Sikdar Ratna and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 221/2020

[2025] HKCFI 5502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 221 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the 1st Applicant in open court and the 2nd Applicant being absent;

Order by Deputy High Court Judge Levy:

1.  Leave to the 1st and 2nd applicants to file the Leave Application out of time.

2.  Leave be granted to the 1^st and 2^nd Applicants to apply for judicial review of the Board’s Decision, and the 1^st and the 2^nd Applicants shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.  Since the 2^nd Applicant is a minor, a copy of this decision is to be sent to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

Observations for the Applicants:

Introduction

1.By A “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 21 January 2020, the applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 8 February 2017  (“Board’s Decision”) dismissing the appeal by the husband of the 1^st applicant (“Husband”) , the 1^st and 2^nd applicants against two decisions of the Director of Immigration (“Director”) respectively dated 20 October 2015 and 12 December 2016 (“Director’s Decisions”) rejecting their non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000221_2020_files/the_Board's_Decision.pdf

2.The 1^st applicant is the mother of the 2^nd applicant, a minor son born in Hong Kong of the Husband and the 1^st applicant. An application for judicial review by a child claimant should only proceed in accordance with the regime under to O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) : see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971at [57]. As the 2nd applicant was not legally represented, the court had written to the 1^st applicant to remind her to approach the Legal Aid Department or to engage a private lawyer to represent the 2^nd applicant. The Director of Legal Aid had refused the application for Legal Aid by the 1^st and 2^nd applicants.

3.At the request of the 1^st and 2^nd applicants for an oral hearing, the court on 26 August 2025, the 1^st applicant attended in person for herself and on behalf of the 2^nd applicant. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra)

4.The basis of their claim was that, if refouled to India, the 1^st and the 2^nd applicants would be harmed or killed by Maoist because of the Husband’s refusal to join in their illegal activities. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

Discussion

5.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. In the Form 86 and supporting affirmation, apart from loosely alluding in the supporting affirmation to the failure of the Board to take into account the nexus of the political parties and official corruption in India, 1^st and the 2^nd applicants provided no such grounds at all.

7.At the hearing on 26 August 2020, this court asked the 1^st applicant whether she had any grounds she wished to submit in support of the Leave Application. The 1^st applicant stated that she had nothing to say for herself. On behalf of the 2^nd applicant, the 1^st applicant stated that the 2^nd applicant was studying in Hong Kong, and would like to be allowed to complete his education until Form 5 in Hong Kong as the education system in India would not be suitable for the 2^nd applicant. It was because the 2^nd applicant could not read or write Bengali. Since the Board’s Decision also concerned the Husband’s appeal, the court asked the applicant to clarify the situation regarding the Husband. The 1^st applicant informed the court that the Husband’s application for leave to apply for judicial review was dealt with in a separate case, and in fact she had lived apart from the Husband since last year.

8.Since the information regarding the Husband was only available at the hearing, the court therefore fixed a 2^nd hearing on 9 September 2025. The appearance was the same at the hearing on 9 September 2025. This court informed the 1^st applicant that the Husband’s application for leave to apply for judicial review against the Board Decision (HCAL 595/2017) was already dismissed by an order of the court dated 13 June 2019, and his application for leave to appeal to the Court of Final Appeal was dismissed on 25 September 2020. When the 1^st applicant was asked if she had any further things to add, the 1^st applicant repeated her request that the 2^nd applicant be allowed to stay to continue his studies in Hong Kong.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the 1^st applicant did not give evidence before the Board. The Board therefore assessed the 1^st applicant’s case with reference only to the documents placed before it. The Board alluded to the 1^st applicant’s raising of the non-refoulement claim after her second visit to Hong Kong when the permission to stay had expired. The Board therefore concluded that the 1^st applicant and the 2^nd applicant had failed to establish that there was not a real likelihood that they would suffer harm if refouled. The Board further found that internal relocation was available to the 1^st applicant. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that it is arguably that the Board seems to have failed to correctly apply the law relating to all the grounds and observed a high standard of fairness.

