I and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3635/2019

[2023] HKCFI 1048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3635 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

1.  There be an Order in terms of the applicants summons dated 7 January 2022;

2.  Leave for the applicants to apply for judicial review of the Board’s Decision be refused and their application be dismissed;

3.  The anonymity Order dated 2 February 2021 be lifted forthwith;

4.  Costs of this application and the hearing be in the cause of the proceedings; and

5.  The applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant (son) and the 3^rd applicant (daughter), collectively called (“the children”). This is their application for leave to apply for judicial review of the Decision dated 6 September 2019 made by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), by which the Board dismissed their appeal against the Director’s Decision dated 19 October 2018 (the “Director’s Decision”), by which the Director of Immigration Department (“the Director”) rejected their claims for non-refoulement protection.

2.This is the applicants’ joint application[1]. The 1^st applicant has given evidence on behalf of herself and the children. In other words, the factual basis of the children in support of their applications relies upon the 1^st applicant’s factual evidence.

3.The applicants were represented by duty lawyer before the Board on 27 June 2019. For this hearing, Mr. Benjamin Chan, counsel represented the applicants on the instructions of the same duty lawyer as assigned by the Director of Legal Aid.

The applicants

4.The applicants are nationals of Sri Lanka.  The 1^st applicant came to Hong Kong on 18 December 2004 on the strength of her passport. She was permitted to remain as a visitor until 17 January 2005. She overstayed and was arrested by police on 7 January 2007. She was referred to the Immigration Department.

5.The 1^st applicant claimed that if refouled, she would be harmed or killed by Nanyakkara Joseph Roshan Perera (“Joseph”), her husband, who is a gangster and has a direct family connection with a government official in Sri Lanka.

6.Briefly stated, according to the 1^st applicant, when she was 16 years of age, she started dating Joseph. Her family disapproved. After dating for about 1 month, one day she was on her way home from school, Joseph took her to a friend’s place where she was forced to sign a document, which turned out to be a marriage certificate. She said that she signed it without knowing what it was. Joseph said that since she had signed the marriage certificate, she was his wife. She was not allowed to return home. He then forced her to have sex with him. They then moved to a flat in Colombo. Joseph kept her in the flat. When they had sex, the 1^st applicant said that it was not consensual. He threatened her that if she contacted or returned to her parents, they would be hurt or died. She therefore did not contact or return to her parents.

7.Joseph controlled her by keeping her in the flat. He made the shopping and gave her no money. He also became abusive. He beat her and threatened her. She gave birth to her eldest son on 9 September 2000 in hospital. During the time in hospital, Joseph stayed constantly with her.

8.Joseph took drug and brought people home. He brought several women to the house and behaved in a lewd manner. She complained. He hit her with fist and feet and she sustained severe bruising. On one occasion, he hit her with a vase and the skin on her forehead split. He took her to a doctor. She heard him boast to his friends about his political connections.

9.On one occasion, Joseph brought in his friend to take drugs. When Joseph passed out, his friend dragged her into a room and raped her. She told Joseph the next morning. He did not believe her and beat her hard. She decided to run away. She took money from Joseph and brought her son with her to live in her parents’ home. Her parents discovered that the marriage certificate had been registered. They reported the matter to police. Police said that since the marriage had been registered, there was nothing they could do about it because she was already Joseph’s wife.

10.It was discovered that Joseph was a wanted man for rape and robberies. The police were unable to track him down. The applicant’s mother told her that Joseph was a member of People’s Alliance Party. Joseph had been looking for her and his son. He had gone to the parents’ house and threatened her parents with a pistol. On that occasion, she was not home. She and her son then moved to live in her uncle’s home in Chilaw for 2 months. Her uncle sent her to Hong Kong.

11.She was unable to find a job in Hong Kong. Her son in Sri Lanka was harassed by Joseph on a regular basis. Joseph told her parents that when she returned to Sri Lanka, she would be forced to live with him and he would never consent to divorce.

12.Her mother had made enquiry about Joseph’s family connections. His family had connections to a man called Felix Perera (“Perera”), who is a member of the Sri Lankan Parliament for the current ruling party. Joseph’s mother and grandmother apparently worked in that minister’s house. Joseph had been arrested by police, but he was released without investigation in many cases.

13.Following her arrival in Hong Kong, the applicant had pursued a relationship with a Sri Lankan Tamil asylum seeker with whom she had given birth to the 2^nd and the 3^rd applicants. In early 2018, Joseph went to her parents’ house and assaulted her father after he came to know of her second marriage.  The children’s non-refoulment claims were lodged on 23 November 2016 and 15 June 2018 respectively.

