SOREN SUME AND OTHERS v. v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 62/2025, [2026] HKCA 1141

On Appeal From [2024] HKCFI 2496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 62 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 380 OF 2024)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is the 2^nd and 3^rd applicants’ joint application for extension of time to appeal against the decision of Deputy High Court Judge K.W. Lung (“Judge”)  dated 4 October 2024[1] refusing to extend time for their joint application for leave to apply for judicial review and refusing to grant leave for them to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 26 July 2023.  In that decision, the Board dismissed the 2^nd and 3^rd applicants’ appeal against the decisions of the Director of Immigration (“Director”)  dated 29 October 2021 and 29 November 2022 rejecting their non-refoulement claims respectively.

2.  The 2^nd and 3^rd applicants were late in seeking to appeal against the Judge’s decision of 4 October 2024.  On 5 December 2024, the Judge refused their application for extension of time to appeal.

Background

3.  The 1^st applicant is a national of Bangladesh born in 1987.  She previously lodged a claim for non-refoulement protection for herself and it was rejected by the Director.  Her appeal was later dismissed by the Board.  She applied to the Court of First Instance for judicial review of the Board’s decision, which was dismissed.[2]  Her application for extension of time to appeal was subsequently dismissed by this Court on 25 August 2021.[3] In the present application, the 1^st applicant only acts on behalf of the 2^nd and 3^rd applicants and is not a party to the application.

4.  The 2^nd applicant is the daughter of the 1^st applicant and a Bengali man born in 2020.  The 3^rd applicant is the son of the 1^st applicant (“Mother”)  and the same man born in 2022.  The Board was satisfied that the 2^nd and 3^rd applicants would be entitled to get Bangladeshi nationality when they return to Bangladesh, as set out in [73] of its decision.

5.  The 2^nd and 3^rd applicants’ claims were based on the Mother’s representations made on their behalf, and their claims were made on the basis that if they returned to Bangladesh, the Mother’s family and the local Christian and Muslim communities would harm or kill them due to their mixed ethnicity, their illegitimacy status, and religious discrimination.  Details of the applicants’ background, the basis of their claims, and the Board’s reasons for rejecting their appeal are all summarized in the Judge’s judgment dated 4 October 2024. The Judge has set out the grounds advanced by the applicants in support of the application and his reasons for refusal of the application: see [22] – [27] of the Judgment.

The renewed application before this Court

6.  By summons filed by the 1^st applicant on their behalf on 25 March 2025, the 2^nd and 3^rd applicants applied for “leave to appeal out of time the order dated 4^th day of October 2024.”  In other words, this is their renewed application for extension of time to appeal against the decision of the Judge dated 4 October 2024 refusing leave for judicial review.

7.  The applicants did not lodge any written submissions in accordance with the directions of the Registrar of Civil Appeals dated 30 January 2026.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

8.  The 2^nd and 3^rd applicants were late for 7 days beyond the 14-day time-limit prescribed by Order 53 rule 3(4)  when the Mother, on their behalf, filed a summons in the Court of First Instance for extension of time on 25 October 2024.  There was no explanation of the delay.  After the Judge refused to extend time on 5 December 2024, the applicants did not take out a summons to apply to the Court of Appeal for extension of time until 25 March 2025.  There was therefore a further period of delay of over 4 months.  In the Mother’s supporting affirmation, she stated that she was unaware of the time limit of 14 days, that she was unrepresented, that she never received any decision of the court at her residential address and only knew about it from an immigration officer, and that the decision of the Judge was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.

9.  The delay and the explanation provided are both unsatisfactory.  However, given the circumstances of the 2^nd and 3^rd applicants who are minors, we shall focus the question whether there are any merits in their intended appeals.

The 2^nd applicant’s appeal

10.  The 2^nd applicant was aged 2 at the time of the Board’s decision, and now aged 5.  The proper approach to non-refoulement claims of children, such as the 2^nd applicant’s case, has been considered by this court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh [2021] HKCA 53.  We shall not repeat everything that has been said in those cases.  Suffice it for present purposes to note that, first, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  Ill treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.[4]

11.  Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, bearing in mind the requisite high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[5]

