Case Detail

CACV 19/2023, [2024] HKCA 687

On Appeal From [2022] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 19 OF 2023

(ON APPEAL FROM HCAL NO 2446 OF 2019)

________________________

BETWEEN
	BEGUM SHUFIA	1^st Applicant
	SARKER MD SALAHIN	2^nd Applicant
	SARKER MD SHAHARIYAR	3^rd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/	Putative
	NON-REFOULEMENT CLAIMS	Respondent
	PETITION OFFICE
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interested Party

_____________________

Before:

Hon Chu VP and Chow JA in Court

Date of Hearing:	9 July 2024
Date of Judgment:	9 July 2024
Date of Reasons for Judgment:	19 July 2024

______________________________________

R E A S O N S F O R J U D G M E N T

______________________________________

Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1. This is the Applicants’ appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 November 2022 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 July 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 21 August 2015.

2. At the conclusion of the hearing of the appeal on 9 July 2024, we allowed the 2^nd and 3^rd Applicants’ appeal and dismissed the 1^st Applicant’s appeal, with reasons to be given later, which we now do.

BACKGROUND FACTS

3. The Applicants are nationals of Bangladesh. The 1^st Applicant is a married person, and gave birth to the 2^nd and 3^rd Applicants on 28 May 2006, in Bangladesh. As at the dates of the hearings before (i) the Board on 10 October 2017, and (ii) the Judge on 20 October 2022, the 2^nd and 3^rd Applicants were still minors. They have since reached the age of majority.

4. The Applicants arrived in Hong Kong on 15 January 2013, and were permitted to remain as visitors for 2 days for transit purpose until 17 January 2013. However, they did not leave Hong Kong and overstayed. On 22 January 2013, they surrendered themselves to the Immigration Department and subsequently lodged non-refoulement claims. The 1^st Applicant alleged that she would be (i) harmed or killed by members of the East Bengal Sorbohara Party (“SP”), who were political rivals of the party of the 1^st Applicant’s husband (Bangladesh Workers’ Party), and/or (ii) forced to convert from the Ahmadi faith to Sunni Muslim by the 1^st Applicant’s maiden family, and her religious freedom would be adversely affected. The 1^st Applicant relied on 3 particular incidents which happened between 1998 and 2007 (“the 3 Incidents”) in support of her claimed fear of harm or injury at the hands of the SP people.

5. The claims of the 2^nd and 3^rd Applicants were based on the same facts as alleged by the 1^st Applicant. On 6 June 2017, the 1^st Applicant, in response to the Director’s invitation on 25 May 2017 to submit additional facts (if any) which she considered might be relevant to the Applicants’ non-refoulement claims on all applicable grounds (including rights under BOR 2), provided the following as “Additional Facts” on behalf of the 2^nd and 3^rd Applicants for the Director’s consideration –

“(1) [The 2^nd and 3^rd Applicants’] right to religion would be jeopardized if they were to be sent back to Bangladesh because they will be forced to re-convert to Sunni Muslim by their family members;
(2) The two boys would be subjected to discrimination socially if they were to be deported back to Bangladesh because if people came to know that their religion is [Ahmadi], the boys would not get the same protection of being a minor as the normal member of the society;
(3) The two boys would be subjected to discrimination in schools in Bangladesh because if the classmates came to know that their religion is [Ahmadi] Muslim, they would be avoided by other classmates the majority of them being Sunni Muslims;
(4) The two boys would not have the right to protection under Article 20 by their status as a minor, on the part of their family, society and the State; and
(5) They would not have the protection under Article 22 being [Ahmadi] Muslims which is the religious minority in Bangladesh.”

6. Details of the Applicants’ claims have been summarised by the Judge at §§1-8 of the CALL-1 Form dated 25 November 2022 (“the Decision”), and will not be repeated here.

7. By a Notice of Decision dated 21 August 2015 (“the Director’s First Decision”) and a Notice of Further Decision dated 26 September 2017 (“the Director’s Second Decision”), the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4], finding that (i) the level of risk of harm from the SP people and the 1^st Applicant’s maiden family upon their return was low, (ii) state protection was available to the Applicants, and (iii) internal relocation was a viable option to them. As for the claims based on BOR 20 (rights of children), BOR 22 (equality before and equal protection of law), and BOR 23 (rights of minorities) raised by or on behalf of the 2^nd and 3^rd Applicants, the Director considered that those rights were not absolute or non-derogable, and therefore no non-refoulement obligation would arise from those rights alone (in reliance upon the judgment of the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743). In any event, the Director considered that the materials and information relied upon by the Applicants had been sufficiently dealt with when considering their absolute and non-derogable rights under the Hong Kong Bill of Rights (eg BOR 2 and 3), and the Applicants’ reliance on the rights under BOR 20, 22 and 23 did not add anything to their claims.

8. On 2 September 2015, the Applicants lodged an appeal to the Board against the Director’s First Decision. The appeal was heard on 10 October 2017. At the hearing, the Applicants were legally represented. Although the appeal was against the Director’s First Decision only (as it was lodged prior to the date of the Director’s Second Decision), the Adjudicator of the Board considered all grounds under the Unified Screening Mechanism (“USM”), including BOR 2, in its decision dated 25 July 2019 (“the Board’s Decision”).

