KHANOM SUMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2327/2019 and HCAL 832/2023

[2025] HKCFI 3808

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2327 of 2019

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 of 2023

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 oral submissions by the Applicant in HCAL 2327/2019 and the 1st Applicant in HCAL 832/2023 in open court and the attendance of the 2nd Applicant in HCAL 832/2023 being excused;

1.  HCAL 2327/2019 and HCAL 832/2023 are heard together; and

2.  Leave to apply for Judicial Review in both HCAL 2327/2019 and HCAL 832/2023 be refused.

Observations for the Applicant:

Introduction

1.  There are two applications for leave to apply for judicial review (“leave application(s)”) before the Court. The Applicant in HCAL 2327/2019 is also the 1^st Applicant and the mother of the 2^nd Applicant in HCAL 832/2023 (the “mother”). In HCAL 2327/2019, the mother applied on behalf of herself. In HCAL 832/2023, she applied solely on behalf of her son (the “son”). They sought leave to review the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 July 2019 (the “First Decision”) and dated 28 March 2023 (the “Second Decision”) dismissing their respective appeals against the decisions of the Director of Immigration (the “Director”) refusing their applications for non-refoulement protection. The two applications are heard together.

2.  At the oral hearing on 7 April 2025, the Court explained to the mother who represented her son in HCAL 832/2023 the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for her son so that his specific interests may be fairly put before the court. She was also advised of the services of the Legal Aid Department. She said she had applied for legal aid on behalf of her son. Both applications were adjourned pending the outcome of son’s legal aid application. On 2 June 2025, the court was informed by the Director of Legal Aid that the son’s legal aid application had been refused.

3.  At the hearing on 6 August 2025, the mother confirmed that she did not intend to seek private legal representation. She also confirmed that her son’s claim is based on the facts of her case and she was confident that she could represent him. The Applicants had been legally represented before the Director. As no new evidence would be advanced by the Applicants, the Court was of the opinion that despite the lack of legal representation, the son’s leave application in HCAL 832/2023 may be justly determined without prejudicing his interest. The Court therefore considered the absence of legal representation was a mere irregularity, which would not annul the proceedings. The Court proceeded to make the following determination.

Background

4.  The Applicants are Bangladeshi nationals. Their personal background, the factual background leading to the present application, the basis of their claim, the arguments they advanced, the finding of the Board and the reasons for its Decisions are set out in details in the Board’s Decisions. These will not be repeated here. The hyperlink to the Board’s Decisions are included below[1] for reference. In brief, the mother entered Hong Kong to work as a domestic helper on 12 May 2016. Her employment was prematurely terminated on 15 May 2016. She left Hong Kong for Macau and returned on 28 May 2016. Then she overstayed since 30 May 2016. On 7 July 2017, she surrendered to the Immigration Department and made a non-refoulement claim. On 12 September 2020, she married a non-refoulement claimant in Hong Kong and gave birth to her son on 9 December 2020. She also made a non-refoulement claim on her son’s behalf. Her husband has deserted her three years ago. She has no knowledge of his whereabouts and whether he had been refouled.

5.  In gist, the mother claims that if returned to Bangladesh she will be harmed or killed by members of the ruling political party, the Awami League (the “AL”), because of her affiliation to an opposition party, namely the Bangladesh Nationalist Party (the “BNP”), while the son fears that if his mother is harmed or killed he would be deprived of maternal care. Their claims were separately assessed and rejected by the Director. Their respective appeals against the Director’s decisions were dismissed by the Board’s First Decision and Second Decision. Now they seek leave to apply for judicial review of those Decisions.

6.  The mother testified on behalf of herself in her appeal and then on behalf of her son in his appeal before the Board in two separate hearings. In the First Decision, the Board found her memory about her association with the BNP vague and lacking in detail and there were significant inconsistencies in her other evidence. On her own admission, she was “not a significant or particularly influential member” of the BNP. The Board did not accept she was specifically targeted for revenged by the AL people or that she was such an important BNP member that the AL people had to track her down nationwide to kill her. As an able-bodied person, she could relocate to other parts of Bangladesh to avoid the risk of harm. It was also of the view that she should have been forgotten by the AL people after the long passage of time. The Board was not satisfied that she would face any real risk of harm or ill-treatment if refouled. Applying the law applicable to the non-refoulement protection under the Unified Screening Mechanism (the “USM”) to the above facts, the Board found that the mother had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal.

7.  In its Second Decision, a differently constituted Board assessed the son’s case separately. It adopted the Director’s finding. Essentially, it made similar finding of fact as it did in its First Decision. In addition, it noted the death of the mother’s father was extremely unfortunate but found there was no evidence from which any concrete link between the death and the AL or the AL people could be inferred. The mother confirmed that her son’s claim is based on the same facts as hers. As the son had no direct disputes with the AL or the AL people targeting his mother, the Board found he would have no more connection with the disputes than had his mother. Since the mother had not been harmed and the AL or the AL people do not know about the son’s existence, the Board found it unlikely that the AL or AL people would harm him. It found that the AL people who targeted the mother were not public officials or state actors and that the pain or suffering caused to the mother did not reach the minimum level of severity. It also found state protection available and that the risks facing the mother and hence the son as well were localized and could be avoided by internal relocation. Furthermore, it found the son’s grandmother could be a possible candidate for providing maternal care for the son. It therefore reached the conclusion that the mother had not shown that there are substantial grounds for believing that there would be any real risk or substantial grounds for believing that her son would be subject to any real risk of any proscribed harm.

