Namubiru Perry and Others v. Torture Claims Appeal Board

HCAL 2469/2018 and

HCAL 867/2021

(Consolidated)

[2023] HKCFI 837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NOS 2469 of 2018 AND 867 OF 2021

(CONSOLIDATED)

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by counsel for the Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  HCAL 2469/2018 be consolidated with HCAL 867/2021 and Namubiru Perry shall be named as the 1^st Applicant, Victor Divine Precious Petronella as the 2^nd Applicant, Victor Destiny Chidera Mirembe as the 3^rd Applicant and Victor Daniella Chinenye Malayika as the 4^th Applicant;

2.  extension of time be granted to the 1^st and 2^nd Applicants to apply for leave to apply for Judicial Review of the decision of the Torture Claims Appeal Board (the “Board”) dated 7 December 2017;

3.  leave be granted to the 1^st and 2^nd Applicants to apply for Judicial Review of the Board’s decision dated 7 December 2017;

4.  extension of time be granted to the 3^rd and 4^th Applicants to apply for leave to apply for Judicial Review of the respective decisions of the Board dated 17 September 2020 and 8 October 2020 (the “Board’s respective decisions”);

5.  leave be granted to the 3^rd and 4^th Applicants to apply for Judicial Review of the Board’s respective decisions;

6.  costs of the 1^st to 4^th Applicants (the “Applicants”) be in the cause; and

7.  the Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 36-year-old national of Uganda who arrived in Hong Kong on 30 October 2014 as a visitor with permission to remain up to 31 October 2014 when she did not depart and instead overstayed, and on 3 November 2014 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Uganda she would be harmed or killed by her father and/or her father’s friend for refusing to marry the latter in return for the financial assistances provided to her father for the support of his family over the years, and upon her subsequent marriage to a Nigerian man in Hong Kong and given birth to their 3 daughters respectively in 2016, 2018 and 2019, she also raised a non-refoulement claim for each of them essentially on the same factual basis. They have all been released on recognizance pending the determination of their claims.

2.As will be apparent below, after their claims had subsequently been rejected by the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), A1 lodged 2 separate applications for judicial review of the Board’s decisions, with the one first in time for herself and her eldest daughter, and the later second application for her 2 younger daughters. Given their relationship and the fact that the claims of the children are primarily based on their mother’s claim which were all dealt with by the same Adjudicator for the Board on the facts common to all applicants and with the same legal representation on Legal Aid, for convenient purpose and to save time and costs, I proposed to deal with both applications together and accordingly directed that they be consolidated for hearing under Order 53 Rule 12 of the Rules of the High Court, Cap 4A.

Background of the Applicants

3.A1 was born and raised in Kampala, Uganda to a poor family where his father was a farmer and had had to rely on financial assistances to support the family from his friend Mosa, a wealthy local businessman who ran a clothing chain store, including paying for A1’s secondary school and university education, and in return her father agreed to marry A1 to Mosa.

4.In 2009 A1 was informed by her father of the said marriage arrangement with Mosa, of which A1 was unwilling and tried to delay the marriage by putting forward all sorts of excuses, which eventually led to a big quarrel in mid-2013 between them during which her father threatened to throw her out of his house, and so A1 left to take shelter in a friend’s place in Makindye.

5.One day in May 2013 A1 was abducted by some unknown men to a place where she was accused of breaking her father’s promise to marry Mosa, and was beaten with wooden sticks and leather belts until she eventually succumbed and agreed to the marriage that she was taken to a hospital for medical treatments, and thereafter she was brought to Mosa’s home in Entebbe where she was locked up in preparation for their marriage, during which she was raped by Mosa.

6.Eventually A1 was able to gain the trust of Mosa who then allowed her to go out for shopping when she later in September 2013 with the help of a friend made her escape to Pretoria in South Africa where she stayed in her friend’s place.