9. The Board rejected the Applicants’ non-refoulement claims on all applicable grounds, and dismissed their appeal/petition (see §§105 and 106 of the Board’s Decision).

10. The Board’s reasons for its decision have been summarised by the Judge at §21 of the Decision. We shall refer to the relevant parts of the Board’s Decision later when we consider the merits of the 2^nd and 3^rd Applicants’ appeal.

THE JUDGE’S DECISION

11. On 23 August 2019, the Applicants, then acting in person, filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. An Amended Form 86, settled by the Applicants’ former counsel, was filed on 9 February 2022 with the court’s leave.

12. In the Amended Form 86, the Applicants raised six intended grounds of review. One of the intended grounds of review was “[n]o separate consideration of children’s claims and failure to consider child-specific risk”.

13. The Applicants’ application for leave to apply for judicial review was heard by the Judge on 20 October 2022. At that hearing, the Applicants were represented by counsel. By the Decision, the Judge refused to grant leave to apply for judicial review. In the Decision, the Judge considered the six grounds of review individually and rejected all of them (§§28-59). In relation to the abovementioned ground of review that the Board failed to give separate consideration to the children’s claims (ie the 2^nd and 3^rd Applicants’ claims) or consider child-specific risk, the Judge said, amongst other things, the following:

“[28] The applicants refer to §26 of the Board’s Decision and say that the Board failed to consider the children’s claim at all and treated all the claims as a composite claim. They further submit that since the Board discredited the 1^st applicant’s evidence, it is incumbent upon it to separately consider and assess the evidence of the children and to consider their claim on all applicable grounds with regard to the personal circumstances of each applicant. Paragraph 26 of the Board’s Decision refers to the facts of the case. Since this is a joint application and the children’s case depends on the 1^st applicant’s case, the Board had to consider the applicants’ case as a composite case as far as the facts are concerned. The Board has to make separate assessment as to their claims, with particular attention to the child-specifics issues.
[29] It must be borne in mind that this is the applicants’ joint application and the children’s factual evidence depends on the evidence of the 1^st applicant. The Court of Appeal in Fabio’s case held that because the minor was unrepresented before the Board, the Board should be aware that the minor’s specific interest might not have been brought to its attention because of the absence of legal representation and the Board should deal with the minor’s claim as independent claim…
[30] Shorn of the factual basis of the 1^st applicant, the children simply have no facts in support of their non-refoulement claims. In this case, the Board found that it did not accept the 1^st applicant’s facts on the 3 incidents, especially on the 3^rd incident where she alleged that she was abducted and raped by the SP.
[31] Counsel for the applicants submitted that although the applicants were legally represented, there are significant doubts that the full strength of their claims had been presented. In the supplemental skeleton submission, counsel further submitted that despite the applicants were legally represented, the Board ‘also have a duty to make independent inquiries where appropriate; the child-specific risks are non-exhaustive because the Board may, in conducting the appropriate inquiry, discover further child-specific risks.’ At the hearing, counsel agreed that the suggestion amounts to imposing an inquisitorial role upon the Board. I have 2 comments on this suggestion. Firstly, this proposition begs the question whether there is any finality in the enquiry by the Board on child-specific issues. Secondly, this inquisitorial approach has been considered undesirable by the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 …
[32] Where the 1^st applicant has been found to have no factual basis in support of her claim, there is doubt whether her children, whose cases rely upon the 1^st applicant’s facts, can establish non-refoulement claim protection.
…
[34] This case is similar to the above case’s situation, except the applicants in this case were legally represented before the Board. The Board had considered the additional grounds on BOR 20, 22 and 23 and for the reasons given, it came to its view that they did not advance the children’s cases...
[35] There is simply no evidence on the additional grounds to show that the children will be personally at risk if they return to Bangladesh.”

14. The Judge concluded that the Applicants’ intended application for judicial review had no merits and no reasonable prospect of success, and made the Order accordingly.

THIS APPEAL

15. Dissatisfied with the Decision, the Applicants lodged an appeal against the Order by a Notice of Appeal dated 19 January 2023. Following an amendment of the Notice of Appeal granted by Court of Appeal (Au and Chow JJA) on 18 March 2024, the Amended Notice of Appeal now contains only one ground of appeal, namely, misapplication of the Court of Appeal’s guidance in Fabio[2020] HKCA 971 concerning the requirements for an independent assessment of the claims of the 2^nd and 3^rd Applicants. In particular, it is contended that the Judge erred in finding that -

