Hossain Ahmed and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 796/2018, HCAL 2644/2019
and HCAL 1101/2022
(Heard together)

[2024] HKCFI 2165

HCAL 796/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 796 OF 2018

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BETWEEN

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HCAL 2644/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 2644 OF 2019

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BETWEEN

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HCAL 1101/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 1101 OF 2022

__________________

BETWEEN

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(Heard together)

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DECISION

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1.This is the combined hearing of the applications by the applicants (“AP1” to “AP4”, and collectively “APs”) for leaves to seek judicial review under HCAL 796/2018 (“HCAL 796”), HCAL 2644/2019 (“HCAL 2644”) and HCAL 1101/2022 (“HCAL 1101”, and collectively the “3 JR Applications”).

2.AP1 is a Bangladeshi national. AP2 is his wife. She is also a Bangladeshi national. They were married in Bangladesh. AP3 is their elder son. He was born in Bangladesh in 2008. AP4 is their younger son. He was born in Hong Kong in 2013.

3.AP1, AP2 and AP3 last arrived in Hong Kong January 2013. They have been overstaying in Hong Kong since 10 February 2013.

4.In June 2014, APs lodged their non-refoulement claims (the “2014 Claims”).

5.On 8 September 2015, the Director of Immigration (the “Director”) refused the 2014 Claims.

6.On 29 September 2015, APs lodged their appeal to Torture Claims Appeal Board (the “Board”) against that refusal (the “2015 Appeal”).

7.On 15 February 2018, the Board handed down the Board’s decision dismissing the 2015 Appeal (the “2018 Board Decision”).

8.On 7 May 2018, APs filed their Form 86 under HCAL 796/2018 (“HCAL 796”) for leave to challenge the 2018 Board Decision.

9.APs applied for legal aid to continue HCAL 796. Those applications were refused by the Director of Legal Aid (“DLA”) on 24 August 2018.

10.APs appealed against those refusals.

11.On 10 June 2019, Master Reuden Lai dismissed APs legal aid appeals (the “LAA Decision”).

12.On 10 September 2019, the APs filed their Form 86 under HCAL 2644 for leave to challenge the LAA Decision.

13.In the meantime, on 1 and 21 August 2019, APs lodged subsequent non-refoulement claims by written significations (the “2019 Claims”).

14.On 16 December 2019, the Immigration Department (“ImmD”) decided that the APs could make the 2019 Claims.

15.On 3 March 2020, the Director refused APs’ 2019 Claims.

16.On 18 March 2020, APs appealed to the Board against Director’s refusal of the 2019 Claims (the “2020 Appeal”).

17.On 2 June 2022, the Board handed down the Board Decision dismissing the 2020 Appeal (the “2022 Board Decision”).

18.In HCAL 1101, by Form 86 dated 2 September 2022, APs seek leave to challenge the 2022 Board Decision.

19.As can be seen above, the 3 JR Applications arose over a number of years. They are related. But APs’ state of legal representation varied. It was only ultimately on 30 January 2024 when this Court, with co-operation of the parties, was able to direct a combined hearing of the leave applications for all 3 JR Applications. On that same date, I also granted APs leave to amend their Form 86 under HCAL 1101 (the “AF 86/1101”).

20.Having heard parties and having read their written submissions[1], I have decided to grant leave to APs in HCAL 1101 on all 4 grounds as stated in AF 86/1101, but decline leave in HCAL 796 and 2644. The reasons are as follows.

21.In respect of HCAL 1101, in my view, and applying the test laid down by the Court of Final Appeal Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14-17, the grounds set out in the AF 86/1101 are reasonably arguable with realistic prospects of success.

22.In respect of HCAL 796 and 2644:

(a) The decisions under challenge have been superseded by the 2019 Claims, the 2020 Appeal, the 2022 Board Decision, and HCAL 1101. This is not only clear from the history of the matters, but has in fact (at least implicitly but fairly) been accepted by Mr Abraham Chan SC, appearing for the APs, who has stated in his written submissions that:

“Although the Hossain family has filed two other Form 86s for [HCAL 796] and [HCAL 2644], they are happy to put primary reliance on [AF 86/1101].”[2]

“Although the [3] JR Applications each formally seek to impugn different decisions, the focus is squarely on the 2022 [Board] Decision.”[3]

“The Hossain family respectfully invites the Court to grant the relief sought in [AF 86/1101].”[4]

(b) I have considered the various authorities cited by Ms Souza on behalf of the DLA, which include Chit Fai Motors Co Ltd. v Commissioner for Transport [2004] 1 HKC 465 (CA) at §20, Re Abakwam Obinna [2022] HKCA 1835 at §19, Cayao Kristyl Mei Tupas v Torture Claims Appeal Board [2022] HKCA 833 at §20, and R v Director of Immigration [2020] HKCFI 1308 at §§9, 30-31, which I apply. I accept Ms Souza’s submissions that HCAL 796 and 2644 have become academic;

(c) For this reason alone, those 2 applications should in my view be dismissed. Mr Chan fairly does not argue otherwise.

23.I make no cost order in respect of HCAL 796.

24.In respect of HCAL 2644, I note that APs’ counsel are acting through the Bar Free Legal Service Scheme. Their instructing solicitors are acting on a pro bono basis. The applications are important to them. As now identified by Mr Chan, issues of some importance are involved, and in particular, what the legal and constitutional duties of the Board are under Article 3 of the Hong Kong Bill of Rights Ordinance (Cap. 383) in deciding whether to refoule seriously ill minors where there are concerns on whether their acute medical needs can be met by the receiving state. I am grateful to the DLA and Ms Souza for the assistance they have rendered. Ms Souza has also fairly accepted that no order is the fair and usual order in the circumstances. In the exercise of my discretion, I make no order as to costs.

25.Costs of HCAL 1101 be in the cause of the substantive application.

26.I formally grant leave to all APs in HCAL 1101 on all 4 grounds as stated in AF 86/1101. The procedural steps will from now continue to be governed by the Rules of the High Court. Mr Chan seeks no other direction, and I grant no further at this stage.

Mr Abraham Chan SC leading Mr Kim Joseph McCoy, instructed by Patricia Ho & Associates, for the 1^st to 4^th Applicants, in HCAL 796/2018, HCAL 2644/2019 and HCAL 1101/2022

Ms Denise Souza instructed by Department of Justice, for the Putative Interested Party in HCAL 2644/2019

Department of Justice, for the Putative Respondent in HCAL 2644/2019, excused from attendance

Department of Justice, for the Putative Interested Party in HCAL 796/2018 and HCAL 1101/2022, excused from attendance

The Putative Respondent in HCAL 796/2018 and HCAL 1101/2022, excused from attendance