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

HCAL 380/2024

[2024] HKCFI 3264

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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D E C I S I O N

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The application

1.  The 1^st applicant is the mother (“the mother”) and the guardian ad litem of the 2^nd applicant, aged 3, her daughter and the 3^rd applicant, aged 2, her son (“the applicants”). The mother’s claim had been disposed of and rejected separately. In this application, the mother is only acting as the guardian of the applicants.

2.  The applicants lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected their applications and they appealed to the Torture Claims Appeal Board (“the Board”). Having considered the evidence, the Board, by its Decision (“the Board’s Decision”), rejected their appeal and affirmed the Director’s Decisions.

3.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

4.  By Order dated 4 October 2024 (“the Court’s decision”), the Court dismissed their application for the reason that there was no realistic prospect of success in their intended application.

5.  The Court’s decision was sent to the applicants on 4 October 2024 without being returned by the Post Office. They were deemed to receive the Court’s decision.[1]

6.  The deadline for them to file their notice of appeal is 18 October 2024[2].

7.  In their summons filed on 25 October 2024, the applicants asked for extension of time to file their notice of appeal. In the mother’s affirmation in support of their application, the mother did not explain why the application is late.

8.  Their application for appeal is late for 7 days.

Discussion

9.  Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing[3].

10.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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 their case.

11.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

12.  The children’s cases rely upon their mother’s facts in support of her claim. The mother’s claim was rejected as being unfounded.

13.  On behalf of the 2^nd applicant, the mother submitted that, if refouled, the 2^nd 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 3^rd applicant’s claim was assessed by another immigration officer. The mother submitted on behalf of the 3^rd 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 3^rd 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.

15.  The Director rejected their claims for the reason that they were unsubstantiated. The applicants appealed to the Board.

16.  The Board found that the applicants’ claims are unfounded and that state protection will be available; they cannot fulfill the definition of “refugee” under the Refugee Convention; and it is viable for the mother to relocate internally if they return to Bangladesh.

17.  There is no valid reason from the applicants to challenge the Board’s Decision. It is trite law that the Court should not interfere with the finding of the facts by the Board without good reason.

18.  There is no valid reason from the applicants to challenge the Court’s decision.

19.  In the circumstances, I refuse to extend time for their appeal. Accordingly, I dismiss their application.