“(a) After the Board has rejected the 1^st Applicant’s evidence, there was no factual basis which could support the Children’s claims on applicable grounds (§30, §§32-34 of the Decision) when in fact:
(i) The Board has expressly accepted that the 1^st Applicant has converted to the Ahmadi faith (§78 of the Board’s Decision); see also §48 of the Decision, where the learned Judge noted that the Board ‘did not reject the 1^st applicant’s evidence wholesale … the Board accepts that the 1^st applicant converted to the Ahmadi faith …’;
(ii) The Board has not made any adverse finding on the claim that the Children were both Ahmadi Muslims, which gives rise to a risk of harm and/or persecution against them;
(iii) Most critically, citing Country of Origin reports, the Board has accepted that Ahmadi Muslims have been subject to discrimination, hatred and violence in Bangladesh because of their religion (§85 of the Board’s Decision); and
(iv) Therefore, there were factual bases accepted by the Board which substantiated the Children’s claim.
(b) Insofar as the Judge was of the view that the approach laid down at §34 of Fabio does not apply when the Children were legally represented at TCAB, the Judge has misconstrued the Court of Appeal’s decision in Fabio (§§29, 31-32, 34 of the Decision).
(c) In any event, the Children (through the 1^st Applicant and their former legal representative) have made abundantly clear that their religious belief was one of the bases of their non-refoulement claim. In particular, they were concerned that they would be subjected to social discrimination and ostracization, especially at school, in their extended family and the wider society.
(d) In the circumstances, applying Fabio, the Board ought to have considered the risk of harm of the Children arising out of their religion under all applicable grounds in view of their personal circumstances separately from the 1^st Applicant’s claim. Since the Board has failed to do so, the Board has erred in law. Leave to apply for judicial review ought to have been granted by the learned Judge.”

DISCUSSION

16. In view of the fact that the only ground of appeal now maintained on behalf of the Applicants concerns the Judge’s misapplication of the Court of Appeal’s guidance in Fabio relating to the assessment of the 2^nd and 3^rd Applicants’ non-refoulement claims, Ms Samantha Lau (for the Applicants) fairly accepts that the appeal of the 1^st Applicant should be dismissed.

17. Insofar as the 2^nd and 3^rd Applicants’ non-refoulement claims are concerned, it is well settled that:

(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 a child.
(4)  When dealing with a non‑represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non‑refoulement claim, the court should pay special attention to examine in the context of the 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 properly, been advanced to the Board because of the absence of legal representation before the Board.

See Re Jasvir Singh[2021] HKCA 53, §§30-31, following Fabio Arlyn Timogan[2020] HKCA 971, §34.

18. The duty of the Board to consider a minor’s non-refoulement claim separately from his/her parent(s)’ non-refoulement claim(s), even if they arise out of the same facts, applies regardless of whether the minor is legally represented before the Board. That this is so is clear from the judgment of the Court of Appeal in A v TCAB[2024] HKCA 471:

“[40] There is force in the submission that, notwithstanding the 3^rd to 5^th applicants were legally represented in the proceedings before the Board and the Director, the Board’s jurisdiction under the statutory scheme for non-refoulement claimants is not restricted to the parameters of what was submitted by their legal representatives. Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that all relevant non-derogable rights of the applicants are given meaningful protection and the Board is required to exercise its powers to fulfil this positive duty…
[41] It would appear that the Board had not conducted its independent enquiry into whether the 3^rd to 5^th applicants’ claims would require separate consideration and assessment beyond the submissions advanced by their solicitor.
[42] For the above reasons, we think that the Board’s rejection of the 3^rd to 5^th applicants’ claims (treated as effectively subsumed within their parents’ claims) would appear to be contrary to the principles laid down in Fabio Arlyn Timogan and Re Jasvir Singh, in particular, the principle that the dismissal of the claim of a parent should not automatically lead to the dismissal of the claims of the minors without separate consideration of each of the minor’s personal circumstances. Leave to seek judicial review and the application for judicial review should also be granted on the Separate Consideration Ground.”

19. In the present case, we are concerned that the Judge seems to have taken the view, at §§29 and 34 of the Decision[5], that because the 2^nd and 3^rd Applicants were legally represented before the Board, it became unnecessary for the Board to consider their claims separately from that of the 1^st Applicant. This would be an error of principle or approach.

20. Further, the Judge seems to have taken the view, at §§29, 30 and 32 of the Decision[6], that because (i) the factual basis of the 2^nd and 3^rd Applicants’ claims depended on the evidence of the 1^st Applicant, and (ii) the Board did not accept the 1^st Applicant’s evidence regarding the 3 Incidents, the 2^nd and 3^rd Applicants simply had no factual basis to support their non-refoulement claims, and it was doubtful whether they could establish their claims. This view is problematic, because:

(1)  Although the Board rejected the 1^st Applicant’s evidence regarding the 3 Incidents, it did not reject the entirety of her evidence. In particular, the Board accepted her evidence that she did embrace the Ahmadi faith and took an oath on 27 November 2011 to become a member of the Ahmadi mosque in Mirpur[7].
(2)  In holding that the 2^nd and 3^rd Applicants had no factual basis to support their non-refoulement claims once the Board rejected the 1^st Applicant’s evidence regarding the 3 Incidents, the Judge seems to have overlooked the Board’s acceptance of the 1^st Applicant’s evidence concerning the conversion of her religious faith.
(3)  Since one of the bases on which the non-refoulement claims of the 2^nd and 3^rd Applicants were advanced was that of discrimination in their schools and/or the society by reason of their minority religious faith, the mere fact that the Board rejected the 1^st Applicant’s evidence regarding the 3 Incidents should not have been treated as the end of the 2^nd and 3^rd Applicants’ claims. Instead, the Judge ought to have gone on to consider whether it was reasonably arguable that the Board had failed to properly discharge its duty to consider the claims of the 2^nd and 3^rd Applicants separately from that of the 1^st Applicant.

