Fa and Others v. V. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 488/2021, [2026] HKCA 1048

On Appeal From [2021] HKCFI 3056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 488 OF 2021

(ON APPEAL FROM HCAL NO 136 OF 2019)

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J U D G M E N T

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

1.This is the 1^st to 3^rd Applicants’ application for relief from sanction for their failure to comply with an unless order made the Court on 12 July 2022 (“the Unless Order”) requiring them to lodge two sets of appeal bundle on or before 21 July 2022.

2.Having considered the papers before us, we consider that it is appropriate to deal with the present application on paper without an oral hearing pursuant Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND FACTS

3.The Applicants are nationals of Egypt. The 1^st Applicant is the mother of the 2^nd Applicant (daughter) and 3^rd Applicant (son). The 2^nd Applicant has now attained full age, while the 3^rd Applicant is now 17 years of age. They were both minors at the time when the Torture  Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) rejected their appeal, and when Deputy High Court Judge P Li refused to grant them leave to apply for judicial review.

4.The Applicants arrived in Hong Kong on 8 February 2017 with permission to remain up to 3 months. They did not depart upon the expiry of their limit to stay, and had overstayed in Hong Kong illegally. On 10 May 2017, they surrendered themselves to the Immigration Department. On 19 May 2017, they each lodged a non-refoulement claim, alleging that, if refouled, they would be harmed or killed by the 1^st Applicant’s ex-husband (“H”), his family and extremist Muslim organisations because of their religion (Coptic Christianity), which was regarded as apostasy and punishable by death in the Muslim communities.

5.According to the 1^st Applicant, she arranged a priest (“the Priest”) to have the 2^nd and 3^rd Applicants baptised on 4 November 2016, and certificates in respect of their baptism (“the Baptism Certificates”) were issued on a later date in 2017. In support of the Applicants’ claims, the 1^st Applicant also produced 2 letters dated 1 February 2017 (“the Priest’s Letters”) written by the Priest setting out, inter alia, their reasons for fleeing Egypt.

6.The Applicants’ non-refoulement claims were rejected by the Director of Immigration (“the Director”) on all applicable grounds on 29 September 2017. Their appeal against the decision of the Director was rejected by the Board on 9 November 2018. In gist, the Adjudicator of the Board (“the Adjudicator”) disbelieved the 1^st Applicant’s evidence given at the hearing of the Applicants’ appeal. The Adjudicator rejected the Applicants’ allegation that they were Coptic Christians. He found that the Applicants had always been Muslims and they would face no real risk of harm from H or his family, Islamic extremists or the Egyptian authorities if they were to return to Egypt.  

7.By the Re-Amended Form 86 dated 13 August 2021, the Applicants sought leave to apply for judicial review of the Board’s decision in reliance upon the following intended grounds of review:

(1)  the Adjudicator erred in law in failing to independently assess the claims of the 2^nd and 3^rd Applicants (“JR Ground 1”);

(2)  the Adjudicator erred in law in his assessment of the credibility of the 1^st Applicant (“JR Ground 2”); and

(3)  the Adjudicator erred in relying on certain findings concerning the credibility of the Priest made by the Adjudicator in another, unrelated appeal, thereby giving rise to procedural unfairness and apparent bias (“JR Ground 3”).

THE JUDGE’S DECISION

8.The Judge heard the Applicants’ application for leave to apply for judicial review on 16 August 2021, and made an order dismissing the application on 20 October 2021 (“the Order”). The Judge’s reasons for his decision were fully set out in his judgment dated 20 October 2021 (“the Judgment”). It is not necessary to repeat them in this judgment. The following brief summary should suffice for the present purpose:

(1)  JR Ground 1 was rejected because the Judge was satisfied that the Adjudicator had considered the claims of the Applicants cumulatively and individually without treating them as a composite one. Further, the Applicants were legally represented at the hearing before the Board, and no child specific issue was raised by the Applicants’ lawyer for consideration by the Adjudicator[1].

(2)  JR Ground 2 was rejected because it was open to the Adjudicator to find, on the whole of the evidence, that various documents relied upon by the 1^st Applicant (namely, “Identity card”, “Baptism certificates”, and “Priest’s letters”) were “non-credible” (ie fraudulent) documents, and the 1^st Applicant knowingly submitted and relied on them[2].

(3)  Lastly, in respect of JR Ground 3, the Judge held that the Adjudicator rejected the Priest’s Letters as being unreliable, not because of the lack of credibility of the Priest whose evidence in another case had been rejected by the Adjudicator, but because the contents of the Priest’s Letters were inconsistent with the 1^st Applicant’s own evidence, and also because the contents of the Priest’s Letters were largely hearsay and based on what was said by the 1^st Applicant, whose evidence the Adjudicator found to be not credible. As remarked by the Judge, the credibility of the Priest was “not pivotal” and was of “little bearing, if at all”[3]. The Judge also rejected the Applicants’ contention that the Adjudicator “had pre-judged the claim or had been prejudiced because he disbelieved the priest in the ‘Other Appeal”[4].

