Bazeer Ahamed Sanfar Alias Mohamed Ismail Zawahir and Others v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 382/2020

[2022] HKCA 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 382 OF 2020

(ON APPEAL FROM HCAL 909/2018)

BETWEEN

__________________________

________________________

JUDGMENT

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.On 3 August 2020, Deputy High Court Judge Bruno Chan (“Judge”) refused to grant leave to the Applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 24 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 July 2017 rejecting the Applicants’ non-refoulement claims.

2.On 17 August 2020, the 1^st Applicant filed, on behalf of all the Applicants, a Notice of Appeal against the Judge’s decision.

Background

3.The 1^st Applicant is a Sri Lankan national. He entered Hong Kong on 25 December 2004 and was permitted to remain as a visitor until 24 January 2005. He did not leave Hong Kong upon expiry of the permission and was arrested by police on 21 February 2006. He raised a torture claim on 23 February 2006, which was rejected by the Director on 4 January 2013. His appeal to the Board on the torture claim was dismissed on 3 October 2013. He raised his current non-refoulement claim on 15 October 2013.

4.The 2^nd Applicant is an Indonesian national. She was employed in Hong Kong as a foreign domestic helper from November 2006 until 31 May 2010, when her last contract was prematurely terminated. She did not leave Hong Kong and was arrested by police on 8 July 2010 for overstaying. She raised a torture claim on 23 August 2010, which was deemed withdrawn upon her failure to complete a Torture Claim Form on 11 December 2012. She lodged her current non-refoulement claim on 11 September 2014.

5.The 1^st and 2^nd Applicants married in Hong Kong on 13 June 2014. The 3^rd and 4^th Applicants are their children, born on 13 October 2012 and 24 May 2015 respectively. The 2^nd Applicant raised non-refoulement claims on behalf of the 3^rd and 4^th Applicants on 11 September 2014 and 27 October 2015 respectively.

6.The 1^st Applicant’s claim was based on the fear that, if he returned to Sri Lanka, he would be harmed or even killed by Rishad Bathiudeen (also spelt Badurdeen), a politician of the People’s Alliance Party, and/or his supporters, and also by the supporters of Noordeen Mashoor, a Muslim Congress Party politician, who believed that the 1^st Applicant had betrayed them. The factual background of the 1^st Applicant’s claim was summarized by the Judge at [3] – [6] of his decision as set out in the Form CALL-1 ([2020] HKCFI 1683).

7.The 2^nd Applicant’s claim was based on the fear that, if she returned to Indonesia, she would be harmed or even killed by her parents and/or the man whom they had arranged for her to marry without her consent. The factual background of her claim was summarized by the Judge at [7] – [8] of the Form CALL-1.

8.By notice of decision dated 11 July 2017, the Director assessed the 1^st and 2^nd Applicants’ claims on all applicable grounds (except torture risk, which had previously been disposed of) and assessed the 3^rd and 4^th Applicants’ claims on all applicable grounds. The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4] The Director determined their claims against them.

9.The Applicants appealed to the Board against that decision. An oral hearing was held on 4 December 2017, during which the 1^st and 2^nd Applicants were interviewed by the Board. The Board found that the 1^st and 2^nd Applicants were not truthful witnesses due to the serious conflicts and discrepancies within their individual testimony as well as the implausibility of some of their key allegations. The Board rejected the main factual assertions by each of the 1^st and 2^nd Applicants, and concluded that there was no real risk of harm in the event of the 1^st Applicant returning to Sri Lanka and the 2^nd Applicant returning to Indonesia. As a result, on 24 April 2018, the Board dismissed the 1^st and 2^nd Applicants’ appeals with reference to all the grounds applicable to them.

10.As for the 3^rd and 4^th Applicants, the Board noted that their mother, the 2^nd Applicant, raised claims on their behalf based on their being of mixed race. The 2^nd Applicant advanced very little information in respect of these claims and declined to elaborate further when invited to do so at the Board hearing.

11.The Board was unable to find any information to suggest that children of mixed race would be targeted for harm in either Indonesia or Sri Lanka.