Regarding the 1^st applicant: non-compliance of the rule of fair play laid down in Brown v Dunn[4]

11.This rule is applicable to non-foulement claim hearings as laid down in Brown v Dunn was applied by analogy by the Court of Appeal in Re Masud Md[5] . The rule in Brown v Dunn:

“[32] … requires that if a cross-examiner intends to challenge a witness's evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

[33] There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”

12.The rule of Brown v Dunn was considered in a later Court of Appeal decision in Buniag Renante Lulu v Torture Claims Appeal Board[6]. The Court of Appeal at [25] clarified that:

“Re Masud Md did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps or lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide the applicant an opportunity to respond if he or she wishes to.”

13.In accordance with the principles derived from the rule of Brown v Dunn, the Board was obliged to draw to the attention of the 1^st applicant to the perceived inconsistencies in relation to her claimed risks set out in the documents placed before the Board especially the Board’s rejection of her claim on the basis of her failure to lodge the non-refoulement claim in the earliest opportunity. According to the Board’s Decision, the Board appears to have failed to give notice to the 1^st applicant that her delay in the lodging of the claim would lead to an adverse finding and the rejection of her account leading to her decision to depart India.

14.In the circumstances, it is reasonably arguable that the Board’s Decision is tainted by procedural unfairness, and error in law.

Regarding the 2^nd applicant

15.In the present case, the Board did not separately consider the relevant risks the 2^nd applicant might face if he were refouled. The following general propositions apply to the determination of a minor's non-refoulement claim by the decision-maker: Re Jasvir Singh[7], following Fabio Arlyn Timogan (supra.).

“[30] First.…

(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 child.

[31] Second, when dealing with a non-represented minor's judicial review leave application seeking to challenge the Board's rejection of the non-refoulement claim, the court should pay special attention to examine in the context of 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 been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

[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, 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].

[33] Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor's claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor's intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

16.In the Board’s Decision, there was a complete absence of the assessment of the 2^nd applicant’s personal circumstances. By virtue of the Board’s rejection of the claims made by the Husband and the 1^st applicant, the Board also rejected the 2^nd applicant’s claim. There was no consideration of the language difficulty as the 1^st applicant submitted on the 2^nd applicant’s behalf if refouled to India. Thus, it is reasonably arguable that the Board has failed to apply the highest standard of fairness of making a separate assessment of the 2^nd applicant’s personal circumstances.

17.Based on the principles discussed above, it is at least reasonably arguable that the Board’s Decision regarding the 1^st and the 2^nd applicants is tainted with procedural unfairness.

Whether to extend time for the late application

18.Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose. The Leave Application applicant was late for about 3 years, which period of delay is lengthy and substantial.

19.The 1^st applicant explained that she was illiterate and needed to rely on the help of other people. She had assumed that the immigration officers would inform her about the time limit when she regularly reported to the Immigration Department. However, she was only asked to go to the High Court to make the application for judicial review after 3 years of the Board’s Decision.

20.I do not find the applicant’s explanation plausible, and find that there is in fact no good reason for the delay. However, having regard to the the discussions above, I believe that fairness requires this court to exercise its discretion to grant an extension of time to file the Leave Application.

21.In the premises, and for all the given reasons, I am of the view that Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Conclusion

22.Leave to the 1^st and 2^nd applicants to file the Leave Application out of time.

23.I grant leave to the 1^st and 2^nd applicants to apply for judicial review of the Board’s Decision, and direct that the 1^st and the 2^nd applicants shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

24.Since the 2^nd applicant is a minor, he should be legally represented at the judicial review hearing. Hence, I direct my clerk to send a copy of this decision to the Official Solicitor as well as to the Director of Legal Aid for their necessary action.

Dated the 3^rd day of December 2025

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