21. For the above reasons, we consider that the Judge fell into error in failing to properly apply the guidance in Fabio, and this Court is entitled to re-consider afresh the 2^nd and 3^rd Applicants’ application for leave to apply for judicial review of the Board’s Decision.

22. The Board dealt with the issue of the risk to the Applicants arising from their religious faith at §§85-94 of the Board’s Decision:

“Future Risk as Ahmadi
[85] While Country of Origin (‘COI’) reports indicate that there have been instances in the past of Ahmadis in Bangladesh being subjected to discrimination and hatred by the majority Sunni Muslims, such incidents have not been widespread, and have decreased in frequency in recent years. There is no evidence to suggest that, currently, there exists in Bangladesh a pattern of gross, flagrant and mass violations of human rights.
…
[86] The COI reports referred to do not indicate that, in general, there is a real risk of serious harm, even death, to members of the Ahmadi community in Bangladesh.
[87] On the totality of the evidence, I am not persuaded, even to the low standard applicable, that there is a real risk that the [1^st] Applicant would, because of her conversion to the Ahmadi faith, personally be subjected by members of her family, or by members of the Sunni community in general, to ill-treatment of the level of severity required to support her application for non-refoulement protection.
Further Information
[88] By letter dated 25 May 2017, the ImmD invited the [1^st] Applicant to submit further information, if any, in relation to consideration of her claim under the provisions of BOR 2. On 7 June 2017, she submitted ‘Additional Facts’ through the [Duty Lawyer Service], in which she raised additional claims on behalf of A2 and A3 under Article 20 and Articles 22 and 23 of HKBORO (‘BOR 20 and BOR 22 and BOR 23’).
…
BOR 20, BOR 22 and BOR 23 Not Applicable
[92] Neither, BOR 20, BOR 22 nor BOR 23 has been declared to be ‘non-derogable and absolute’ by the courts in Hong Kong. In the circumstances, I have not assessed the Claimant’s application for non-refoulement protection under BOR 20, BOR 22 and BOR 23 since these articles do not apply to non-refoulement claims.
[93] However, I have considered the [1^st] Applicant’s evidence relating to the underlying acts or omissions which form the basis of her claims under BOR 20, BOR 22 and BOR 23 to assess whether such evidence is capable of establishing, to the low standard required, that there is a real risk that the Applicants would be subjected to ill-treatment of the type, and to the degree of seriousness, contemplated under the grounds of the USM.
[94] The [1^st] Applicant has merely repeated the assertions of fact which I have already considered in the context of her claim for protection under the USM. Her evidence does not advance the Claimants’ application for non-refoulement protection under the USM.”

23. Ms Lau does not dispute that BOR 20, 22 or 23 do not, by themselves, give rise to any claim for non-refoulement protection in view of the provisions of s 11 of the Hong Kong Bill of Rights Ordinance, Cap 383. However, as pointed out by the Board, the underlying facts relevant to a contention that the rights under BOR 20, 22 or 23 have been or will be infringed may, depending on the facts and circumstance of any given case, give rise to a claim for non-refoulement protection under one or more of the applicable grounds referred to at §7 above.

24. Looking at the above reasoning of the Board for rejecting the 2^nd and 3^rd Applicants’ non-refoulement claims arising from their religious belief, it is clear that the Board did not consider the 2^nd and 3^rd Applicants’ claims separately from that of the 1^st Applicant. Although the Board did consider whether the risk to the Applicants arising from their religious belief as Ahmadis might give rise to a real risk of “ill-treatment of the type, and to the degree of seriousness, contemplated under the grounds of the USM”, the Board rejected such risk simply on the basis that “[t]he [1^st] Applicant … merely repeated the assertions of fact which [the Board] has already considered in the context of her claim for protection under the USM”, and took the view that “[h]er evidence does not advance the Claimants’ application for non-refoulement protection under the USM”[8].

25. On behalf of the 2^nd and 3^rd Applicants, Ms Lau argues that the Board ought to have considered the risk of harm to them arising from their religion, the availability of state protection and internal relocation taking into account their personal circumstances, including: (i) their young age, (ii) their lack of experience in living in Bangladesh after leaving the country when they were only 7 years old, (iii) their lack of experience in handling religious discrimination in Bangladesh after spending their formative years in Hong Kong, and (iv) their need to receive education and the nature and extent of discrimination they may face at school. The Board did not address the risk and consequential harm of possible societal discrimination to the 2^nd and 3^rd Applicants, even though it was highlighted in the Additional Facts submitted by the 1^st Applicant on their behalf.

26. We consider that there is force in Ms Lau’s argument. Some of the considerations mentioned by Ms Lau are no longer, or may no longer be, relevant in view of the fact the 2^nd and 3^rd Applicants have now reached majority. Nevertheless, for the purpose of the present appeal, one should focus on the position as at the date of the hearing before the Board. Overall, we are of the view that the 2^nd and 3^rd Applicants’ application for judicial review of the Board’s Decision is reasonably arguable, and have realistic prospects of success. We therefore grant them leave to apply for judicial review of the Board’s Decision.