Grounds for judicial review

8.  At the hearing, after the law relating to judicial review had been explained to the mother, she said she believed there was no error of law in the Decisions. She said there was no procedural unfairness in the making of the Second Decision and her son was legally represented before the immigration officer during the screening interview, but she was not. When exploring with her about the circumstances of her ownscreening interview, she said she was confused and could not remember because it was a long time ago. She recalled attending the interview with an interpreter, she was asked questions, she answered them, the questions and answers were recorded but were not read back to her, she was given the record and told to sign, she said she probably signed the record but she did not read it. She said she signed many documents in the Immigration Department. Her record of the screening interview was not among the documents produced by her. As she admitted signing the record, that she had no complaint about procedural unfairness and most importantly that she had no allegation about what was wrong with the record, it would be futile to call for the record or the interviewing officer to investigate if the record is a true and complete record of the screening interview and if there was any procedural unfairness in the conduct of the screening interview and the taking of record.

9.  As for her claim that she did not have legal representation, her evidence was vague. She was actually uncertain. Other than her vague and uncertain allegation, there is nothing to suggest why the Immigration Department would depart from the standard practice of arranging legal representation for the mother. More importantly, the Notice of Decision was sent to her via the Duty Lawyer Service. That suggests she had been legally represented by the Duty Lawyer Service. There is no substance in her complaints.

10.  The mother filed two affirmations in support of the two leave applications. They are similar. They set out some procedural background, the facts of their case and her disagreement with the two Decisions. Essentially, her complaints are the same and are set out in paragraphs 6 and 7 of the two affirmations. These are:

(1)  the Applicant was not given an opportunity to keep forward her submissions in an oral hearing nor was she invited to submit written submissions; and

(2)  the Board relied on unreliable news which is not officially recognized or is simply hearsay, the lack of credible source of information has resulted in the Board making groundless speculations that it is safe for them to return to Bangladesh

11.  Point (1) suggests that the Board made a decision without an oral hearing and without giving her the opportunity to make a written submission. When that was explained to her, the mother admitted she had an oral hearing, which she could not deny. She then argued that the First Decision had not been properly considered as she was given the decision and all the materials she had submitted a few days after the hearing. This is obviously untrue. On the incontrovertible evidence, the oral hearing was held on 18 June 2019 and the First Decision was issued on 19 July 2019, thirty-one days later.

12.  The mother was asked to give particulars of this point of complaint. She said she wished to withdraw the answers she gave to the immigration officer during the first interview. She gave a confusing account that she was told to go to somewhere in that connection but ultimately she could not withdraw the answers. It transpired that she was referring to answers she gave in some preliminary interviews or inquiries before she filled in her non-refoulement claim form (the “NCF”). Since those events preceded the non-refoulement procedure and whatever was written during those occasions was overtaken by what was submitted by her in her NCF. It would be futile to look into the question of procedural unfairness in relation to what had happened in those prior events. The mother had submitted a copy of her NCF prepared by herself. The answers to the questions asked in the NCF were typed and signed by her. The NCF was signed by her and by the interpreter confirming that the interpreter had accurately interpreted the entire content of the NCF to her. The most important answer is that to question 35 of the NCF in which she set out her case in three typed pages. She signed on every page. This Court could find nothing to suggest there was any procedural unfairness arising from her allegations, even if they were accepted at their face value.

13.  Next, in relation to Point (2), the mother was asked to give particulars of the news which she alleged are not officially recognised and which she complained the Board had taken into account and the credible source of information which she alleged the Board failed to take into account. She frankly admitted that she could not. She said she gave her documents to “someone” and that “someone” prepared the affirmation for her. She did not really know what that ground was about.

14.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out in both the First Decision and the Second Decision the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

16.  The Board assessed the mother’s claim separately from her son’s. It was not satisfied that she would face any real risk of harm or ill-treatment if refouled. In considering her son’s claim, it reminded itself of the legal principles as stated by the Court of Appeal in Fabio Arlyn Timogan and Others v Evan Ruth, Esq Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petitions Office[2] and Re Siti Naisah & Ors[3]. It was conscious of the principle that claims by children are separate from that of their parents. It bore in mind the son’s personal circumstances and carried out a separate assessment of child-specific risk of harm.  It found the son’s feared ill-treatment is also not well-founded.

17.  Then, applying the law applicable to non-refoulement protection to the above finding of fact, the Board came to the conclusion that both the mother and her son are not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of law and of facts. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the two Decisions. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decisions are utterly without fault. The proposed judicial reviews have no realistic prospect of success.

Conclusion

18.  For the above reasons, the mother’s leave application in HCAL 2327/2019 and the son’s leave application in HCAL 832/2023 are refused.

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