THE APPEAL

9.The Applicants lodged a Notice of Appeal against the Order on 1 November 2021. In the Notice of Appeal, the Applicants raised 3 grounds of appeal, which may be summarised as follows:

(1)  the Judge erred in rejecting the 2^nd and 3^rd Applicants’ claims solely on the basis of his rejection of the 1^st Applicant’s claim without properly considering the 2^nd and 3^rd Applicants’ respective claims on an individual basis (“Appeal Ground 1”);

(2)  the Judge erred in finding that the 1^st Applicant’s credibility was “rightly discounted” by her reliance on the “Priest Documents”, and the 1^st Applicant knowingly submitted the “non-credible documents” (“Appeal Ground 2”); and

(3)  the Judge erred in concluding that the credibility of the Priest was just one of the factors in assessing the credibility of the 1^st Applicant, and it had little bearing on the Adjudicator’s assessment of the overall credibility in the present case (“Appeal Ground 3”).

10.By directions given by the Registrar of Civil Appeals on 17 January 2022, the Applicants were required to lodge two sets of appeal bundle on or before 11 March 2022. By reason of the general adjournment of proceedings (“GAP”) during the period from 7 March 2022 to 11 April 2022, the original deadline for the Applicants to lodge the appeal bundle was extended by directions given by the Registrar of Civil Appeals on 15 March 2022 to 14 days after the end of GAP, ie on or before 25 April 2022. The Applicants failed to lodge the appeal bundle by the extended deadline.

11.On 12 July 2022, the Court made the Unless Order requiring the Applicants to lodge the appeal bundle within 7 days from the date of that order, ie by 21 July 2022[5], failing which their appeal would be dismissed without any further order of the Court. The Applicants failed to comply with the Unless Order. The Applicants’ appeal was accordingly dismissed.

THE PRESENT APPLICATION

12.The Applicants did not apply for relief from sanction within 14 days of the failure to comply with the Unless Order in accordance with Order 2, rule 4 of the Rules of the High Court. They belatedly applied for relief from sanction by a summons taken out on 5 December 2025 (“the Summons”). By then, they were over over 3 years out of time in making the application for relief from sanction.

13.In the 5^th affidavit of the 1^st Applicant (“the 5^th Affidavit”) filed in support of the present application, she stated, amongst other matters, the following:

(1)  Her failure to comply with the Unless Order was not intentional because there had been a change of her residential address after 4 July 2022, and she was not aware of and did not receive the Unless Order until she was informed by the Applicants’ current legal representatives (assigned by the Director of Legal Aid on 16 December 2024) in June 2025 that the Unless Order had been made, and given sight of a copy of the Unless Order in July 2025. She also explained that she did not inform the court of her change of address until 7 December 2022 because she was an unrepresented litigant in person at the time and was not familiar with the procedural requirements to timely inform the court of such change.

(2)  As a result of the trauma that she had suffered in the past and a surgical excision that she had undergone to treat her brain tumor on 20 August 2021, her mental health deteriorated and she constantly struggled with memory loss, which explained her delay in pursuing the appeal.

14.In support of the application for relief from sanction, the 1^st Applicant has produced two leases entered into by her as a tenant, which indicate that she (and her children) resided at an address in Jordan, Kowloon (being the address to which the Unless Order was sent) between 5 July 2020 and 4 July 2022. According to the 1^st Applicant, she did not renew the lease, and she (and her children) moved to an address in Mongkok, Kowloon after 4 July 2022. The 1^st Applicant has also produced some medical records, namely (i) a 1-page statement made by a psychologist dated 9 July 2025 (“the Psychologist’s Statement”), (ii) a referral letter from the Department of Neurosurgery of QEH to the Consultant in-charge, eye SOPC dated 11 October 2021 (“the Referral Letter”) for assessment and advice; (iii) an appointment slip to attend the Neurosurgical Clinic of QEH on 7 July 2025, and (iv) an appointment slip for a Brain MRI Examination on 17 April 2026, in support of her alleged medical condition and mental health deterioration.

15.In the Applicants’ written submissions lodged on 18 March 2026, counsel for the Applicants contend that the 1^st Applicant has provided genuine reasons for the Applicants’ unintentional failure to comply with the Unless Order, and it would be in the interests of the administration of justice to grant relief from sanction such that the Applicants’ appeal can be dealt with economically (in a procedural sense) and without undue delay.

