RE NUPUR MST AND ANOTHER

CACV 346/2024, [2025] HKCA 583

On Appeal From [2024] HKCFI 2111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 346 OF 2024

(ON APPEAL FROM HCAL NO. 1517 OF 2023)

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J U D G M E N T

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

I. The appeal

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Bruno Chan given on 15 August 2024 refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  of 10 August 2023.  The Board dismissed their appeal against the decision of the Director of Immigration (‘the Director’)  of 25 June 2021 which refused their non-refoulement claims.

II.  The applicants’ claim

2.  The applicants are members of a family.  The 1^st applicant is the mother of the 2^nd applicant son.  They are both nationals of Bangladesh.  The 2^nd applicant was born in Hong Kong[1] in July 2019 from a relationship between the 1^st applicant and a Bangladeshi man in Hong Kong.[2] 

3.  On 26 October 2013, the 1^st applicant arrived in Hong Kong as a domestic helper.  In July 2014, the 1^st applicant’s employment contract was terminated, and she overstayed.  She raised her non-refoulement claims in September and 23 October 2015[3] and on 5 January 2016 she detailed her claim in a non-refoulement claim form.

4.  The 1^st applicant’s claims of torture, persecution and BOR 3 risk were detailed in her non-refoulement claim form in January 2016, which was refused by the Director in April 2016.  The 1^st applicant’s BOR 2 risk was also assessed and rejected in March 2017.  The Board on 23 June 2017 refused the 1^st applicant’s appeal on all applicable grounds without a hearing[4].

5.  The 2^nd applicant applied for non-refoulement by written signification in June and July 2020, and in February and March 2021[5].  The claim by the 2^nd applicant was made together with further claims by the 1^st applicant.

6.  The Director rejected the applicants’ claims on 25 June 2021.  On 5 July 2021, the applicants lodged notice of appeal to the Board[6]. The Board heard the appeal in September 2022 and rejected their appeal/petition on 10 August 2023.

7.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by their family members and the Muslim society because the 1^st applicant gave birth out of wedlock.  The 1^st applicant also fear that her son will be harmed or killed by the Awami League[7] because she is a supporter of a rival party. 

8.  The details of the applicants’ claims are set out at [1] to [15] of the Board’s Decision, and at [1] to [3] of the Judge’s Decision. 

III.  The Director’s Decision

9.  The Director decided against the applicants’ non-refoulement claims on 25 June 2021.   The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights (‘BOR 2’)  Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

IV.  The Board’s Decision

10.  The applicants appealed to the Board against the Director’s Decision.  An oral hearing was held on 26 September 2022 during which the 1^st applicant testified for herself and on behalf of the 2^nd applicant as he was too young to be heard. The 2^nd applicant relied on his mother’s case of non-refoulement. By a decision dated 10 August 2023, the Board dismissed the appeal.

11.  The summary of the Board’s Decision is set out at [7], [10], [14] of the Judge’s Decision.  It held that the 1^st applicant had invented or significantly exaggerated much of her account: see Board’s Decision at [114].

V.  The Judge’s Decision

12.  By a letter dated 16 February 2024, the Court below advised the 1^st applicant that since the 2^nd applicant was a minor, she should seek independent legal representation for the 2^nd applicant by legal aid or private solicitors[8].  More than three months had lapsed and the 1^st applicant took no steps.  A notice of hearing was issued in June 2024 for the case to be heard in July 2024.  Having considered the merits of the case, the Court on 15 August 2024 held that the absence of legal representation for the 2^nd applicant was a mere irregularity.  The Board had separately considered the son’s non-refoulement claim[9].  The Judge held that the applicants had not advanced any grounds for judicial review in their Form 86 or affirmation[10].  Relocation was possible[11].

VI.  This appeal

13.  On 23 August 2024, the 1^st applicant (on behalf of herself and the 2^nd applicant)  filed a notice of appeal.  The notice of appeal stated :

‘ I want to appeal.’

14.  On 29 August 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and is required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on his behalf, to rectify the position.  After a lapse of over three months, noting that no steps had been taken by the applicants, the Registrar of Civil Appeal directed on 9 December 2024 that the appeal be proceeded with, and appeal bundles be lodged.  On 22 April 2025, the Registrar also gave directions for written submissions to be lodged.

15.  In the applicants’ written submissions, the applicants simply stated that there was a lack of legal and language assistance, and the adjudicator acted in a procedural unfair manner in dealing with the appeal without further explanation as to how these arguments related to the applicants’ case.

VII.   Our view

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 of Appeal’s role is not to examine the Board’s Decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

17.  Further, it is well established that the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board : Re Kartini [2019] HKCA 1022.

18.  In relation to the 1^st applicant’s appeal, neither the notice of appeal nor the written submission has pointed to any error in the Judge’s Decision or the reasons he gave for his decision. Moreover, as noted above, the Board rejected the 1^st applicant’s claim based on a lack of credibility of the 1^st applicant.  We do not accept that the matters stated in the notice of appeal and the written submission have shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  They are general assertions and fail to identify with specificity or particulars any error in the Judge’s decision and his reasons.  In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision.  As the 1^st applicant’s appeal has no merits, we dismiss it.

19.  In the case of the 2^nd applicant, he is a minor.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided 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 by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

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

See: Fabio Arlyn Timogan, [34]-[35].

31.  Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of 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 had not or had not been properly advanced to the Board because of the absence of legal representation before the Board.  See Fabio Arlyn Timogan at [47]-[54].

32.  If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC.  Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board.  See: Fabio Arlyn Timogan at [50]-[53], [56]-[57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.’

20.  In the present case, the 2^nd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim.  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of the 1^st applicant’s claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd applicant’s claim.  Further, the Board had separately considered and made findings against the 2^nd applicant on the issues whether he would be discriminated as an illegitimate child, whether he would be able to go to school in Bangladesh[12] and whether he would receive family support.

21.  We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decision. We treat the non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd applicant’s appeal a nullity.  As the 2^nd applicant’s appeal has no merits, we dismiss it.