7.In July 2014 A1 secretly returned to Kampala, but when she heard that her father and Mosa were still looking for her everywhere, she felt it was no longer safe to remain in Uganda, and so she again fled to Pretoria, and with her friend’s help she on 28 September 2014 went to China, and from there she later travelled to Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection.

Non-refoulement Claims of A1 & A2

8.While being released on recognizance pending the determination of her claim, A1 married a Nigerian man in Hong Kong in 2015, and after giving birth to their eldest daughter, the 2^nd Applicant (“A2”) on 18 June 2016, she also raised a similar claim for her, and for which she jointly completed a Non-refoulement Claim Form (“NCF”) on 29 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 3 January 2017 the Director of Immigration (“The Director”) rejected their claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

10.In his decision the Director took into account of all the relevant circumstances of their claims and found no substantial grounds for believing that there would be any real and substantial risk of them being harmed or killed by A1’s father or Mosa upon their return to Uganda due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm either A1 or A2, that in any event A1’s problems with them were private personal disputes without any official involvement that state or police protection would be available to both A1 and A2 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Uganda with a large population of 38 million people spread across a vast territory of more than 241,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other part of the country away from her home district in large cities such as Jinja where it would be difficult if not impossible for A1’s father or Mosa to locate them.

11.On 28 April 2017 A1 and A2 lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as their Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a decision dated 7 December 2017 the Board refused to allow the late filing of the Notice of Appeal of A1 and A2.

12.In its decision the Board found the Director’s decision to have been sent on 3 January 2017 to the Applicants care of DLS, that the 14-day period for them to file their Notice of Appeal had expired on 19 January 2017, that their delay of more than 3 months for their Notice of Appeal to reach the Board on 28 April 2017 was excessive, that even if their explanation of only receiving the Director’s decision until 29 January 2017 were true that their Notice of Appeal would still have been late by some 2 months which it found to be unacceptable, and that there were no relevant matters of fact within the Board’s knowledge that would amount to special circumstances to make it unjust not to allow the late filing of their Notice of Appeal, and accordingly the Board refused their application for late filing of their appeal.

A1 & A2’s Application for Judicial Review of Board’s Decision (HCAL 2469/2018)

13.On 5 November 2018 A1 in person filed a Form 86 initially naming herself as the only applicant under HCAL 2469/2018 for leave to apply for judicial review of the Board’s decision, and it was only much later when she was subsequently granted Legal Aid with legal representation that she amended the Form to include A2 in the application, and for which she put forward one single ground for their intended challenge of the Board’s decision: That the Adjudicator erred in law in refusing the late filing of their Notice of Appeal without taking into account the underlying merits of their appeal as part of the relevant matters of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, as the law then was.

14.By then A1 and A2 were however late with their Form 86, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day for A1 and A2 to file their Form 86 fell on 7 March 2018, they were therefore some 8 months late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the case of A1 and A2, a delay of 8 months must be considered as very substantial and inordinate, for which they did not appear to have provided any explanation in the affirmation, but given the fact that they were then unrepresented and that A2 is a minor, and as the merits or prospect of success of the intended application is an important factor in deciding whether to extend time, I propose to focus on their proposed ground for the intended challenge.

17.As noted above A1 and A2 have put forward one single ground to challenge the Board’s refusal to allow the late filing of their Notice of Appeal without taking into account of the merits of their appeal, of which Ms Kirsteen Lau of Counsel in her Skeleton Submissions argues that the Board ought to have followed the 3-stage approach in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016, in that after identifying and assessing the seriousness of the failure to comply with the rules and considering why the failure occurred, it was incumbent upon the Board to evaluate all the circumstances of the case so as to deal justly with the application, but which she submits that the Adjudicator failed to complete this third-stage of the approach by failing to consider all the circumstances of the case, namely the merits of the appeal, which is therefore a clear error of law.