DISCUSSION

16.Whether to grant relief from sanction for a failure to comply with an unless order involves an exercise of discretion. Under Order 2, rule 5(1) of the Rules of the High Court, when dealing with such an application, the court shall consider all relevant circumstances, including, amongst other things, the interests of the administration of justice, whether the application for relief has been made promptly, and whether there is a good explanation for the failure to comply with the order: see Ahammed Md Robin v Torture Claims Appeal Board [2020] HKCA 140, at §17 (per Kwan VP); and The Incorporated Owners of Yue Sun Mansion v Lake Side Elderly Centre Ltd, HCMP 556/2017 (unreported, 25 October 2017), at §12 (per Lam VP, as he then was).

17.It cannot be disputed that the Applicants have failed to act promptly in applying for relief from sanction. The delay of over 3 years on the Applicants’ part in taking out the present application is, on any view of the matter, substantial and inordinate. Even on the Applicants’ own account, by 23 June 2025, their solicitors were aware of the Unless Order and the fact that the Applicants’ appeal had been dismissed. The application for relief from sanction was, however, not made until 5 December 2025. There is no good explanation for the further delay in applying for relief from sanction between 23 June 2025 and 5 December 2025.

18.As for their reasons for failing to comply with the Unless Order, the primary explanation proffered by the 1^st Applicant is that the Applicants did not receive the Unless Order because they had moved from their residence in Jordan to an address in Mong Kok after 4 July 2022. The court record shows that the court’s letter dated 12 July 2022 setting out the terms of the Unless Order was sent to the Applicants’ last reported address in Jordan as stated in the Notice of Appeal by registered post on the same date, and it was not returned through the undelivered post. This Court has repeatedly held that it is the duty of a litigant to give the court an address to which correspondence or notice can come to his/her attention in a timely manner, and that the consequences of any delay or failure of communication arising from his/her failure to do so will fall upon the litigant. The 1^st Applicant only informed of the Court of the change of address for service on 7 December 2022, which was nearly 5 months after the said letter setting out the terms of the Unless Order was mailed to the Applicants. The Applicants must bear the consequences arising from their failure to timely inform the court of the change of their address.

19.In respect of the 1^st Applicant’s complaint of lack of legal knowledge and/or lack of legal assistance, it is well-established that ignorance of the law or procedural requirements is not a good excuse for a failure or delay in complying with procedural obligations laid down by the rules or a court order.

20.The 1^st Applicant has also sought to rely on her memory or health problems in support of the present application. Insofar as the Applicants contend that they had no knowledge of the Unless Order until June 2025, they would not have complied with the Unless Order whatever might be the mental or health conditions of the 1^st Applicant. In any event, although the 1^st Applicant claimed that she had a major surgical excision to remove a brain tumor in August 2021, she has not produced any medical records giving details of the relevant medical examination or diagnosis, hospitalisation, or treatment received by her. In the Psychologist’s Statement, it is only mentioned that the 1^st Applicant had difficulty with short-term memory loss, and she had told the psychologist about her memory loss which had been persistent “since the operation she had to remove part of her brain tumor 4 years ago”, and her “longer term memory of dates and times has been impacted”. The Referral Letter suggests that the 1^st Applicant was suffering from some blurring of vision following her operation in August 2021, while the medical appointment slips produced by the 1^st Applicant at most show that she attended medical check-ups from time to time. Even if the 1^st Applicant was suffering from some memory loss or health issues, we are not satisfied that the evidence produced by the 1^st Applicant is sufficiently cogent to show that her memory or health conditions were so severe that her ability to comply with the Unless Order was impaired.

21.In passing, we note that the 1^st Applicant has sought to explain, at §8 of her 5^th Affidavit, her failure to comply with the original directions given by the Registrar of Civil Appeals on 17 January 2022 and 15 March 2022 to lodge the appeal bundle, viz, she “does not recall ever receiving these two letters from the Court”. The court record shows that the two letters from the Registrar of Civil Appeals were sent to the Applicants’ last reported address in Jordan, without being returned through the undelivered post. They were sent prior to the Applicants’ change of address in July 2022. The inference is that she did receive the two letters. Her allegation that she has no recollection of ever receiving them is a lame excuse for her failure to comply with the directions given by the Registrar of Civil Appeals.

22.In all, we are of the view that the Applicants have failed to provide any good explanation for their failure to comply with the Unless Order.

23.Insofar as the interests of administration of justice is concerned, in a case where, as in the present case, the sanction imposed for a failure to comply with an unless order results in the dismissal of an appeal, the merits of the appeal would be a relevant, and could be an important, consideration. While an application for relief from sanction should not be turned into an occasion for a detailed examination of the merits of the appeal, the court should nevertheless form a provisional view of the merits of the appeal based on a quick perusal of the papers and the submissions of the parties. The apparent strength, or weakness, of the appeal is a factor which the court can properly take into account in deciding whether to exercise its discretion to grant relief from sanction. If the court comes to the view that the Applicants’ appeal has obviously no merit, the court should refuse to grant relief from sanction because it would be futile to do so.

