SOUARE AMINATA BELLO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1258/2020

[2025] HKCFI 4231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1258 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   Leave is granted for the 1^st and 2^nd applicants (“the applicants”) to apply for Judicial Review of the Torture Claims Appeal Board’s Decision dated 18 December 2019.

2.   The applicants shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

3.   A copy of this Order be served on the Department of Justice, who shall work out the proper directions for the judicial review hearing with the applicants.

4.   Liberty to apply.

Observations for the Applicant:

The application

1.  The 1^st applicant, aged 36, is a national of Kenyan and is the mother of the 2^nd applicant, aged 8.  I shall call the 1^st applicant, the mother, and the 2^nd applicant, her son, unless otherwise stated.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 December 2019 of the Torture Claims Appeal Board (“the Board’s Decision”).  Their joint application relies upon the facts of the mother.

3.  Their application is late. Time expired for them to file Form 86 is 18 March 2020, within 3 months after the date of the Board’s Decision. They filed Form 86 on 22 June 2020, which is more than 3 months.

4.  The applicants did not request a hearing. This Court will deal with their application on the papers.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

Reasons for leave granted                                                                   

6.  The mother is a national of Kenya who entered Hong Kong on 7 April 2011 and was allowed to stay until 6 July 2011.  She thereafter remained without permission. Her son was born in Hong Kong.

7.  The applicants lodged a non-refoulement claim on the basis that, if refouled, they will be harmed or killed by a man called Emolo, who was a member of the criminal Mungiki gang in Kenya because she refused to marry him.  She fled for Hong Kong for her safety.  She lodged her non-refoulement with the Immigration Department.  The facts are state in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001258_2020_files/the_Board's_Decision.pdf.

8.  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”).

9.  By way of the Director’s Decision, the Director assessed the applicants’ claims jointly on all applicable grounds and dismissed their claims because their claims are unsubstantiated.  Besides, state protection will be available and internal relocation is viable if they return to their country.

10.  The applicants appealed the Director’s Decision to the Board.  On 2 October 2019, the Board conducted an oral hearing for their appeals.  The mother had given oral evidence.

11.  Having considered the evidence, the Board found that the mother’s evidence had no credibility and dismissed her appeal on the facts of her case and confirmed the Director’s Decision.

12.  The Board had not considered her son’s case, let alone the child specific issues.

13.  It is apparent that the applicants were not legally represented before the Board.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to consider issues on:

(1)   Whether there was legal representation for the minors before the Board to present the minors’ issues for the Board’s consideration.

(2)   Whether the Board had separate consideration for the minor because he is more vulnerable to the risks than his parent, irrespective of whether the minor was legally represented.  See Begum Shufia & Others v Torture Claims Appeal Board [2024] HKCA 687 at [18] & Asif Muhammad & Others [2025] HKCA 630 at [18]

14.  The Board had failed to do so, which is clearly an error in law.

15.  Whilst this Court considers that the Board was right to reject the mother’s facts, however, the Board dismissed the mother’s claim without consideration of her son’s claim.  There is no reason that the claim of the mother and her son should be severed as it is a jointly application.  The mother’s claim is closely related to her son’s claim.

16.  The Court of Final Appeal in Re C & Others v Director of Immigration & Secretary for Security & Another (2013) 16 HKCFAR 280, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Bokhary NPJ and Sir Anthony Mason, held:

“22. … Also, the law requires, and the legislature must have intended, that the Director would take into consideration relevant matters, and ignore irrelevant matters. This is how Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]1KB 223, at 229 described this requirement:

‘For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law.  He must call his own attention to the matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to what he has to consider.  If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.’”

17.  This is the reason why I grant leave to the mother to apply for judicial review of the Board’s Decision as well.  Her application should be considered together with her son’s claim.

18.  Although the applicants are late in filing Form 86, I exercise my discretion to grant leave to them to file their application as they have merits in their application.

19.  Leave is therefore granted to the applicants to apply for judicial review of the Board’s Decision and the applicants shall take out an originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.

20.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicants’ application a nullity.

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