12.The Board considered, and rejected as not being credible, both the 1^st and 2^nd Applicant’s claims (also raised in their own cases) that their families opposed their marriage and as a result may harm the 2^nd Applicant and/or the children in the event of their removal to either Sri Lanka or Indonesia (see paragraphs 78 to 80, 83, 106 and 108 of the Board’s decision). The Board also considered, and rejected, the possibility of risk of harm to the children from the father’s enemies, in the event of their being removed to Sri Lanka.

13.In addition, the Board considered, and rejected, the 2^nd Applicant’s assertions that harm could come to the 3^rd and 4^th Applicants in either Indonesia or Sri Lanka because they are of mixed religious heritage (Islam and Christianity) and the 2^nd Applicant’s conversion from Christianity to Islam.

14.Based on country of origin information available to the Board, it found that the 3^rd and 4^th Applicants would be able to practise their Muslim faith in Sri Lanka, and did not accept that in Indonesia they would be subjected to harm due to their Muslim faith, since Indonesia is a predominantly Muslim country. In addition, because the Board did not accept the 1^st and 2^nd Applicants’ factual assertions including their claims that their families opposed their marriage, the Board did not accept that anyone would want to harm the 3^rd and 4^th Applicants.

15.Accordingly, on 24 April 2018 the Board also dismissed the 3^rd and 4^th Applicants’ appeals with reference to all the applicable grounds.

Decision of the court below

16.On 23 May 2018, the Applicants sought leave from the Court of First Instance to apply for judicial review against the Board’s decision of 24 April 2018. In his supporting affirmation, the 1^st Applicant stated that he is Muslim, his wife is from a different country, his children were born in and studying in Hong Kong, and that he could not return to Sri Lanka as his enemies are in a powerful position in government and as the police fail to protect Muslims in the ongoing ethnic conflicts. He also deposed that he needed to live together with his wife and children.

17.Upon consideration of documents only, on 3 August 2020 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [13] – [17] of the Form CALL-1 ([2020] HKCFI 1683) as follows:

“ 13. On 23 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated their claim that their lives would still be in danger in their home country and that he and his family should not be deported from Hong Kong as his children go to school here. Nor did they request for any oral hearing for their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision, I do not find any reasonably arguable basis for their intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on their credibility for the thorough and detailed analysis and reasoning set out in paragraphs 54 – 113 of its decision with the benefit of hearing oral evidence from both A1 and A2 and their answers to questions raised of their claims during their appeal hearing, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

16. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Sri Lanka or Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.”

Appeal to this Court

18.On 17 August 2020, the 1^st Applicant, on behalf of all the Applicants, filed a Notice of Appeal against the Judge’s decision, and consented in writing for the appeal to be heard by two judges. The stated grounds of appeal were that Rishad Bathiudeen, the People’s Alliance politician who sought to harm the 1^st Applicant, was still in power in Sri Lanka, and that even if the Applicants wished to move to Indonesia, the 1^st Applicant might not be granted a visa to stay there, such that the Applicants would be split up as a family.

19.Pursuant to the Court’s directions of 17 December 2020, the 1^st Applicant lodged written submissions on appeal on 14 January 2021. What was lodged, however, was not submissions but what purported to be a statement given by the 1^st Applicant as recorded by the police at Puttalam Police Station on 4 April 2004, together with an undated English translation of that statement done by a translator called Abbas. That statement described the incident on 4 April 2004 in which the 1^st Applicant was beaten by a mob of supporters of Noordeen Mashoor who believed that the 1^st Applicant had betrayed them.

20.When the appeal first came before Lam VP and Yuen JA on 8 February 2021, the 1^st Applicant handed up another English translation of the same statement, stated to have been done by a different translator called Rizvi on 16 September 2020. As it did not appear that the police statement had been considered below, the court asked the 1^st Applicant to supply copies of the transcript of the interrogation he said he was subjected to on 4 April 2004 together with its English translation, referred to in the Board’s decision (as explained below). The hearing was adjourned.

21.The hearing was scheduled to resume on 7 June 2021, but the 1^st Applicant was then hospitalised for injuries and as a result the Applicants did not appear. The appeal was therefore further adjourned.

