Re Shahul Hameed Beer Mohamed and others [2026] 4 HKC 259, [2026] HKCA 632 (Albert NB Wong)
Albert NB Wong represented the 1st to 7th applicants in Re Shahul Hameed Beer Mohamed and others [2026] 4 HKC 259, [2026] HKCA 632.
The applicants were members of a family. The 1st applicant (Father) was an Indian national, the 2nd applicant (Mother) was an Indonesian national, and the 3rd to 7th applicants were their daughters (Daughters). The Father, having entered Hong Kong illegally in 2008, raised a non-refoulement claim in 2018 on the basis that if refouled to India he would be harmed or killed by a group of Hindu bullies as he was a Muslim, by his friend, and given the political situation in his hometown (F’s Claim). The Mother, previously married in Indonesia, entered Hong Kong as a foreign domestic helper in 2010. She fell in love with Father in Hong Kong, and gave birth to her eldest daughter in 2012, both of which did not depart and overstayed in Hong Kong. In 2013, the Mother and her eldest daughter lodged a non-refoulement claim on the basis that if they were refouled to Indonesia, they would be harmed or killed by the Mother’s ex-husband or they would be discriminated by her family members or community. Between 2013 and 2018, Mother further gave birth to four daughters and lodged non-refoulement claims on behalf of the three elder daughters (ME’s Claim) and the youngest daughter (MY’s Claim). The Director of immigration (Director) assessed the claims separately. By three decisions, the Director dismissed F’s Claim (ImmiD Decision 1), ME’s Claim (ImmiD Decision 2) and MY’s Claim (ImmiD Decision 3) respectively. The Father and the Mother acted in person and appealed against Immi Decision 1 and ImmiD Decision 2 to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (Board). The Board dismissed their appeals (Board Decision 1), ruling, inter alia that for F’s claim, it would be reasonable for the applicants as a family to internally relocate to Mumbai or New Delhi, and for ME’s Claim, the Mother and her family could reasonably and safely relocate to Jakarta, Indonesia. The Mother also acted in person and lodged an appeal against ImmiD Decision 3. In dismissing the appeal (Board Decision 2), the Board adopted the factual findings and reasons in Board Decision 1 and rejected the contention that there would be a real risk of harm to the youngest daughter because she was a Muslim and that harm arising from social discrimination would not be so serious to meet the requisite severity. Leave to apply for judicial review was refused by a judge of the Court of First Instance. The applicants appealed to the Court of Appeal. The principal contention was the Court of First Instance had failed to deal with ME’s Claim and MY’s Claim separately and to give adequate reasons thereto, especially the child specific risk in relation to the Daughters that they would be bullied and discriminated in the society and would be denied schools because they were mixed-race children and without a father (Mixed-Race Child Discrimination Risk).
Held, unanimously, dismissing the appeal, that:
Per Au JA
(1) Non-refoulement claims by children were separate claims from their parents’ claims. In principle, the decision-maker should consider each claim by giving separate consideration to the personal circumstances of each claimant. Ill-treatment which may not reach the level of persecution for an adult may do so in the case of a child. When dealing with a non-represented minor’s application for leave to apply for judicial review challenging the Board’s rejection of his 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 claim had been properly considered by the Board in a manner consistent with the above propositions, and to consider on a case-by-case basis whether there existed 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. Fabio Arlyn Timogan & Ors v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2021] 2 HKC 458; [2020] HKCA 971; and Re Jasvir Singh [2021] 3 HKC 126; [2021] HKCA 53 followed (para 36).
(2) In a case involving a non-represented minor, the Board would have erred in law or acted irregularly procedurally in not following Fabio principles to consider a child-specific risk independently when there existed materials before the Board which could or would suggest or raise a child-specific risk. In the present case, notwithstanding that it was reasonably arguable the Board’s decision in finding the Daughters could safely return to Jakarta in Indonesia was tainted with procedural unfairness in failing to or to properly consider the Mixed-Race Child Discrimination Risk under the Fabio principles and that the Board did not consider the Mixed-Race Child Discrimination Risk in considering whether the Father, Mother and Daughters could be returned to India, there was no arguable ground to challenge its decision in also finding that the Daughters could safely return to live in Mumbai or New Delhi with their parents. The fact that Father and Mother had not specifically raised the existence of the Mixed-Race Child Discrimination Risk in India despite repeated inquiries from the Board and that they had had ample time and opportunities to consider the position showed that there was never a concern of such risk. Fabio Arlyn Timogan v Evan Ruth Esq (above) considered (paras 43-46, 48-50, 53-57).
[The above is excerpted from the headnote to the report in HKC.]