DISPOSITION

27. The 1^st Applicant’s appeal is dismissed, and the 2^nd and 3^rd Applicants’ appeal is allowed. Paragraph 1 of the Order is set aside in so far as the 2^nd and 3^rd Applicants are concerned, while paragraph 2 of the Order concerning the costs of the application below (including legal aid taxation of the Applicants’ costs) is upheld. Leave to apply for judicial review of the Board’s Decision is granted to the 2^nd and 3^rd Applicants. There shall be no order as to the costs of this appeal (as accepted by Ms Lau).

28. In passing, we would suggest to the Director and the Board, (who have not taken any active step in this appeal) that, in order to achieve an early and economical resolution of the 2^nd and 3^rd Applicants’ non-refoulement claims, consideration may be given to whether the 2^nd and 3^rd Applicants’ application for judicial review of the Board’s Decision ought to be settled so that their appeal may be remitted to the Board for fresh determination as soon as practicable.

29. Lastly, we are grateful to Ms Lau and her instructing solicitors (Daly & Associates), who have acted pro bono for the Applicants in this appeal, for their assistance rendered to the Court.

(Carlye Chu)
Vice-President of
Court of Appeal

(Anderson Chow)
Justice of Appeal

Ms Samantha Lau, instructed by Daly & Associates, for the 1^st to 3^rd Applicants

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of being arbitrarily deprived of their lives under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] Quoted at §13 above.

[6] Quoted at §13 above.

[7] See §8 of the Board’s Decision.

[8] See §§92-93 of the Board’s Decision.

CACV 19/2023, [2024] HKCA 241

On Appeal from [2022] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 19 OF 2023

(ON APPEAL FROM HCAL NO 2446 OF 2019)

________________________

BETWEEN
	BEGUM SHUFIA	1^st Applicant
	SARKER MD SALAHIN	2^nd Applicant
	SARKER MD SHAHARIYAR	3^rd Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

_____________________

Before:

Hon Au and Chow JJA in Court

Date of Written Submissions:	13 December 2023
Date of Judgment:	18 March 2024

____________________

JUDGMENT

____________________

Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1. This is the Applicants’ application for leave to (i) amend the Notice of Appeal dated 19 January 2023, and (ii) adduce new evidence, namely, the 1^st Applicant’s 3^rd Affirmation affirmed on 25 October 2023, in support of the proposed amended grounds of appeal.

2. The Applicants’ appeal is against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 November 2022 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 July 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 21 August 2015.

BRIEF BACKGROUND

3. The Applicants are nationals of Bangladesh. The 1^st Applicant married a person named MD Nazir Ahmed Sarkar (“the Husband”) in 1997, and gave birth to the 2^nd and 3^rd Applicants on 28 May 2006, in Bangladesh.

4. The Husband last entered Hong Kong on 1 August 2006, and was permitted to remain as a visitor for 3 days. He did not leave Hong Kong after the expiry of his limit of stay. He was arrested by the police on 2 June 2011 for overstaying, and lodged a torture claim on 23 July 2013 and later a non-refoulement claim on 6 March 2014 after his torture claim had been rejected on 24 January 2014. His non-refoulement claim was rejected by the Director and the Board, and his application for judicial review was dismissed by Deputy High Court Judge Bruno Chan on 22 March 2019 (HCAL 519/2017). However, the decision of Deputy High Court Judge Bruno Chan was subsequently reversed by the Court of Appeal on 24 June 2021 (CACV 159/2019), and the matter was remitted to another adjudicator of the Board for fresh consideration.

5. The Applicants arrived in Hong Kong on 15 January 2013, and were permitted to remain as visitors for 2 days for transit purpose until 17 January 2013. However, they did not leave Hong Kong and overstayed. On 22 January 2013, they surrendered themselves to the Immigration Department and subsequently lodged non-refoulement claims, alleging that they would be (i) harmed or killed by members of the East Bengal Sorbohara Party (“SP”), who were political rivals of the Husband’s party (Bangladesh Workers’ Party), and/or (ii) forced to convert from the Ahmadi faith to Sunni Muslim by the 1^st Applicant’s maiden family, and their religious freedom would be adversely affected. The claims of the 1^st, 2^nd and 3^rd Applicants were all based on the same facts as alleged by the 1^st Applicant. The 1^st Applicant relied on 3 particular incidents which happened between 1998 and 2007 in support of her claimed fear of harm or injury at the hands of the SP people. Details of the Applicants’ claims have been summarised by the Judge at §§1-8 of the CALL-1 Form dated 25 November 2022 (“the Decision”).