22.Meanwhile, the 1^st and 2^nd Applicants had applied for and been refused legal aid but the 3^rd and 4^th Applicants had been granted legal aid. Pursuant to the court’s directions, written submissions in support of their appeal were lodged on behalf of the 3^rd and 4^th Applicants by Ms Kirsteen Lau of counsel on 30 August 2021. On 9 November 2021, the Director, through the Department of Justice, wrote to the court indicating that he takes a neutral stance in these proceedings and wishes to be excused from any hearing of the appeal.

23.Accordingly, at the hearing of the appeal on 17 February 2022, the 1^st and 2^nd Applicants acted in person while Ms Lau appeared on behalf of the 3^rd and 4^th Applicants. Because of the pandemic and public health considerations, the hearing was conducted via video conferencing facilities with the Applicants taking part from a room in the High Court Building specially designated and equipped for that purpose. Neither the 1^st nor the 2^nd Applicant had any oral submissions to add to the written materials in the file.

Discussion

24.In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purpose of this appeal, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Although in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

(3) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

The 1st and 2nd Applicants

25.The 1^st and 2^nd Applicants did not in the Notice of Appeal or their submissions identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.

26.In the present case, the Board rejected the 1^st and 2^nd Applicants’ claims for non-refoulement protection based mainly on its adverse findings on their credibility, after thorough consideration of the facts as shown in its very detailed reasons. The Board concluded that there was no real risk of harm for either the 1^st or 2^nd Applicant upon refoulement. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are vitiated on public law grounds.

27.Repetition of factual assertions which had been rejected by the Board does not constitute such public law grounds. The materials presented by the 1^st and 2^nd Applicants to the court below and before us do not provide proper ground for challenging the Board’s decision.

28.As to the copy of the purported police report (lodged with the written submissions dated 14 January 2021), it had not been included in the documents submitted to the Judge. At the hearing on 8 February 2021, the 1^st Applicant produced to the Court two different copies of what appeared to be the same report with two different English translations by two different translators. Initially the applicant said he had placed the report before the Board and the Director. After the Court had asked him for dates when he received the documents and he responded that they were received in late 2020, he accepted that the documents had not been placed before the Board or the Director. As such, the report and the two translations are to be treated as new evidence that the 1^st Applicant wishes to adduce on appeal and in his application for leave for judicial review.

29.The report appeared to be an extract from an “Information Book of Election maintained by the police station of Puttalam” recording a report by the 1^st Applicant on 4 April 2004 at 18:10 hours concerning an incident on the same date when he was allegedly assaulted by the supporters of Noordeen Mashoor.

30.The 1^st Applicant obviously wished to refer to the police report to support his claim of having been attacked by those supporters (as recited by the Board at [41] of its decision). However, he did not explain what efforts he had made to obtain the report to support his claim before the Director and his appeal to the Board. Nor did he explain why he could not have produced it to the Director and the Board.

31.The report is self-serving evidence because its veracity stemmed from the 1^st Applicant himself. Whilst such evidence could be useful in some cases, the evidence had to be weighed carefully particularly when there is evidence pointing against the veracity of the statements in the report. In the present case, it is significant that, at [74] of its decision, the Board made reference to another piece of evidence which contradicts the 1^st Applicant’s version of events:

“ 74. The Board finds the first named Appellant’s evidence regarding the alleged problems he had with Noordeen Mashoor’s people following the 2004 election significantly different. In light of the discrepancies as discussed above, and the Board’s concerns regarding the credibility of the first named Appellant’s claims in respect of his political profile and activities, it does not accept his claims regarding what happened after the 2004 election are credible. The Board has taken into consideration the transcript submitted by the first named Appellant of the alleged interrogation by Anwar and Tajuddin, however it places no weight on this evidence. Firstly, the Board notes that the contents of the transcript are not consistent with the first named Appellant’s evidence of what he was allegedly questioned about during this interrogation. The Board specifically notes the transcript provides that the first named Appellant was asked to report to Noordeen’s house the night before this alleged interrogation and that he had voluntarily attended, which is fundamentally different from his account of being dragged to Noordeen’s house by a mob. Secondly, it found the first named Appellant’s explanation for how he obtained a copy of the recording vague and unconvincing. He claimed that his brother had obtained a copy of the recording from “them” but he was unable to say how his brother was able to get it or why his interrogators would give his brother a copy.”

