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HCAL 380/2024
[2024] HKCFI 2496
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 380 OF 2024
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BETWEEN
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Soren Sume |
1st Applicant |
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Jahangir Jarifa Khan |
2nd Applicant |
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Jahangir Ishak Khan |
3rd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
26 August 2024 |
| Date of Judgment: |
4 October 2024 |
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J U D G M E N T
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THE APPLICATION
1. The 1st applicant is the mother (“the mother”) and the guardian ad litem of the 2nd applicant, aged 3, her daughter and the 3rd applicant, aged 2, her son.
2. The mother made her non-refoulement claim on 18 November 2014. The Director rejected her claim. She appealed to Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The Board dismissed her appeal. She applied for judicial review of the Board’s decision to the Court of the First Instance, which dismissed her application. See [2020] HKCFI 1536. She intended to appeal to the Court of Appeal, but she was out time. By an order dated 23 August 2021, the Court of Appeal dismissed her application for extension of time to appeal. See [2021] HKCA 1223. In this application, the mother is only acting as the guardian of the 2nd and the 3rd applicants. The reference of the applicants below only refers to the 2nd and the 3rd applicants.
3. The applicants jointly apply for leave to apply for judicial review of the Decision dated 26 July 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the mother’s facts.
4. Their application is late as it shall not be later than 3 months from the date of the Board’s Decision, which expired on 26 July 2023[1]. Their application was filed on 27 February 2024, which is about 7 months’ late. This issue will be dealt with below.
5. Due notice has been given to the applicants to attend the hearing on 26 August 2024. However, they were absent without prior notice to the Court. I shall deal with their joint application on paper.
6. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicants
7. The mother’s facts are as follows.
8. She is a national of Bangladesh. She came to Hong Kong on 21 January 2014 as a domestic helper. Her contracted was terminated on 18 April 2014. She departed Hong Kong and re-entered and stayed for another employment contract, which was terminated on 12 August 2014. On 25 September 2014, she surrendered herself to the Immigration Department. On 18 November 2014, she lodged a non-refoulement claim.
9. In support of her claim, she said that if refouled, she feared that she would be harmed or killed by (i) the Muslim as she belonged to Christian and Santhali and (ii) Romesh Tudu, her husband due to domestic dispute.
10. She married her husband in 1999 and gave birth to two children in 2004 and 2006 respectively. Her husband did not work. He would assault her during family disputes. He slapped her and hit her body. But she did not report to police. In around 2007, she moved to live with her own family. Since then, her husband had not assaulted or threatened her.
11. As for the religious reason, she felt that she was discriminated by the Muslims. But she admitted that she was never assaulted or threatened by the Muslims. She was never harmed by the Muslims. She elected to work in Hong Kong.
12. The Board found that her fear that she will be subjected to ill-treatment inflicted by the Muslims and her husband if she returns to Bangladesh are based on her speculation.
13. On behalf of the 2nd applicant, the mother subnitted that, if refouled, the 2nd applicant would be harmed or killed by the villagers of Village Kashimnogor (“the Villagers”) and/or her mother’s family because of her background as illegitimate child with a Muslim biological father. Her mother also worries that, upon refouled, she will be discriminated and cannot receive fair education and protection because she is a Santhal.
14. The 3rd applicant’s claim was assessed by another immigration officer. The mother submitted on behalf of the 3rd applicant that, upon refouled, he would be ill-treated, harmed or killed by (1) her parents named Mr Soren Narayan and Ms Kisku Sukhina (“her maternal grandparents”). She further worries that the 3rd applicant will face discrimination for being a child of mixed ethnic groups (of Santhal and Bengali) if he returns to Bangladesh. The mother is not sure whether he will have a risk of harm by her ex-husband Mr Romesh Tudu if he returns to Bangladesh.
The Director’s Decisions
15. 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”).
16. In relation to the 2nd applicant’s claim, the Director, by Notice of Decision dated 29 October 2021 (“the Director’s First Decision”), rejected her claim for the reasons below.
(1) It is only the mother’s speculation that the 2nd applicant will be subjected to fear from the Villagers as there is no evidence to support such fear [12].
(2) There is no evidence that the mother’s family will harm the 2nd applicant if she returns to Bangladesh [13].
(3) State protection will be available to the 3rd applicant [15]-[18].
(4) Internal relocation is viable [19]-[23].
17. In relation to the 3rd applicant’s claim, the Director, by Notice of Decision dated 29 November 2022 (“the Director’s Second Decision”), rejected his claim for the reasons below.
(1) The low intensity of past ill-treatment from his maternal grandsparents and Mr Romish on his mother and the absence of any ill-treatment on him is indicative of a low future risk of harm upon his return to Bangladesh [14]-[19].
(2) There is no evidence that he will be discriminated or subjected to any ill-treatment because he is a child of mixed ethnic groups (of Santhal and Bengali) [20].
(3) State protection is available to him in Bangladesh [21]-[28].
(4) Internal relocation is a viable option [29]-[35].
The Board’s Decision
18. The applicants appealed the Director’s Decisions to the Board. On 25 May 2023, the Board conducted a hearing where the applicants were represented by a duty lawyer and the Director was represented by a government counsel.
19. Having considered the evidence and the submissions of respective legal representatives, the Board has made the findings as below.
(1) It does not accept the mother’s assertion that the applicants will be regarded as illegitimate children if they return to Bangladesh [32].
(2) It does not accept that the applicants will be discriminated by the Villagers due to their status being children of a divorced person and there is a low probability that they will suffer ill-treatment of gravity [36].
(3) It does not accept that (i) the applicants will be harmed by the mother’s family because they are Muslims; (ii) the applicants will be harmed by the Christian Community of the mother’s locality because they are Muslims; (iii) they will face discrimination from the general public due to their mixed ethnicity; and (iv) they are stateless persons [39].
(4) It finds no reliable evidence indicating that the applicants will suffer pain or suffering, either physically or mentally, of certain severity or gravity [42].
(5) Bearing in mind that the applicants are minors, it finds no evidence or Country of Origin Information (“COI”) suggesting that the applicants will suffer persecution if they are returned to Bangladesh [70].
(6) State protection will be available to the applicants in Bangladesh [76].
(7) After considering the evidence and the COI, it finds that the applicants cannot, on the facts as found, bring themselves within any of the grounds enumerated in the definition of “refugee” in Article 1A(2) of the Refugee Convention [78].
(8) With the assistance from non-government organization, it considers that the mother is capable of supporting herself and taking care of the applicants without any support from her family. It considers that it is reasonable or not unduly harsh for the mother to reside and work at anywhere within Bangladesh, especially Dhaka, Chittagong and Khulna, together with the applicants [107].
Application for leave to apply for judicial review
20. The applicants filed Form 86 on 27 February 2024 for leave to apply for judicial review of the Board’s Decision.
21. On behalf of the applicants, the mother filed an affirmation dated 27 February 2024 in support of their application. Her affirmation is enclosed with a copy of the Board’s Decision without specifying any reasons to challenge the Board’s Decision.
DISCUSSION
22. As mentioned in paragraph 4, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicants’ case.
23. 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).
24. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
25. It is apparent that the Director and the Board had considered the applicants’ cases separately, bearing in mind the child-specific issues and they were legally represented before the Board.
26. The applicants have raised no valid reason to challenge the Board’s Decision.
27. The applicants fail to show that they have any realistic prospect of success in their intended application.
DISPOSITION
28. I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
29. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicants’ application a nullity.
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(K.W. Lung)
Deputy High Court Judge
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The applicant were unrepresented and did not appear.
[1]. Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
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