18.This approach has in fact been approved by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019 and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, and in the latter Lisa Wong J in giving judgement of the Court elaborated on the importance of taking such a matter into account in the decision as follows:

“23. … as the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, on which the Board had directed itself at [16] of the Board’s Decision, even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019. [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

19.While it is true that in the present case, those decisions were not then available to the Adjudicator when he refused the late filing of the Notice of Appeal of A1 and A2, the fact is that the Applicants did in their Notice of Appeal set out their grounds of appeal against the Director’s decision which were clearly part of the relevant matters of fact within the Board’s knowledge that would go into the merits of the appeal which the Adjudicator was required to take account at the relevant time as the applicable legislation concerning late appeals then set out in Section 37ZT(2)(b) of the Ordinance, but which the Adjudicator appeared to have failed to do so at the time.

20.In the premises, I am of the view that the intended application of A1 and A2 for judicial review of the Board’s decision in refusing to allow the late filing of their Notice of Appeal is reasonably arguable, and accordingly I extend time to their application and grant leave for them to do so on the basis of the said ground as stated, and direct that they shall within 14 days of this decision file and issue the originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

21.I shall next consider the application of A3 and A4, starting first with the relevant factual background of their claims as follows.

Non-refoulement Claims of A3

22.As noted above, A1 on 27 February 2018 gave birth to her second daughter, the 3^rd Applicant (“A3”) from her marriage with her Nigerian husband, and subsequently also raised a non-refoulement claim for her on the same basis as above plus also fear that both she and A3 will be discriminated by the Ugandan society due to her marriage to a Nigerian husband and that A3 as a child born outside the country from such different nationality and ethnicity, and for which A1 completed a NCF on 9 April 2019 as well as attended a screening interview for A3 with the same legal representation from DLS.

23.By a Notice of Decision dated 29 May 2019 the Director rejected the claim of A3 on all the applicable grounds after taking into account of all her circumstances and those of her mother and upon assessing that the level of risk of harm from her grandfather or Mosa upon her return to Uganda as low due to the absence of any past ill-treatment by them or any evidence of any intention of them ever to harm or kill her, that in any event that it was a private personal dispute between them and her mother without any official involvement that state or police protection would be available to A3 if so required, and that reliable and relevant COI show that reasonable internal relocation alternatives are available in Uganda with a large population of more than 40 million people spread across a vast territory of some 241,000 square kilometers that it would not be unduly harsh for her to move with her mother as an able-bodied adult with earning capacity and experience to other part of the country away from her mother’s home district in large cities such as Gulu or Kabale where it would be difficult if not impossible for her grandfather or Mosa to locate her.

24.On 11 June 2019 A1 on behalf of A3 lodged an appeal to the Board against the Director’s decision, and for which they attended an oral hearing on 30 October 2019 before the Board during which A1 for the first time gave oral evidence of the claim before the same Adjudicator who had earlier refused the late filing of the appeal of her and her eldest daughter. On 17 September 2020 the Board dismissed A3’s appeal and also confirmed the Director’s decision.

25.In its decision the Board did not dispute A1’s account of events in respect of her father’s attempts to force her to marry Mosa and her subsequent abduction and assaults by unknown men as well as her detention and rape by Mosa, but did not accept any suggestion that she fled Uganda for Hong Kong out of fear of being harmed or killed by them over her unwillingness to marry Mosa as nowhere in her case did she make any assertion of being harmed or threatened with her life by either her father or Mosa at any stage, and hence any claimed fear of her daughter A3 being harmed or killed by either of them or of being discriminated against due to her father being a Nigerian is just based on pure speculation without any evidence in support, and that relevant COI show that relocation to another area within Uganda is a viable proposition for A1 to alleviate any genuine fears that she may have for herself and her children that A3’s claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

Non-refoulement Claim of A4

26.Meanwhile on 5 October 2019 A1 gave birth to her 3^rd daughter, the 4^th Applicant (“A4”), and subsequently also raised a non-refoulement claim for her on the same bases as A3’s, and for which she also completed a NCF on 17 June 2020 and attended a screening interview before an immigration officer with the same legal representation from DLS.