12.  In this case, the Board considered the 2^nd applicant’s claim at the same hearing as the 3^rd applicant’s appeal, based on the representations given by the Mother on their behalf.  The decision of the Board analyzed the 2^nd and 3^rd applicants’ claims, separately from the Mother’s claim.  Based on its findings and reasons, the Board was not satisfied that the 2^nd applicant would face a real risk of serious harm or death now or in the reasonably foreseeable future if refouled to Bangladesh.  The Board found that the factual account was not credible or truthful, that the 2^nd applicant would not be harmed by the Mother’s family for her Muslim faith, that the 2^nd applicant would not be harmed by the Christian community of the Mother’s locality due to her Muslim faith, that the 2^nd applicant would not face discrimination from the general public due to her mixed ethnicity, and that the 2^nd applicant is not a stateless person.  The Board further assessed that there was no evidence of risk of harm or ill-treatment, that there was no risk of persecution due to religion or race, that reasonably sufficient state protection would be available, and that internal relocation to Dhaka, Chittagong and Khulna were viable options because the Mother was an able-bodied person who could obtain assistance from non-government organizations available to single mothers (if there was no support from the Mother’s family).  These are findings of facts open to the Board based on the evidence it received and for the reasons it gave.

13.  The 2^nd applicant was legally represented at the hearing before the Board.  In [66] of its decision, the Board acknowledged the relevant law in relation to non-refoulement claims by children and that it must consider child-specific issues for the applicants.  The Board thoroughly considered the 2^nd applicant’s specific circumstances of being of mixed ethnicity, mixed religion, possibly illegitimate, and possibly stateless.

14.  As set out by the Judge in [25] to [26] of his decision, we agree that the Board had considered the 2^nd applicant’s case separately with analysis of child-specific issues, and no valid reason had been raised on her behalf to challenge the Board’s decision.  Nor do we find any procedural unfairness in the proceedings before the Board.

The 3^rd applicant’s appeal

15.  The 3^rd applicant was aged 1 at the time of the Board’s decision, and now aged 4.  The relevant principles on non-refoulement claims of children have already been referred to in [10] to [11] above and will not be repeated.

16.  The Board considered the 3^rd applicant’s appeal based on the representations given by the Mother on his behalf.  As with the 2^nd applicant, the Board was not satisfied that the 3^rd applicant would face a real risk of serious harm or death now or in the reasonably foreseeable future if refouled to Bangladesh based on its findings and reasons given.  It found that the factual account was not credible or truthful, that the 3^rd applicant would not be harmed by the Mother’s family for his Muslim faith, that the 3^rd applicant would not be harmed by the Christian community of the Mother’s locality due to his Muslim faith, that the 3^rd applicant would not face discrimination from the general public due to his mixed ethnicity, and that the 3^rd applicant is not a stateless person.  The Board further found that there was no evidence of risk of harm or ill-treatment, that there was no risk of persecution due to religion or race, that reasonably sufficient state protection would be available, and that internal relocation to Dhaka, Chittagong and Khulna were viable options because the Mother was an able-bodied person who could obtain assistance from non-government organizations available to single mothers (if there was no support from the Mother’s family).  These are findings of facts open to the Board based on the evidence it received and for the reasons it gave.

17.  The 3^rd applicant was also legally represented at the hearing before the Board.  Having acknowledged the proper approach relating to non-refoulement claims by children, the Board thoroughly considered the 3^rd applicant’s specific circumstances of being of mixed ethnicity, mixed religion, possibly illegitimate, and possibly stateless in Bangladesh.

18.  We agree with the Judge that the Board had considered the 3^rd applicant’s case separately with analysis of child-specific issues, and no valid reason had been raised on his behalf to challenge the Board’s decision.  We do not find any procedural unfairness in the proceedings before the Board.

19.  As to the applicants’ complaint about lack of legal knowledge, it is well established that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10]. The 2^nd and 3^rd applicants were legally represented in the preparation of their respective non-refoulement claim forms up to the stage of the appeal hearing before the Board.  We do not find the non-availability of legal representation in the processes before the court to amount to any procedural unfairness.

20.  In respect of the allegation that the Judge did not allow the Mother an opportunity to clarify their case and situation, an oral hearing before the Judge was held on 26 August 2024 but the Mother and the 2^nd and 3^rd applicants did not attend it.  According to the court’s record, written notice of the scheduled hearing was sent to the address stated by the Mother in the 2^nd and 3^rd applicants’ Form 86, and it was not returned undelivered.  The 2^nd and 3^rd applicants have failed to advance any ground to show how the Judge can be said to have erred in dismissing their application for leave to apply for judicial review.

21.  Accordingly, there being no reason to think that the 2^nd and 3^rd applicants could raise any reasonably arguable ground for judicial review of the Board’s decision, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar v Torture Claims Appeal Board [2022] HKCA 348, and dismiss their appeal, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that they have not acted by a next friend acting by a solicitor)  as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

22.  For the above reasons, we are satisfied that extension of time should be refused.  The 2^nd and 3^rd applicants’ application by summons dated 25 March 2025 is accordingly dismissed.