32.At the hearing of 8 February 2021, we drew the 1^st Applicant’s attention to this paragraph and asked the Tamil interpreter to translate it to him. We also adjourned the appeal to enable the 1^st Applicant to produce to the Court the transcript referred to in that paragraph. The 1^st Applicant duly supplied that transcript on 22 February 2021. We have examined the transcript and found that the Board’s observations at [74] was justified.

33.In the circumstances, we are of the view that the well-established criteria for admission of fresh evidence on appeal are not satisfied. The usual conditions as set out in Ladd v Marshall [1954] 1 WLR 1489 are that (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed or it must be apparently credible, though it need not be incontrovertible. These conditions have been held applicable in appeals in non-refoulement cases: Halim Abdul v Kay Ransome, Esq [2019] HKCA 354; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Abayomi Bamidele Fayomi v Chief Secretary for Administration [2018] HKCA 194. In particular, we are not satisfied that the new evidence could not have been obtained with reasonable diligence for use in the court below. Nor are we satisfied that the evidence is such as is presumably to be believed. The first and third criteria are not met and, there being no exceptional ground for admitting the documents for the purpose of this appeal, they should not be accepted as part of the evidence.

34.Having considered the materials before us, we have come to the view that there is no valid ground to challenge the decision of the Judge to refuse leave to the 1^st and 2^nd Applicants to apply for judicial review of the Board’s decision. For these reasons, the 1^st and 2^nd Applicants’ appeals are dismissed.

The 3rd and 4th Applicants

35.Turning to the 3^rd and 4^th Applicants’ appeal, as this Court[5] held in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board [2020] HKCA 971 at [34], the following principles apply in cases of child claimants:

(a) 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 circumstances of each claimant;

(b) 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 though 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 a parent’s claim that the children’s claims could be dismissed without further consideration of their personal situations; and

(c) Ill-treatment which does not reach the level of persecution in the case of an adult may do so in the case of a child.

36.Further, in Fabio Arlyn Timogan at [45] – [49], the court stated that whilst the lack of legal representation for an adult claimant at the second-tier hearing (i.e. the hearing of the appeal/petition before the Board) is not in itself a ground for holding that the proceedings were unfair, different considerations apply to cases involving children claimants, and that serious consideration should be given to having a Duty Lawyer represent children claimants of tender age in the Board hearing notwithstanding their claims had been rejected by the Director.

37.Fabio Arlyn Timogan, however, is not authority for the proposition that any decision of the Board in relation to children claimants of tender age must be quashed if they were not legally represented. What the applicable high standard of fairness requires in a case depends on the facts of that case. In Re Jasvir Singh [2021] HKCA 53, the Court of Appeal[6] held:

“ 31. … 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.”

38.Thus, for example, in Re Palingayen Rosalyn Ringor [2021] HKCA 84, the Court of Appeal[7] found that the Board had specifically considered the risk of discrimination to the child claimant there (born in 2015) in the event of refoulement on the ground of her being of mixed race and born out of wedlock, and that there was nothing to indicate that the merits of her claim were not adequately explored before the Board due to the lack of legal representation such that the high standards of fairness were not met.

39.In the present case, the submissions advanced by Ms Lau on behalf of the 3^rd and 4^th Applicants may be summarised as follows:

(1) Whilst the family had legal representation at the first-tier process before the Director, in the Director’s decision the 3^rd and 4^th Applicants’ claims were treated as a composite claim with that of their parents.

(2) The 1^st and 2^nd Applicants were unable properly to represent the interests of the 3^rd and 4^th Applicants before the Board. The Board itself recognised that there was very little information advanced by the 2^nd Applicant for the 3^rd and 4^th Applicants’ claims.