27.By a Notice of Decision dated 19 August 2020 the Director also rejected A4’s claim on all the applicable grounds upon similar findings of only a small future risk of harm to her upon her return to Uganda due to the low intensity and frequency of past ill-treatment to her mother A1, and that in any event state/police protection would be available to her if needed as well as reasonable internal relocation for her to move with her mother to other part of the country away from her mother’s home district without any risk of being located by her grandfather or Mosa that her claim for non-refoulement protection also failed on all applicable grounds.

28.On 1 September 2020 A1 lodged an appeal for A4 to the Board against the Director’s decision, and on this occasion the Board with the same Adjudicator did not hold any oral hearing for the appeal and just dealt with it on paper, and on 8 October 2020 it dismissed the appeal based on essentially the same findings and reasons as in its earlier decision regarding A3’s appeal.

29.In this decision the Board explained that it found it unnecessary to hold an oral hearing as no further issues arose that needed clarification since any issue that did arise had already been dealt with in the earlier A3’s appeal by the Board and which it adopted in its entirety for the purpose of this appeal ([23] of the decision).

30.The Board then went on to adopt the same findings on credibility as in its earlier decision on A3’s appeal (see [36] – [39] of decision) that it cannot dismiss as untrue of A1’s assertions of being forced by her father to marry Mosa in settlement of his debts, but similarly rejected any suggestion that A1 fled Uganda for Hong Kong out of fear of being harmed or killed due to her unwillingness to marry Mosa in the absence of any assertion of her ever being harmed or threatened by either of them, that any fear of A4 being discriminated against due to her father being a Nigerian was based on pure speculation, and that relevant COI similarly show that relocation to another area within Uganda is a viable proposition for A1 to alleviate any genuine fears she may have for herself and her children, and concluded that A4’s claim for non-refoulement protection also failed on all applicable grounds.

The Application of A3 & A4 for Judicial Review of Board’s Decisions (HCAL 867/2021)

31.On 11 June 2021 A1 as their guardian and next friend filed a Form 86 for A3 and A4 under HCAL 867/2021 for leave to apply for judicial review of the respective decisions of the Board, and upon obtaining Legal Aid she put forward the following amended grounds for their intended challenge:

(1)  That the Adjudicator erred in law in misapplying/failing to apply the correct test for assessment of their non-refoulement risks and failing to take into account relevant considerations including those specific to them as minor children;

(2)  Procedural unfairness in failing to discharge the duty of joint endeavour and/or to hold an oral hearing for A4’s appeal and/or failing to give reasons for its dismissal of their appeals;

(3)  Irrationality/Wednesbury unreasonableness in its decisions in failing to properly balance relevant considerations and/or with flaws in logic and reasoning.

32.However, their application was also filed outside the required 3-month period, as the last day for them to do so fell on 17 December 2020 and 8 January 2021 respectively for A3 and A4, and hence they were at least some 5 months late with their application, which must be considered as also very substantial, for which Ms Lau, also representing them on Legal Aid, explained that when A1 tried to file the Form 86 for them, she was advised by the High Court Registry that A3 and A4 would not be allowed to do so without legal representation as required by Order 80 Rule 2 of the Rules of the High Court, and so she then applied for Legal Aid for them but which had taken months for her application to be processed, and by the time that A3 and A4 were eventually given the same legal representation, they were already way out of time with their application.

33.Ms Lau submits that this case also has merits, and is one that concerns the life and limb of minor children who face a real risk of ill-treatment if wrongly deported to Uganda, and hence there is good reason to extend time.

34.As noted above that the prospect of success of the intended application is an important factor in deciding whether to extend time, I propose to focus on their proposed grounds for their intended challenge of the Board’s decisions to dismiss their appeals, which can all be considered together given the similar nature of the complaints.

