KHANAM SALMA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 243/2020

[2025] HKCFI 5689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 243 of 2020

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the 1st, 2nd and 3rd Applicants in open court;

1.  The 1^st applicant’s application for leave to apply for judicial review be dismissed.

2.  Leave is granted to the 2^nd and 3^rd applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.  Since the 2^nd and 3^rd applicants are both minors, they should be legally represented at the judicial review hearing.  Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

Observations for the Applicants:

Introduction

1.  By A “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 22 January 2020, the applicants applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 15 January 2020  (“Board’s Decision”) dismissing the appeal by the 1^st , 2^nd and 3^rd applicants against the decision of the Director of Immigration (“Director”) dated 25 September 2019 (“Director’s Decision”) rejecting their non‑refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000243_2020_files/the_Board's_Decision.pdf

2.  The 1^st applicant is the mother of 2^nd and 3^rd applicants, her minor sons. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57].  The court therefore sent a letter on 21 March 2025 to the 1^st applicant, reminding her to approach the Legal Aid Department or engage a private lawyer to represent the 2^nd and 3^rd applicants. At the time of the hearing, there was no information that the 1^st applicant had asked for any legal assistance.

3.  At the request of the applicants for an oral hearing, the court scheduled a hearing on 13 November 2025, which were attended by all the applicants in person.  Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra).

4.  The basis of their claim was that, if refouled to Bangladesh, the 1^st applicant, along with her sons (the 2^nd and 3^rd applicants), would be harmed or killed by people from the Awami League due to the political dispute.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting affirmation provided no such grounds. 

7.  At the hearing, this court asked the 1^st applicant whether she had any grounds she wished to submit in support of the Leave Application in respect of herself.  The applicant stated that because of her two sons (2^nd and 3^rd applicants) were in Hong Kong, she could not go back otherwise she would be killed. When the court asked the 1^st applicant whether she had anything to say on behalf of the 2^nd and 3^rd applicants, the 1^st applicant stated that she would do whatever that was required to allow them to stay in Hong Kong.

8.  Since the 2^nd applicant and the 3^rd applicant were already teenagers (respectively 15 and 13 at the time of the hearing), this court asked them separately if they wished to say anything.  The 2^nd applicant stated that if he were to go back, the enemies would kidnap him and kill his mother.  The 3^rd applicant adopted the 2^nd applicant’s submission.   

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board received evidence only from the 1^st applicant in the 2 hearings it held. The Board assessed the appeal by the applicants on the basis that the claims by the 2^nd and 3^rd applicants were derivative of the primary claims made by the 1^st applicant. The Board found the 1^st applicant had been inconsistent concerning the central elements of her claim.  Overall, in view of the inconsistences and inherent implausibility of the central aspects of the 1^st applicant’s claims, the Board found that it was not satisfied that the account she provided was factual.  It therefore concluded that the 1^st applicant would not face any form of proscribed harm if refouled.  Since the Board found that the 2^nd and 3^rd applicants were joined to the appeal of the 1^st applicant, the Board therefore also determined their appeals with reference to the outcome of the 1^st applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Regarding the 1^st applicant

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness.  I am satisfied that the Board was entitled to reach the conclusion that the 1^st applicant had not faced and would unlikely face any risk of harm after having rejected the applicant’s credibility concerning the material aspects of her claims.  The 1^st applicant has not advanced any grounds, whether written or oral, in support of the Leave Application.  The 1^st applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The 1st applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Regarding the 2^nd and 3^rd applicants

11.  At the time of the hearing before the Board, the 2^nd applicant and the 3^rd applicant were respectively aged 9 and 7, who were not legally represented or able to make submissions on their own behalves.  The Board did not separately consider the relevant risks each of them face if they were refouled.  The following general propositions apply to the determination of a minor's non-refoulement claim by the decision-maker: Re Jasvir Singh [4], following Fabio Arlyn Timogan (supra.).

“[30] First. …(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.

[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.”

12.  According to the 1^st applicant’s evidence, there were 2 attempts to kidnap son of the 1^st applicants by the AL relatives of the 2^nd and 3^rd applicants.  In the Board’s Decision at [110], the Board listed 5 significant accounts of the 1st applicant’s evidence that it had particular concerns.  However, the Board did not seem to have specifically rejected the applicant’s account of the incidents of the attempted kidnaps. As emphasized by the Court of Appeal, even if a minor’s 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.  In the circumstances, it is reasonably arguable that the Board’s dismissal of the appeals of the 2^nd and 3^rd applicants without separate and further consideration of their personal situations is procedurally unfair as it has failed to assess their claims in a manner consistent with the propositions propounded in Re Jasvir Singh.

13.  In the premises, and for all the given reasons, I am of the view that the Leave Application of the 2^nd and 3^rd applicants is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Conclusion

14.  The 1^st applicant’s application for leave to apply for judicial review be dismissed.

15.  I grant leave to the 2^nd and 3^rd applicants to apply for judicial review of the Board’s decision, and direct that they shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

16.  Since the 2^nd and 3^rd applicants are both minors, they should be legally represented at the judicial review hearing.  Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

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

[1] Re Zunartyah [2018] HKCA 14 at [23].

[2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142].

[3] Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[4] [2012] HKCA 53.