The Director’s Decision

14.The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground; and thus her claim on thus ground would not be assessed;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

15.By Notice of Decision dated 19 October 2018 (“the Director’s Decision”), the Director refused the applicants’ claims on all applicable grounds. The Director had considered the legal submissions made by the applicants’ duty lawyer on the definition of torture, acquiescence, foreseeable situations, relocation, continued extra-judicial violence, communal violence, lack of state protection and best interest for the child [children].[2] The Director refused their claims for the reasons that the level of risk of harm from Joseph upon the family’s return is assessed to be low [15], having regard to the hearsay information, bare assertions and speculation and risk assessment [16] – [20]; that state protection would be available to the family [22] – [29]; that relocation was a viable option [30] – [33][3]. The children’s interest had also been considered by the Director, whose conclusion is that the two children’s cases do not warrant non-refoulment protection on the ground of torture risk [45] – [48]. The immigration officer had also considered the documents submitted by the duty lawyer on behalf of the applicants [49] – [52].

16.It can be seen that the Director had made a rather comprehensive assessment of the applicants’ joint application.

The Board’s Decision

17.The applicants appealed to the Board against the Director’s Decision and attended a hearing on 27 June 2019 before the adjudicator. The applicants and the Director were respectively legally represented before the Board.

18.In the Board’s Decision, the adjudicator said,

“Having carefully considered all the documentary evidence and the answers during the oral hearing session, I find that the evidence of the P1 consists of a lot of hearsay evidence and a lot of speculation and bare assertions, which made her evidence unreliable.”[4]

19.Insofar as they are relevant for the present discussion, the Board found the following facts:

(1)  there are hearsay evidence and bare assertions and speculations [21(I)];

(2)  in relation to the behaviour of Joseph towards the 1^st applicant, the Board came to the following conclusions:

i.     No doubt, she had been ill-treated by Joseph but the injuries she suffered did not attain a minimum level of severity.

ii.    The fact that she had stayed with Joseph for five years is inconsistent with a victim of domestic violence who genuinely feared of being physically harmed by Joseph.

iii.   From the evidence, Joseph did not evince an intention to cause the 1^st applicant grievous bodily harm. [21(II)]

(3)  the applicant did not seek protection immediately after her arrival in Hong Kong and only did so after 2 years, which the Board said that her conduct is inconsistent with someone who really wants to come to Hong Kong to seek protection.

(4)  the children’s interest:

i.     The best interest of them is to be taken care of by their mother.

ii.    On the language barrier, given their tender ages, it is easy for them to adopt to the environment in Sri Lanka.

iii.   Any child born in Hong Kong whose parents did not have a right of abode could not stay because of the fact that they were being born in Hong Kong (See Section 2(e) of Schedule I of Permanent Resident and Right of Abode). [21(IV)]

(5)  the 1^st applicant’s relationship with a Sri Lankin Tamil (the children’s father):

i.     His non-refoulement claim is independent of and not connected to the 1^st applicant’s claim.

ii.    If the 1^st applicant and the children were to return to Sri Lanka, her partner’s name would not be mentioned because her partner has an independent claim and is not related to the 1^st applicant’s present claim. [21(V)]

(6)  Conclusion:

“Having carefully analysed all the above facts, I find that P1 to P3 have not made out a case where they needed non-refoulement protection and that there is no problem upon their return to Sri Lanka.”

20.The Board had also considered the Country of Origin Information (“COI”) on reforms, rape, inter-faith marriage, protection of women and children in Sri Lanka. There are COI, which support her case and COI, which do not support her case [25] & [26]. It concluded that state protection is available to the applicants upon their return to Sri Lanka [27].

21.The Board then considered the 1st applicant’s claim in relation to each of the applicable grounds as set out in paragraph 14, supra., giving reasons for its decisions rejecting each of the applicants’ claims [28] – [46].

22.Finally, the Board considered internal relocation and concluded that there should be no problem for the 1^st applicant and her children to return to Sri Lanka [47], nominating Marara and Kandy as the cities which the 1^st applicant may opt for [49] & [50]. It had given the reasons in support of the viability of internal relocation for the 1^st applicant [52].

Application for leave to apply for judicial review

23.In the applicants’ Amended Form 86 dated 7 January 2022 for leave to apply for judicial review of the Board’s Decision, the applicants set out 8 grounds in support of their application:

(1)  The Board’s approach to hearsay evidence was procedurally unfair or Wednesbury unreasonable.

(2)  The Board erred in law by finding that the ill-treatment suffered by the 1^st applicant did not meet a minimum level of severity under Article 3 of the Bill of Rights (BOR 3).

