RE MONDOL MONGOLI AND ANOTHER

CACV 445/2024, [2025] HKCA 755

On Appeal From [2024] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 445 OF 2024

(ON APPEAL FROM HCAL NO. 590 OF 2022)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge To (the “Judge”)  of 15 October 2024 in which he refused to grant leave to them to apply for judicial review (the “Judge’s Decision”).  

2.  This appeal was scheduled to be heard on 30 July 2025.  Despite the directions from the Court to the applicants dated 9 June 2025 (the “Directions”), the applicants failed to lodge written submissions by the stipulated time.  Accordingly by [4] of the Directions, the hearing of the appeal has been vacated and the Court will now deal with this appeal on paper. 

2)  Background

3.  The 1^st applicant is a Bangladeshi national.  The 2^nd applicant is her daughter.  She was born in Hong Kong on 7 November 2021.  Her father is also a Bangladeshi national.  He is also a non-refoulement claimant[1].  However, the 2^nd applicant’s permanent status has not been established[2].

4.  The 1^st applicant last arrived in Hong Kong in February 2017 to work as a foreign domestic helper.  Her employment contract was prematurely terminated in March 2017.  She overstayed from April 2017. She was arrested in January 2020.  She lodged a non-refoulement claim by written representation on 17 February 2020.

5.  As said, the 2^nd applicant was born in Hong Kong on 7 November 2021.  On 11 February 2022, her birth registration was completed.  Her birth certificate states that her status of Hong Kong permanent resident is “not established”.  The 2^nd applicant’s non-refoulement claim was lodged by the 1^st applicant on her behalf by written representations in June and July 2022.

6.  The bases of the applicants’ claims are that the 1^st applicant will be harmed or killed by her ex-husband Palash Biswas (“Palash”), who was a violent person because he was dissatisfied with the 1^st applicant’s dowry of their marriage[3].  As the 2^nd applicant was born out of wedlock, the 1^st applicant was worried that the 2^nd applicant would not be accepted by the 1^st applicant’s family.  The 1^st applicant was also afraid that the 2^nd applicant would be harmed or killed by Palash if they were to be returned, as Palash had got news of the 2^nd applicant’s birth[4].

7.  As the 2^nd applicant is a minor, the Judge in the course of the judicial review proceedings asked the 1^st applicant (on 2^nd applicant’s behalf)  to seek legal representation by approaching the Legal Aid Department or a private lawyer[5].  The 1^st applicant then applied for legal aid for the 2^nd applicant. The application was refused.  She said there was no funds to engage private solicitors, and she confirmed the she did not intend to seek legal representation.  The Judge regarded the absence of legal representation for the 2^nd applicant as a mere irregularity[6].

8.  For the same reason, in the course of the present appeal, the Registrar of Civil Appeals on 29 October 2024 directed that the 2^nd applicant should seek legal representation, including taking steps to apply for legal aid.  The 2^nd applicant applied for legal aid.  The application had been refused.  On 13 March 2025, the Registrar of Civil Appeals directed that the appeal would be proceeded with regardless, and the applicants were directed to lodge appeal bundles.  On 9 June 2025, the applicants were directed to lodge written submissions, failing which the applicants’ right to have an oral hearing would be deemed waived.  No written submissions have been lodged. The intended oral hearing has hence been vacated.

9.  The background facts have been summarized in the Judge’s Decision at [1] to [15], [28] to [30].

3)  The Director’s Decisions

10.  The Director of Immigration (the “Director”)  decided against the 1^st applicant’s non-refoulement claims on 14 August 2020 (the “Director’s 1^st Decision”).  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (“BOR 3”), Bill of Rights Article 2 (right to life)  risk (“BOR 2”), as well as other statutory and convention rights against torture and persecution.

11.  The Director decided against the 2^nd applicant’s non-refoulement claims on 24 November 2022 (the “Director’s 2^nd Decision”).  The decision covered BOR 3, BOR 2, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decisions

12.  The 1^st applicant appealed/petitioned against the Director’s 1^st Decision to the Torture Claims Appeal Board (the “Board”).  An oral hearing was held on 12 April 2021.  By a decision dated 15 December 2021, the Board dismissed the appeal/petition (the “Board’s 1^st Decision”).

13.  The Board’s findings are summarized in the Judge’s Decision at [16]-[27].

14.  The 1^st applicant on behalf of the 2^nd applicant appealed/petitioned to the Board against the Director’s 2^nd Decision.  An oral hearing was held on 18 March 2024.  The 1^st applicant testified on behalf of the 2^nd applicant[7].  By a decision dated 20 March 2024, the Board dismissed the appeal/petition (the “Board’s 2^nd Decision”).

15.  The Board’s findings are summarized in the Judge’s Decision at [31]-[45].

5)  The Judge’s Decision

16.  On 8 July 2022, the 1^st applicant filed a Form 86 for leave to seek judicial review against the Board’s 1^st Decision. The 1^st applicant was over 3 months late in doing so.  The Judge noted that the 2^nd applicant’s claim hinged on the 1^st applicant’s, and that the Board’s 1^st Decision was issued during the post-natal period when the 1^st applicant might be inconvenienced for understandable reasons.  The Judge for expediency reasons granted the 1^st applicant extension of time to lodge her leave application, and leave to amend her application to include the 2^nd applicant[8].  In the supporting affirmation the 1^st applicant stated various grounds.  They were summarised in the Judge’s Decision at [47].

17.  The Judge observed that the applicants’ grounds for judicial review were familiar to the Court, and that they appeared to be template submissions without regard to the actual facts of the case.  At the hearing, whilst the 1^st applicant claimed that the grounds were prepared by her friend on the basis of what she had told him, she could not provide particulars on the individual grounds[9]. 

18.  The Judge noted that in both the Board’s 1^st and 2^nd Decisions, the Board found that the 1^st applicant evidence was neither credible nor reliable.  It rejected her evidence.  The 1^st applicant had failed to prove the factual basis of her claim.  Both applicants could also internally relocate within Bangladesh[10].  

6)  Grounds of appeal

19.  The notice of appeal stated (all mistakes being original)  :

‘1. Failed to fully consider the fact that I had raised into my claim that why I and my daughter life will be at risk upon refoulement. I and my daughter life will be at risk because the situation into my country has been changed and I and my daughter will not safe to our country because of fear.

2.  Failure to consider country of origin condition (COI)  information that the authority of my country would not be able to protect me.’

20.  We will deal with this appeal based on the available documents.

7)  Our view

21.  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 the light of the grounds advanced by the applicant.  If no viable ground has been put forward, 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].

22.  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.  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. 

23.  In relation to the 1^st applicants’ appeal, the notice of appeal has failed to point to any error in the Judge’s Decision or the reasons for his decision.  The Board rejected the 1^st applicant’s claim based on the implausibility of her evidence that there was any real risk of harm[11].  The Board found her not to be a credible witness.  We do not accept that the matter stated in the notice of appeal has shown that the Board had made any error of law, acted unfairly procedurally or that its decision was irrational.  The notice of appeal contains nothing but general assertions.  It fails to pinpoint or identify with specificity or particulars any error in the Judge’s Decision or 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.

24.  In the case of the 2^nd applicant, she 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.’

25.  In the present case, the 2^nd applicant’s claims are 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 her 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. 

26.  Further, the Board has separately considered the 2^nd applicants’ claims[12]. We do not consider, having regard to the facts of this case, there is any valid basis to seek judicial review of the Board’s Decisions.  The Judge has separately considered the 2^nd applicant’s claim and has reached the same view[13]. 

27.  As the 1^st and 2^nd applicants’ appeal has no merits, we dismiss the same.