Salum Nawal Hamid Acting As the Next Friend of Nguya Intysaar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office
|
HCAL 835/2023 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 835 of 2023 BETWEEN
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 K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The 1st named is the mother (“the mother”) of the 2nd named, the daughter of 5 years old (“the daughter”) born in Hong Kong. 2.The daughter’s claim relies on the mother’s claim. The mother had applied for non-refoulement protection. The Director of Immigration (“the Director”) refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”), which dismissed her appeal. She applied to the Court of First Instance for leave to apply for judicial review of the Board’s decisions. The Court of First Instance refused her application. She appealed all the way to the Court of Final Appeal and she is still waiting for the result. 3.The mother should, therefore, be the next friend of the daughter and Form 86 should be amended accordingly. 4.The mother acts for the daughter to apply for leave to apply for judicial review of the Decision dated 7 March 2023 of the Torture Claims Appeal Board (“the Board’s Decision”). 5.The mother appeared before the Court on 7 September 2026. The applicant 6.The daughter is a national of Tanzania. 7.The mother lodged a non-refoulement claim for the daughter on the basis that if refouled to Tanzania with her daughter, the mother will be harmed or killed by her aunt and/or uncle because she has converted to Christianity from Muslim faith. The daughter will be unduly affected. 8.Details of the facts are set out in the Board’s Decision.
See hyperlink. The Director’s Decision 9.The Director considered the applicants’ claims in relation to the following risks:
10.By way of the Director’s Decision dated 23 March 2021 (“the Director’s Decision”), the Director assessed the daughter’s claim and dismissed her claim on all applicable risks because it was unsubstantiated. The Board’s Decision 11.Acting by the mother, the applicant appealed the Director’s Decision to the Board. On 15 October 2021, the Board conducted an oral hearing for the appeal. The mother had given evidence and answered the Board’s questions. 12.Having considered the evidence, the Board, bearing in mind of the Court of Appeal’s decision in Fabio Arlyn Timogan, found that there was no evidence that the mother’s aunt has the intention to harm or kill the mother because of her change of religious belief [181] & [182]; state protection will be available to the mother and the daughter if they return to Tanzania [196]; that an organization named National Child Helpline may render assistance to the mother [197]; internal relocation to cities such as Mwanza or Arusha is viable [222] & [283]. 13.For the reasons above, the Board dismissed their appeal and confirmed the Director’s Decision. Application for leave to apply for judicial review 14.The applicants filed Form 86 on 20 May 2023 for leave to apply for judicial review of the Board’s Decision. 15.In support of the daughter’s application, the mother said in her affirmation that the Board’s Decision errs in law, without state what the error is. DISCUSSION 16.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, on the question if she considered that the Board’s Decision was wrong, she said that the Board’s Decision was not wrong. 18.I consider that there was no child specific issue, which was not submitted to the Board for its consideration because of lack of legal representation for the daughter. Also, I find that there is no error of law, procedural unfairness or irrationality in the Board’s Decision. 19.In the circumstances, I consider that the daughter does not have any reasonable prospect of success in her intended judicial review of the Board’s Decision. DISPOSITION 20.I refuse to grant leave to the daughter to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. 21.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity. Dated the 23rd day of September 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 |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment