing with the applicant’s non-refoulement claim.  In our view, on the face of the Leave Decision, it appeared the Judge had erred in law in failing to consider whether there exist matters that may support potential minor-specific non‑refoulement bases which have not, or have not properly, been advanced to the Board because of the absence of legal representation.

13.That said, we however noted that it was the applicant’s position before the Board that his claim was made on the same basis as the Mother’s: see [17(i)] and [19] of the Board’s Decision.  We also do not see any underlying materials in the present case that may give rise to a concern that there may be any non-refoulement grounds which relate specifically only to the applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.  Further, as the Board considered the applicant’s claim individually on a separate occasion, we are satisfied that the Board had considered the applicant’s case separately and independently.  In those circumstances, notwithstanding the Judge’s error, having considered all the materials before us, we nevertheless come to the view that the applicant’s intended judicial review is not reasonably arguable.

14.In relation to the other grounds presently raised by the Mother on behalf of the applicant in the present appeal, they have no substance.  Her complaints are all directed at the Director and the Board and are in any event general and vague without specific particulars.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].

15.As the Court of Appeal held in Re Rina Mulyani [2021] HKCA 1156, at [25], if the Court is satisfied that the Board achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support a minor-specific non-refoulement ground, it is open to the Court to conclude that the minor’s intended judicial review of the Board’s decision is without merit.  We are satisfied that this is the situation in respect of the applicant’s claim in the present case.  We see no basis to interfere with the Leave Decision.

16.For the above reasons, the appeal has no merit and we dismiss it.

17.For the avoidance of doubt, we shall treat the 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.

The applicant acting in person, absent