(3) The Board considered the persecution risk for the 3^rd and 4^th Applicants on account of race and religion and their connection to the 1^st Applicant, but gave insufficient separate consideration to the torture risk, BOR 2 risk or BOR 3 risk faced by them.

(4) Beyond the race and religion of the 3^rd and 4^th Applicants, the Board did not consider the personal circumstances of the children and did not make its own enquiries as to potential sources of child-specific risks in both countries.

(5) The Board did not make any assessment on internal relocation. The Judge was wrong to rely on the Director’s assessment on internal relocation.

40.Although these points had not been raised in the court below and have not been raised in the notice of appeal or by a supplementary notice of appeal, in the circumstances of this case we are prepared to consider them on their merits.

41.It is evident from the Board’s decision that, to its credit, even though the hearing took place well before this Court’s decision in Fabio Arlyn Timogan, the Board had taken care to assess the 3^rd and 4^th Applicants’ claims separately from their parents’ claim.[8] In particular, the Board specifically considered the risk of discrimination to the 3^rd and 4^th Applicants in the event of refoulement due to their being of mixed race and allegedly of mixed religion. This is clearly not a case in which the Board dealt with the children’s claims as part of the parents’ claims without giving them separate consideration.

42.We accept that the parents’ abilities in representing the interests of the 3^rd and 4^th Applicants before the Board were limited. The matter however needs to be looked at in context. The risk of discrimination for being of mixed race was investigated by the Board, but it was unable to find any information to suggest that children of mixed race are targeted for harm in either Indonesia or Sri Lanka.[9] Nor have the 3^rd and 4^th Applicants’ legal representatives since appointed been able to point to anything that suggests there is any such risk. As for the alleged risk arising from being of mixed religion, the Board did not accept that the 3^rd and 4^th Applicants are of mixed religion in the first place, since their mother, the 2^nd Applicant, had converted to Islam – the religion of their father, the 1^st Applicant, prior to their marriage.[10] There is simply nothing to suggest that legal representation of the 3^rd and 4^th Applicants before the Board would advance this point any further. The Board also specifically considered whether the 3^rd and 4^th Applicants, as Muslims, would face risks or difficulties in practising their religion in Sri Lanka and Indonesia, and concluded that there was no risk of harm.[11]

43.As to the complaint that the Board did not make enquiries as to potential sources of child-specific risks in either country, even with the help of legal representation now there is nothing that can be pointed to that may give rise to some other risks to the 3^rd and 4^th Applicants. This case may be contrasted with, for example, the case of Fabio Arlyn Timogan itself, where there were letters, among the papers submitted to the Board, suggesting that the children were stateless persons. In the present case there is no issue of statelessness as the 3^rd and 4^th Applicants have a right of abode in Sri Lanka and Indonesia.[12]

44.Further, with respect, the argument that the Board did not give sufficient separate consideration to the torture risk, BOR 3 risk and BOR 2 risk faced by the 3^rd and 4^th Applicants has no substance. The Board had considered the possible risks based on their circumstances and concluded there was no real risk they would face any of the proscribed forms of harm should they go to either Sri Lanka or Indonesia.[13]

45.In our view, the Board had properly assessed the 3^rd and 4^th Applicant’s claims separately from the parents’ claims and duly given reasons for rejecting them. There is nothing before us to indicate that the merits of their claims were not fully or adequately explored before the Board due to the lack of legal representation such that the applicable high standard of fairness was not met. There being no reasonably arguable ground for judicial review of the Board’s decision, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53 and Paglingayen Rosalyn Ringor [2021] HKCA 84 and dismiss the appeals of the 3^rd and 4^th Applicants. The non-compliance with RHC Order 80 rule 2 may be treated as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court. It is unnecessary to deal with the complaint that the Judge was wrong to rely on the Director’s assessment on internal relocation.

46.In conclusion, the appeals of all the Applicants are dismissed. We make no order as to costs, save that the 3^rd and 4^th Applicants’ costs are to be taxed in accordance with the Legal Aid Regulations.

The 1^st and 2^nd applicants appearing in person

Ms Kirsteen J. Lau, instructed by Patricia Ho & Associates, assigned by the Director of Legal Aid, for the 3^rd and 4^th applicants