Read the full judgment text of CACV 32/2020 on BabelCite. This Court of Appeal judgment was delivered on 27 November 2020 before Hon Lam VP, Barma and Au JJA.
Administrative law – judicial review – non-refoulement claim – abuse of process – second application for leave to apply for judicial review in respect of the same Torture Claims Appeal Board decision – duty of full and frank disclosure – minors – non-refoulement claims by children as separate claims – procedural fairness – legal representation at Board hearing – next friend and solicitor under Order 80 Rule 2 – internal relocation – whether the Director and Board had properly considered the children's claims – 1st Applicant a Filipino national and overstayer whose non-refoulement claim was based on alleged threats from her Filipino husband – 2nd and 3rd Applicants are the children of the 1st Applicant born in Hong Kong – Director rejected claim on BOR 3, persecution, torture and BOR 2 grounds; Board dismissed appeal on 6 July 2017 – First judicial review application HCAL 608/2017 by the 1st Applicant alone refused by Wong J and not appealed – Second application HCAL 442/2018 out of time by all three Applicants without disclosing first application refused by Deputy High Court Judge Bruno Chan – Whether the 1st Applicant's second application is an abuse of process (Yes; following Khan Kamran and related authorities, the 1st Applicant acted in breach of her duty of full and frank disclosure by not disclosing the first application, and the appeal was properly struck out as an abuse of process) – Whether the Board considered the children's claims separately from the 1st Applicant's (The Adjudicator did make findings about the children's health, accommodation and education in Manila, and did not reject their claims solely because the mother's claim was rejected; however, the children had no legal representation at the Board hearing, the mother was the only witness, and the full strength of child-specific arguments was not put forward, leaving it reasonably arguable that the children should have had legal representation to meet the high standard of fairness) – Whether a child claimant's judicial review application must comply with Order 80 Rule 2 (Yes; such an application should proceed with the appointment of a next friend and acting by a solicitor, and this should be the norm rather than treating non-compliance as a mere irregularity) – Outcome: 1st Applicant's appeal struck out and dismissed; 2nd and 3rd Applicants' appeals allowed, Board's decision quashed as to them, and mandamus issued directing reconsideration by the Board with legal representation for the children; copy of judgment to be sent to the administrator of the Duty Lawyer Scheme; question of whether the Official Solicitor is obliged to act for child claimants left open.
Legal issues: Whether the 1st Applicant's second judicial review application is an abuse of process · Whether the Board properly assessed the 2nd and 3rd Applicants' claims as separate from the 1st Applicant · Whether a child claimant's application for judicial review must comply with Order 80 Rule 2
Outcome: The 1st Applicant's appeal is struck out and dismissed as an abuse of process. The 2nd and 3rd Applicants' appeals are allowed; the Board's decision is quashed in respect of the claims of the 2nd and 3rd Applicants and a mandamus issued to direct the Board to reconsider their claims with legal representation.
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