Grounds: Error in law in failing to apply the correct test for assessing the Applicants’ non-refoulement claims and/or that such assessment was irrational or unreasonable and/or procedural unfairness in failing to consider separately those risks specific to them as minor children

35.As noted above, the Board in assessing the children (A3 and A4)’s claims did not dispute as untrue the assertions of their mother (A1) regarding the threats to force her to marry Mosa after hearing her in evidence at A3’s appeal, as it so stated in its findings on credibility in that decision:

“35. I cannot dismiss as being untrue the assertions of the mother regarding the attempts of her father to have her marry Mosa, neither do I disbelieve the mother’s account of being beaten up by three men in 2013 in order to ‘scare’ her into marrying Mosa.

36. However, I do not accept any suggestion by the mother that she fled her country and came to Hong Kong out of fear of harm of being killed by her father or Mosa due to her unwillingness to marry Mosa. Indeed she did not. She left Uganda out of a fear of being pressured into marrying Mosa and nothing else.

37. Nowhere in the mother’s case does she make any assertion of being harmed or threatened with her life by either her father or Mosa at any stage.

38. With regard to the mother’s fear of her daughters, and in particular the Claimant being discriminated against due to her father being a Nigerian, this amounts to an assertion based upon pure speculation with no evidence whatsoever in support.”

36.The Board proceeded to consider the availability of internal relocation as an alternative to A1 to move with A3 to other part of the country upon their return to Uganda:

“39. In order to alleviate any genuine fears that the mother may harbor toward returning to her district in Uganda and being targeted by either her father or Mosa, despite the assertions of the mother to the contrary, relocation to another area within Uganda would appear to be a viable alternative open to the mother.

40. According to the US Central Intelligence Agency – The World Factbook, Uganda has an estimated population of some 40.9 million people and the country is spread over 241, 038 square kilometers.

41. In the circumstances, I am satisfied that relocation to another area within Uganda is a perfectly viable proposition for the mother to alleviate any genuine fears that she may have for herself and her children.”

37.The Board then concluded that A3 had failed to establish any substantial grounds for believing that she would be subjected to any of the proscribed harms under the applicable grounds, including that of persecution risk of being discriminated against due to her father being Nigerian, as it so stated in its conclusion:

“50. Whilst I am satisfied that the Claimant is of Ugandan nationality presently outside Uganda, in the present case the mother’s fears regarding the Claimant being discriminated against due her father being Nigerian are purely speculative and lacking in any evidence. Furthermore, I do not find that any fears that the mother has asserted to with regard to the Claimant to be well-founded in view of the fact that internal relocation within Uganda as discussed above is available.”

38.Ms Lau submits that since the Adjudicator fully accepted the entirety of the factual basis of the account of their mother (A1) of being forced by her father to marry Mosa and that she was beaten up by three men in order to scare her into marrying the latter, while Mosa thereafter kept her in his house and raped her, but in making the findings in the same decision that the mother’s evidence contained no assertion of being harmed or being threatened with her life by either her father or Mosa at any stage, and that she has not suffered any severe mental or physical pain or suffering at any stage in the past, Ms Lau submits that the Adjudicator erred in law in failing to recognize that both rape and forced marriage amount to serious harm of sufficient severity to constitute torture/cruel, inhuman and degrading treatment or punishment and/or persecution within the meaning of the Refugee Convention, and/or that such assessment is irrational or unreasonable.

39.Ms Lau further submits that the failure of the Adjudicator to recognize that the mother had suffered serious harm in the past impacted the assessment of future risk as past experiences of serious harm should ordinarily be treated as indicative of future risk, and in drawing upon these erroneous findings on the severity of past harm, the Adjudicator then went on to wrongly distinguish between the use of force/violence to subjugate a person into a forced marriage and a claim for protection on this basis, which is at best confusing and further demonstrating the erroneous application of the relevant threshold of serious harm.

