Salum Nawal Hamid Acting As the Next Friend of Nguya Intysaar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Case No.HCAL 835/2023[2026] HKCFI 5307
Court
High Court CFI
Date23 Sep 2026
Judge—
Case Document
100%

HCAL 835/2023
[2026] HKCFI 5307

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

Salum Nawal Hamid acting as the next friend of
Nguya Intysaar
Applicant
and
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent
and
Director of Immigration Putative Interested Party

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 Applicant 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 RHC 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 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.
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000835_2023_files/the_Board's_Decision.pdf

The Director’s Decision

9.The Director considered the applicants’ claims 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”).

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


(Allen LEE)
for Registrar, High Court

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




Notes for the Applicant:

If leave has been granted, the Applicant or the Applicant’s solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
Sent to the Applicant
on 23/9/2026

Salum Nawal Hamid acting as the next friend of Nguya Intysaar
Applicant’s ref. no:
Nil.
Sent to the Putative Respondent
/ the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/9/2026

Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17821
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/2565/20 (CZ)

Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)



Form CALL-1

Summaries and metadata are generated from the judgment. Report an error

Related Cases
Ranked by citation overlap · cases that cite each other appear first

Onyekwelu Chidubem Christopher v. Director of Immigration

HCAL 1346/2022 · Court of First Instance
21 Oct 2026
2 shared citations
Full analysis

Mobarok Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1925/2025 · Court of First Instance
28 Oct 2026
2 shared citations
Full analysis

Mohammed Arif Mirdha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1332/2022 · Court of First Instance
28 Oct 2026
2 shared citations
Full analysis

Hoque Md Akramul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1280/2022 · Court of First Instance
28 Oct 2026
2 shared citations
Full analysis