24.In the present case, our provisional view is that none of the Applicants’ intended grounds of appeal has merit.

25.Insofar as Appeal Ground 1 is concerned, the Judge carefully considered the manner in which the Adjudicator analysed the claims of the Applicants, and came to the following conclusion at §26 of the Judgment:

“The analysis above showed that the adjudicator had considered the claims of the applicants cumulatively and individually. While he had not dealt with the claims of A2 and A3 in separate sections, he did bear in mind the interest of A2 and A3 in assessing each item of risk. He had taken into account various COI submitted by both parties. In my view, he had not treated the claims as a composite one. His approach is acceptable as there is no independent claim raised by A2 and A3. In any event, the applicants were represented by Ms Souza in the TCAB hearing. She had not raised any specific issue for the children to the adjudicator.”

26.We agree with the Judge that the Adjudicator had considered the claims of the Applicants cumulatively and individually. The 2^nd and 3^rd Applicants did not raise any claim independent of that of their mother (the 1^st Applicant). Their claims were premised fundamentally on the 1^st Applicant’s claim. The Adjudicator, after considering the evidence in the case, disbelieved the 1^st Applicant and rejected her claim. Once the 1^st Applicant’s claim was rejected, the children’s claims, which were premised on the same factual basis underlying the 1^st Applicant’s claim, were left with no factual support.

27.There was no material which gave rise to any concern that there might be some non-refoulement grounds relating specifically to a child in the present case. Neither was there any basis advanced before the Adjudicator that such ground existed or might exist.

28.The Applicants now point to 4 child-specific risks at §42 of the Re-Amended Form 86 which they say (i) the Board ought to have considered in the appeal, and (ii) the Judge failed to address in the Judgment. The alleged child-specific risks are: (i) the risk that the 2^nd and 3^rd Applicants may suffer mistreatment similar to that suffered by the 1^st Applicant should she be arrested, detained and/or killed in her home country, (ii) the risk based on their religion and religious conversion, (iii) the risk that they may be harmed by their violent and abusive father, and (iv) the risk that they may not be afforded the right to freedom of religious belief.

29.There is no explanation provided by the Applicants as to why these 4 alleged child-specific risks were not raised for the Adjudicator’s consideration notwithstanding that they were legally represented at the hearing before the Board. In any event, they have no substance. In respect of (i), (ii) and (iv), the alleged risks simply did not arise in the present case as the Adjudicator found that all Applicants had always been Muslims and they would not face any real risk of harm for being mistaken as Coptic Christians, or from the Egyptian society or anti-Christian groups[6]. In respect of (iii), the Board found there was no evidence of violence by H to the 2^nd or 3^rd Applicants in the past[7]. There was no reasonable ground to believe that the 2^nd and 3^rd Applicants would face any real risk of harm from their father upon refoulement. In our view, the argument that the Board failed to consider the alleged child-specific risks, or the Judge failed to address them in the Judgment, cannot even get off the ground.

30.In respect of Appeal Ground 2, the Judge considered the Applicants’ argument at §§45-46 of the Judgment, and reached the following conclusion at §47 of the Judgment:

“According to the evidence of A1, H helped her to apply for the identity card after conversion to Islam. She arranged A2 and A3 to be baptized by the priest. She asked the priest to issue the Baptism certificates. She must have told the Priest the reasons for her departing H and Egypt. In my view, she must have personal knowledge of the information recorded in those documents. I agree with the adjudicator, A1 knowingly submitted the non-credible documents. Her credibility is rightly discounted for submitting them.”

31.The Judge’s reasoning is sound. We see no basis to interfere with the Judge’s views expressed in the above passage.

32.In respect of Appeal Ground 3, as correctly held by the Judge, the Adjudicator rejected the Priest’s Letters not because of any adverse view that he might have formed of the credibility of the Priest in another case, but principally because the contents of the letters were inconsistent with the evidence of the 1^st Applicant and/or were incredible (for the reasons given by the Judge at §§52-56 of the Judgment). The Applicants’ complaint of apparent bias, or a risk of apparent bias, has no merit whatsoever.

33.We have considered other matters mentioned in sub-paragraphs (a) to (j) of Order 2, rule 5(1) of the Rules of the High Court, and all other relevant circumstances, but can see no good or sufficient reason for this Court to exercise its discretion to grant relief from sanction in the present case.

DISPOSITION

34.The Summons dated 5 December 2025 is dismissed, with no order as to costs. The Applicants’ own costs shall be taxed in accordance with the Legal Aid Regulations.

Mr Albert N B Wong, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the 1^st to 3^rd Applicants