40.Ms Lau submits that this error in law by the Adjudicator rendered the rest of decision-making process and the decisions relating to the children flawed, as having wrongfully failed to accept that rape and/or forced marriage constituted serious harm to the mother, then there was little chance of the children’s appeal succeeding, as such error also necessarily impacted the soundness of the internal relocation assessment, as well as the failure to properly or adequately consider their risk of pervasive societal discrimination due to their parents’ mixed nationality/ethnicity which was simply brushed aside as speculative and lacking in evidence.

41.Ms Lau submits that the personal and specific consideration of the children, their particular vulnerabilities and how the claimed risk would affect them was never considered at all, as both decisions were very much just focused on the case of their mother except for a brief consideration of the claim that the children would be discriminated as being speculative, and for which the Adjudicator also failed to give any or sufficient reasons for the decision, while there was simply no separate or adequate consideration or assessment of internal relocation for the children, such as whether they would be able to access education, or whether internal relocation would indeed be a viable option so as to satisfy the high standards of fairness required as they relate to children.

42.Taking the last point first, for assessing children’s non-refoulement claims, the proper approach has been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & Others [2021] HKCA 53, and for present purpose it is suffice to note that, firstly, their claims even if based on the same set of primary facts are separate from those advanced by their parents, and need to be considered as such having regard to the personal circumstances of the children, and that ill-treatment which does not reach the level constituting persecution in the case of an adult may do so in the case of a child (Fabio Arlyn Timogan [34]; Re Jasvir Singh [30]).

43.Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court is required to examine, in the context of the requisite high standards of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances, and in so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not advanced or properly advanced before the Board due to the absence of legal representation (Fabio Arlyn Timogan [47]-[54]; Re Jasvir Singh [31]).

44.In the present case, the claims of A3 and A4, as stated in their NCF completed with legal representation, were based not just on the facts and risks submitted in the claim of their mother but also of their own due to their parents’ mixed nationality/ethnicity, but of which as noted above that the Adjudicator appeared to have just brushed aside as speculative and lacking evidence without any proper or adequate consideration or even any reference to relevant COI, or for that matter to give any or sufficient reasons for rejecting their claims.

45.The same can be said about the internal relocation assessment of the children when the Adjudicator just focused on it being a viable option to the mother to relocate to another area within Uganda without any consideration of the fact that all the children were born outside the country in Hong Kong, and hence potential relevant issues such as language and education have never been considered, and also for that matter whether it is indeed not unduly harsh for the mother to move with 3 small children then merely aged 4, 2 and 1 to other area of Uganda where she might not have any connection and despite her claim of lack of support, financial or otherwise for her to do so all by herself.

46.As for the complaint that the Adjudicator also failed to apply the correct test for the assessment of the children’s non-refoulement risk including the relevant threshold of harm after having fully accepted the entirety of the factual basis of the mother’s account of threats and ill-treatments from her father and Mosa, given the fact that the mother’s own non-refoulement claim has never been formally assessed and determined by the Board after having refused the late filing of her appeal, and that as noted above this Court having now granted leave for her to apply for judicial review of that decision of the Board, for obvious reason the less the better for the Court to comment on her such claim, suffice it for present purpose to note that it seems to me inconsistent and/or contradictory for the Adjudicator to having accepted the mother’s assertions of threats and ill-treatments by her father and Mosa then found that her evidence contained no “assertion of being harmed or being threatened with her life by either her father or Mosa at any stage”, and hence it is in my view reasonably arguable that in doing so the Adjudicator erred in applying the correct test for the assessment of the non-refoulement risk.

47.In the premises, and for the reasons given, I am of the view that all three grounds of A3 and A4 are reasonably arguable for their intended challenge of the Board’s decisions, and that there are merits in their intended application for time to be so extended.

48.Accordingly, I extend time to their application, and grant leave for them to apply for judicial review of the Board’s decisions based on the grounds stated above, and direct that they shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

49.Lastly, I also make an order that the costs of the Applicants in both applications be in the cause and to be taxed on Legal Aid Regulations.

Dated the 4^th day of April 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1