Read the full judgment text of CACV 331/2020 on BabelCite. This Court of Appeal judgment was delivered on 28 March 2022 before Barma JA, Au JA, Coleman J.
Administrative law – non-refoulement claims – judicial review – leave to apply – whether Board hearing is appeal or hearing de novo – whether Board obliged to consider matters beyond notice of appeal – non-refoulement claims by minor children – whether claims must be separately assessed – whether Board's assessment of internal relocation was adequate – Indonesian applicant and her two minor children born in Hong Kong – apostasy from Islam to Christianity – adultery – mixed-race children born out of wedlock – fear of harm from estranged husband ZM – alleged corruption of Indonesian police – Director's rejections – Board's dismissal of appeal – Deputy High Court Judge's refusal of leave – Court of Appeal allowing appeal. Whether the Board was obliged to consider issues not raised in the applicants' notice of appeal but which had been considered by the Director – held, the Board hearing is a hearing de novo, not strictly an appeal, requiring the Board to consider all the material placed before it, and the Board's decision supersedes that of the Director, so the Board is not confined to the contents of the notice of appeal. Whether the Board erred in law by deciding the minor children's claims as a composite claim with the 1st applicant's claim – held, following Fabio Arlyn Timogan and Re Jasvir Singh, non-refoulement claims by children, even if based on the same primary facts, are separate and must be considered having regard to the personal circumstances of each child; dismissal of a parent's claim should not automatically lead to dismissal of the children's claims without further and distinct consideration; ill-treatment that does not reach the level of persecution in the case of an adult may do so in the case of a child. Whether the Board had properly assessed the viability of internal relocation – held, it is at least arguable that the Board failed to take into account relevant factors, namely the 1st applicant's conversion to Christianity and the existence of the mixed-race, Christian children, which bore on the viability of internal relocation. Outcome: appeals allowed; all three applicants granted leave to apply for judicial review of the Board's Decision dated 21 September 2018; applicants' costs of the appeal to be in the cause of the judicial review; costs of all applicants to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Obligation of the Board to consider issues not raised in the notice of appeal · Separate assessment of the minor children's non-refoulement claims · Adequacy of the Board's assessment of internal relocation
Outcome: Appeals allowed; all three applicants granted leave to apply for judicial review of the Board's Decision
Cited by 14 cases · Cites 8 cases