6. By a Notice of Decision dated 21 August 2015 (“the Director’s First Decision”) and a Notice of Further Decision dated 26 September 2017 (“the Director’s Second Decision”), the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4], finding that (i) the level of risk of harm from the SP people and the 1^st Applicant’s maiden family upon their return was low, (ii) state protection was available to the Applicants, and (iii) internal relocation was a viable option to them. As for the claims based on BOR 20 (rights of children), BOR 22 (equality before and equal protection of law), and BOR 23 (rights of minorities) raised by or on behalf of the 2^nd and 3^rd Applicants, the Director considered that those rights were not absolute or non-derogable, and therefore no non-refoulement obligation would arise from those rights alone (in reliance upon the judgment of the Court of Final Appeal in Ubamaka Edward Wilson v the Secretary for Security (2012) 15 HKCFAR 743). In any event, the Director considered that the materials and information relied upon by the Applicants had been sufficiently dealt with when considering their absolute and non-derogable rights under the Hong Kong Bill of Rights (eg BOR 2 and 3), and the Applicants’ reliance on the rights under BOR 20, 22 and 23 did not add anything to their claims.

7. On 2 September 2015, the Applicants lodged an appeal to the Board against the Director’s First Decision. The appeal was heard on 10 October 2017. At the hearing, the Applicants were legally represented. Although the appeal was against the Director’s First Decision only (as it was lodged prior to the date of the Director’s Second Decision), the Adjudicator considered all grounds under the USM, including BOR 2, in its decision dated 25 July 2019 (“the Board’s Decision”).

8. The Board rejected the Applicants’ non-refoulement claims on all applicable grounds, and dismissed their appeal/petition (see §§105 and 106 of the Board’s Decision).

9. The Board’s reasons for its decision have been summarised by the Judge at §21 of the Decision, which it is not necessary to set out in this judgment.

THE JUDGE’S DECISION

10. On 23 August 2019, the Applicants, then acting in person, filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. An Amended Form 86, settled by the Applicants’ former counsel, was filed on 9 February 2022 with the court’s leave.

11. In the Amended Form 86, the Applicants raised 6 intended grounds of review (“JR Grounds”). They were summarised by the Judge at §24 of the Decision, as follows:

“(1) No separate consideration of children’s claims and failure to consider child-specific risk.
(2) Failure to take into account relevant matters and to give reasons was procedurally unfair and a misdirection in law.
(3) The Adjudicator’s decision to attach no weight to any of the Applicant’s evidence which amounts to hearsay and/or speculation and which is unsupported by any other credible evidence is an error of law and/or irrational.
(4) The finding that the 1^st Applicant’s evidence in relation to her rape was purely hearsay/speculative was irrational and/or unreasonable.
(5) The rejection of the medical documents submitted by the Applicant was irrational and the requirement to corroborate with documentary evidence was an error in law.
(6) The rejection of the newspaper article which reported the Applicant’s abduction was irrational and/or unreasonable.”

12. The Applicants’ application for leave to apply for judicial review was heard by the Judge on 20 October 2022. At that hearing, the Applicants were represented by counsel. By the Decision dated 25 November 2022, the Judge refused to grant leave to apply for judicial review. In the Decision, the Judge considered the 6 JR Grounds individually and rejected all of them (§§28-59). The Judge concluded that the Applicants’ intended application for judicial review had no merits and no reasonable prospect of success, and made the Order accordingly.

THE APPEAL

13. In their Notice of Appeal dated 19 January 2023, the Applicants, then acting in person, raised the following grounds of appeal against the Order:

(1)  “Appeal Ground 1” relates to JR Grounds 1 and 2. The Applicants contended that the Judge misapplied the Court of Appeal’s guidance in Fabio [2002] HKCA 971 concerning the requirements for an independent assessment of the claims of the 2^nd and 3^rd Applicants. In particular, the Judge erred in finding that –
(a)  The 2^nd and 3^rd Applicants’ claims had to be rejected simply because some aspects (but not the entirety) of the 1^st Applicant’s claims were disbelieved (§30 of the Decision);
(b)  The Board had no duty to inquire into relevant child specific risks where the 2^nd and 3^rd Applicants were legally represented (§§31-32 of the Decision);
(c)  There were no factual bases for the 2^nd and 3^rd Applicants’ claims, other than a mere citation of the relevant rights under BOR 20, 22 and 23, and that there was “simply no evidence” on the additional grounds to show that the 2^nd and 3^rd Applicants would be at risk (§§34-35 and 42 of the Decision).
(2)  “Appeal Ground 2” relates to JR Grounds 3 to 6. As explained later in this judgment, Appeal Ground 2 is no longer relied upon by the Applicants in the appeal.

THE PRESENT APPLICATIONS

14. The Applicants’ appeal was originally scheduled to be heard on 31 October 2023. However, shortly before the date of the hearing, the Applicants’ current solicitors (Daly & Associates) filed a Notice to Act for the Applicants, and the 1^st Applicant filed a written consent to act as the next friend of the 2^nd and 3^rd Applicants in the appeal, on 25 October 2023.

15. Also on 25 October 2023, the Applicants filed a summons seeking leave to amend the Notice of Appeal, and to adduce the 1^st Applicant’s 3^rd Affirmation as new evidence in the appeal.

16. The proposed amendments of the Notice of Appeal involve:

(1)  the “perfection” of the “Fabio Ground”, ie Appeal Ground 1;
(2)  the removal of Appeal Ground 2; and
(3)  the introduction of a new ground, namely, that the Board wrongly failed, when assessing the Applicants’ claims, to take into account the Husband’s non-refoulement claim, his evidence and the Board’s findings in respect of his claim (“the New Ground”).

