Akhtar Musammat Sajna and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1426/2018

[2021] HKCFI 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1426 of 2018

BETWEEN

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;

Order by Deputy High Court Judge K.W. Lung:

(1)   Leave for applicants to apply for judicial review of the Board’s Decisions be granted; and

(2)   The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and son, who was born on 19 June 2016 and is now aged about 4 years old. I shall refer to the first applicant as the applicant and the second applicant as applicant son, unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 25 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant son’s case relies upon the facts of the applicant.

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

The applicants

4.The applicant is a Bangladeshi national. She came to Hong Kong as a domestic helper on 16 December 2014. Her employment contract was terminated prematurely. She overstayed and was arrested by police on 4 November 2015. She gave birth to her son on 19 June 2016. She had made non-refoulement claim to the Immigration Department for herself and her son jointly.

5.The applicant claimed that if refouled, she and her applicant son were in fear of being subjected to ill-treatment inflicted by Firoz and his men. Firoz was a member of the Awami League (“AL”) whilst her father, a member of Bangladeshi National Party (“BNP”). Firoz tried to force her father and her brother to convert to AL in 2002. In the same year, they came to her house with weapons. They fought together. Her uncle was living next door. He came with his four sons to fight with the AL people. In the course of fighting, a member of AL cut her mother’s arm off with a sword. She was afraid and moved to live with her uncle. However, she was tailed by the AL members from time to time. They threatened to hurt and rape her. But they did not take action. In 2014, she heard that Hong Kong would provide employment opportunity. She therefore came to Hong Kong and worked as a domestic helper. She is still scared of returning to Bangladesh. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered their application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

7.The Director had considered their situations separately.

8.By Notice of Decision dated 9 August 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her and her son being harmed by the AL people if they returned to Bangladesh [19]; that state protection was available to her [22]; internal relocation was an option open to her [25]. The applicant son’s case was assessed separately. The Director found that her son would be provided with education by the government schools or non-governmental organizations [28].

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decision. The applicant attended a hearing before the Board on 24 March 2018. The Board had not considered the applicant’s case and the applicant son’s case separately. It treated their claim as a composite claim.

10.For the reasons set out in the Board’s Decision, the Board, rejected her and her son’s appeal. The Board found that the applicant had never been assaulted or hurt in Bangladesh; that she had not lodged her non-refoulement at the first instance when she arrived at Hong Kong and that it was not logical for her to have travelled for such a long distance to Hong Kong instead of going elsewhere nearer Bangladesh. These are rhetorical questions which were not put to the applicant for her to answer. Yet, the Board relied upon those questions unanswered to doubt her credibility that she came to Hong Kong to seek asylum.

Application for leave to apply for judicial review

11.The applicants filed Form 86 on 19 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In the applicant’s affirmation in support of their joint application, she said:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on me and my son’s case on 25/6/2018. They disregarded our dangerous situation.”

DISCUSSION

13.The Board has clearly not considered the situations of the applicant and her son separately.

14.The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

“(a) 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 circumstances of each claimant;

(b). 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;

( c). Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child.”

15.This decision was followed by the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021. The Court of Appeal further directed as follows:

“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 [referring to the Fabio case], 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].”

16.In Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33, 14 January 2021, the Court of Appeal held:

“39. The 2nd applicant’s claim was presented by the 1st applicant as being based on the 1st applicant’s case. Both the Director and the Board had not given separate consideration to the 2nd applicant’s case or assessment of her situation if refouled…. …

42. In the present case, we are concerned that the 2nd applicant’s case might not have been fully presented to the Board and that there had not been a separate consideration and assessment of her claim and her situation upon refoulement…. …   For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.  There should also be separate assessment of risk of harm having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination.”    

17.Although the Director had considered their case separately, when the Board assessed the applicant’ case, it did not take into consideration of the child’s specifics, which may, in turn, affect the applicant’s application.

18.I have further taken the following issues into consideration:

(i)  This is a joint application by the applicants. As such, their application must be considered together.

(ii)  The specifics for the child may also be applicable to the mother applicant, especially on their claim of relocation.

(iii)  The Board considered the issue of internal relocation without taking into account that if the child succeeded in his claim because of his special circumstances, his situations might affect the mother applicant’s chance of relocation because it is quite impossible to separate the child from the mother applicant for relocation.

19.In the circumstances, it is apparent that the Board had not taken this relevant factor into consideration in its decision to reject the applicants’ application.

CONCLUSION

20.The Court will grant leave to the applicants to apply for judicial review of the Board’s Decision. The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.

Dated the 14^th day of April 2021

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