17. The proposed new evidence consists of 2 categories of documents[5]:

(1)  Category 1 relates to various documents in respect of the Husband’s non-refoulement claim, namely –
(a)  a torture claim form dated 23 July 2018;
(b)  an excerpt of the documentary evidence (with English translation) submitted by the Husband in support of his claim;
(c)  a notice of decision dated 24 January 2014;
(d)  a decision of the Torture Claims Appeal Board dated 10 June 2014;
(e)  a notice of decision dated 30 November 2015;
(f)  a decision of the Non-refoulement Claims Petition Office dated 19 May 2017; and
(g)  correspondence with the Board from 19 April 2018 to 7 May 2018.
(2)  Category 2 comprises 2 documents:
(a)  the Applicants’ Skeleton Arguments/Submissions dated 27 September 2017 (“the Skeleton Arguments”); and
(b)  an excerpt (Section 7) of the Home Office’s “Country Policy and Information Note – Bangladesh: Religious minorities and atheists” (“the COI Material”).

18. On behalf of the Applicants, Ms Samantha Lau argues that:

(1)  The revisions to the Fabio Ground only brush up Appeal Ground 1. They do not alter the substance of that ground. The amendments cause no prejudice to the other side. They are necessitated by the fact that Appeal Ground 1 was initially drafted by the Applicants in the absence of legal assistance. The amendments should be allowed so that the Fabio Ground can be properly argued before the Court.
(2)  Leave to introduce the New Ground should be granted because, amongst other things –
(a)  The New Ground is meritorious. The Husband’s evidence is highly relevant and indeed critical to the Applicants’ claim: (i) their claims are predicated on risks arising from the Husband’s political activities; and (ii) only the Husband (not the 1^st Applicant) would have first-hand knowledge and details of the underlying facts. The Board knew at the outset that the Husband’s evidence was decisive, which unfortunately had “gone amiss”. The Board, in fulfilment of its joint duty of endeavour, should have exercised its power under s 22 of Schedule 1A to the Immigration Ordinance and s 20 of the Petition Guide to summon the Husband as a witness and/or ask him to produce relevant documentary evidence to the Board. The Board failed to do so and instead proceeded to reject the 1^st Applicant’s evidence because the Husband did not give evidence at the hearing. Hence, the Board’s Decision is tainted by the non-observance of the high standards of fairness, and/or the adverse findings are unsafe in that they were reached without consideration of the relevant evidence of the Husband.
(b)  The New Ground goes to a material error of the Board’s Decision and it is in the interest of justice to allow it to be argued in the appeal. If the Court discerns a fundamental error in the Board’s Decision, the error should be dealt with: (i) so that the Government would not be acting in contravention of its international obligations (even though the Applicants did not raise the issue below), and (ii) in view of the fact that the life and limb of the Applicants are at stake.
(c)  The issues raised by the New Ground are relatively confined: (i) whether the Husband’s evidence and claim are relevant to the Applicants’ claims, (ii) whether the Board ought to have obtained his evidence in light of the joint duty of endeavour in the circumstances, and (iii) whether the Board’s failure is material. While they are mixed questions of law and fact, an extensive exercise of fact-finding is not required. Further, the proceedings thus far have been “ex parte”. The other side has suffered no discernible prejudice. If the Court sees fit, the Applicants would undertake to further amend the Amended Form 86 to include the New Ground.

19. In relation to the proposed new evidence, Ms Lau argues that the Court should exercise its discretion to admit the evidence for the following reasons:

(1)  There is a strong public interest to do so in the present case. The appeal concerns the proper interpretation and application of the Fabio principles, which are relevant not just to the Applicants but other existing and future non-refoulement claimants, as well as the Putative Respondent and Putative Interested Party. Also, fundamental rights are at stake.
(2)  If the proposed new evidence is ultimately accepted by the Court, it discloses a case of arguable procedural impropriety and illegality of the Board’s Decision. Without the proposed new evidence, the Court would not be able to assess various aspects of the lawfulness (or unlawfulness) of the Board’s Decision.
(3)  It would be an affront to one’s sense of justice not to admit the proposed new evidence. The evidence, if ultimately accepted by the Court, would likely have an important influence on whether Board’s Decision can stand.
(4)  There is no issue concerning the cogency and credibility of the documents proposed to be adduced as evidence. Neither the Board nor the Department of Justice has raised any concern on this aspect.
(5)  The failure to adduce the proposed new evidence below was not intentional. The Category 1 documents were not produced simply because the Applicants did not appreciate the significance of the error now proposed to be advanced as the New Ground in support of the appeal.

DISCUSSION

20. In relation to the proposed amendments of Appeal Ground 1, the Fabio Ground was before the Judge, and he dealt with it at §§28-39 of the Decision. Having regard to the fact that the Applicants were acting in person at the time when the original Notice of Appeal was filed, and the minor Applicants (ie the 2^nd and 3^rd Applicants) were not properly represented at that stage, we consider that leave should be granted to the Applicants to amend Appeal Ground 1. The Category 2 documents, ie the Skeleton Argument and the COI Material, proposed to be admitted as new evidence in support of the amended Appeal Ground 1 were before the Board. The Skeleton Argument would be relevant to a proper understanding of what was actually argued before the Board, while the COI Material was (we are told[6]) specifically referred to by the Board at §85 of the Board’s Decision. In all the circumstances, we are prepared exceptionally to grant leave for these 2 documents to be adduced as new evidence in order that the Court can properly consider and deal with the amended Appeal Ground 1 in the substantive appeal, even though the Ladd v Marshall Conditions may not be fully satisfied in the present case.

21. The position is different, however, in respect of the New Ground and Category 1 documents. The gravamen of the Applicants’ complaint is that the Board failed to discharge its joint duty of endeavour to summon the Husband as a witness and/or ask him to produce the Category 1 documents. It will be recalled that the Applicants were legally represented at the hearing before the Board. Although the mere fact that they were legally represented did not negate the Board’s joint duty of endeavour, it is a significant factor for considering whether there was any breach of such duty on the part of the Board. Generally speaking, the legal representative of a non-refoulement claimant would be in a much better position than the Board to assess whether a witness should be called to give oral evidence and/or produce documentary evidence before the Board. The legal representative may be privy to information which is not known to the Board. For example, the legal representative may have interviewed the witness and formed an unfavourable impression of his credibility, or come to the view that some information in the relevant documents may not be helpful to the claimant’s appeal. In the present case, there is no explanation as to why the Husband was not called by the Applicants’ former lawyer to give evidence before the Board or produce the Category 1 documents. It is not suggested that the Applicants’ former lawyer was negligent, or gave wrong advice to the Applicants which resulted in the Husband not being called to give evidence. Thus, the failure to call the Husband to give evidence or produce the Category 1 documents might well have been a deliberate or calculated decision. In the circumstances, it is, we consider, incumbent on the Applicants to give a full and proper explanation as to why the Husband was not called to give evidence and produce the Category 1 documents before the Board. The Applicants have singularly failed to do so.

22. Ms Lau submits that the Board rejected the 1^st Applicant’s evidence “because the Husband did not give evidence at the hearing”. This does not seem to us to be a fair way of putting the matter. What the Board found was that the 1^st Applicant’s evidence in relation to all 3 Incidents was very vague and generalized, and her assertion that the SB people were responsible for the attacks was based solely on her own speculation which was itself based entirely on the hearsay evidence of what she had been told by the Husband (see §70 of the Board’s Decision). At the hearing before Judge, the Applicants’ counsel argued that “the Board had failed to [assess] the credibility of the applicant’s evidence by taking into account that she could not be expected to produce witness or full documentary evidence for the events and it should give the benefit of the doubt to the applicant” [emphasis added] (see §46 of the Decision). If the Husband could give or produce relevant and credible evidence, there was no reason why the 1^st Applicant could not be expected to call him as a witness to give oral evidence or produce relevant documentary evidence, there being no suggestion that he was not ready and willing to do so. The argument now raised by the Applicants that the Board failed to observe the high standard of fairness because it failed to summon the Husband to give oral evidence and/or produce relevant documents is contradictory to the stance adopted before the judge. This opportunistic argument has no merits whatsoever.

23. In all the circumstances, we consider the Applicants’ argument that the Board failed to discharge its joint duty of endeavour is not reasonably arguable. Further, this ground of review is not raised in the Applicants’ Amended Form 86, and is thus not open to the Applicant in these proceedings. Ms Lau submits that the Applicants would undertake to further amend the Amended Form 86 to include the New Ground. The problem is that even if leave is given to the Applicants to re-amend the Amended Form 86, there would still be no consideration or finding by the Judge on this issue. The Court of Appeal’s approach in dealing with appeals in non-refoulement cases is well-established. 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 light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed (Nupur Mst v Director of Immigration[2018] HKCA 524, at §14). 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(6)). To permit the Applicants to raise the New Ground in the appeal would require the Court of Appeal to examine the Board’s decision afresh, contrary to the well-established approach of the Court.

24. For the above reasons, we decline to grant leave to the Applicants to introduce the New Ground. Having reached this conclusion, we would also decline to grant leave to the Applicants to adduce the Category 1 documents as new evidence in the appeal.

DISPOSITION

25. We grant leave to the Applicants to (i) amend the Notice of Appeal as per the draft Amended Notice of Appeal attached to the Applicants’ summons dated 25 October 2023, except Ground 2 thereof, and (ii) adduce the Category 2 documents mentioned in §17(2) above as new evidence in the appeal. There shall be no order as to the costs of the Applicants’ summons of 25 October 2023.

(Thomas Au)
Justice of Appeal

(Anderson Chow)
Justice of Appeal

Ms Samantha Lau, instructed by Daly & Associates, for the 1^st to 3^rd Applicants

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] See §14 of the 2^nd Affirmation of the 1^st Applicant filed on 25 October 2023.

[6] See §14(2) of the 2^nd Affirmation of the 1^st Applicant filed on 25 October 2023.

BEGUM SHUFIA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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