(3)  The Board’s adverse credibility finding regarding the five-year stay with Joseph was Wednesbury unreasonable and procedurally unfair.

(4)  The Board’s adverse credibility findings regarding the 1^st applicant’s immigration history and delay in seeking protection was not in line with international-recognized principle of credibility assessment.

(5)  With regard to persecution, the Board failed to consider whether the 1^st applicant was a member of a particular social group in Sri Lanka.

(6)  It was irrational of the Board not to consider the lack of criminal sanction against martial rape in the assessment of state protection.

(7)  The Board failed to conduct an adequate and reasonable assessment on internal relocation.

(8)  The Board failed to consider adequately the 2^nd applicant and 3^rd applicants’ claims separately from that of the 1^st applicant.

DISCUSSION

General legal principles

24.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

26.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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.”

Ground (1) The Board’s approach to hearsay evidence was procedurally unfair or Wednesbury unreasonable.

27.Counsel for the applicants submitted that the Board’s treatment of the hearsay evidence in relation to Joseph’s political connections and powerful friends was unfair or unreasonable in that the Board had not taken into account the circumstances under section 49(1) of the Evidence Ordinance, Cap.8. However, there is no specific reference to what circumstances that the Board had not taken into account. The Court of Appeal in Re:             Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

28.The applicants said that the Board should draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimants: ST v Betty Kwan [2014] 4 HKLRD 277 [39]. As the applicants were legally represented, this issue should have been dealt with by their duty lawyer in the course of the hearing before the Board. There is no particular of what issue that the Board had not dealt with for clarification. This complaint therefore fails.

29.The applicants said the Board should have set out the basis for rejecting the hearsay evidence that Joseph had political connection such that he was released by police without investigation. They further submitted that the Board had used the words “hearsay”, “speculation” and “bare assertions” loosely without distinction, saying that it is inherently contradictory as evidence cannot be both hearsay and speculation. Hearsay evidence refers to the evidence which is not directly from the witness, in this case, the 1^st applicant, but from someone who told the 1^st applicant, to whom counsel and the court cannot put questions for verification at the hearing. If the 1^st applicant believed in information from someone else and made wild guess of the facts, this is her speculation. Her evidence is therefore both hearsay and speculative.

30.Counsel submitted that it is Wednesbury unreasonable for the Board to find the 1^st applicant’s evidence “unreliable” when it accepted the core parts of her claim. It is quite clear that the Board did not reject her evidence outright. As can be seen from paragraph 19(2), supra, the Board accepted that she had been ill-treated by Joseph. The Board is obviously referring to the evidence in support of her claim that she has genuine fear that Joseph will harm or kill her if she and her children return to Sri Lanka, which the Board found to be unreliable.

31.This ground fails.

Ground (2) The Board erred in law by finding that the ill-treatment suffered by the 1st applicant did not meet a minimum level of severity under Article 3 of the Bill of Rights (BOR 3).

32.Counsel submitted that the Board, in finding that the 1^st applicant’s ill-treatment by Joseph did not attain a minimum level of severity for BOR 3 risk, overlooked the years of marital rape by Joseph and the rape by Joseph’s friend. By leaving out the rapes altogether, the Board failed to adequately assess whether the ill-treatment attain the required minimum level severity. Counsel further referred to cases in other jurisdictions and the UNHCR which recognizes that rape and domestic violence are acts that inflict severe pain and suffering, both mental and physical, fulfilling the requirement of BOR 3 risk. Counsel drew analogy of rape and torture with domestic law in Hong Kong punishable by imprisonment for life.

33.On the issue of the minimum level of severity for BOR 3 risk, the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:

“171. The outcome of the case therefore depends on whether the appellant can bring himself within the terms of BOR Art 3 on the facts.

172. For him to do so successfully, he must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment. It is clear that a very high threshold must be surmounted to establish each of those requirements.

173. …to meet the “minimum level of severity”, it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment.

174. … the deportee must show “substantial grounds ... for believing” or “strong grounds for believing” that if deported (or extradited) he faces a “real risk” of being subjected to torture or CIDTP.’

176. …the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.

184. … … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. … …”

34.Therefore, the 1^st applicant must show substantial grounds for believing or strong grounds for believing that if she returns to Sri Lanka, she will face a real risk of being subjected to BOR 3 risk [§174]. She was legally represented at the hearing. Her duty lawyer would have no difficulty in understanding the requirements for the proof. There is no medical evidence on her physical or mental suffering to meet the minimum level of severity at the hearing. The Board made the finding of fact according to the evidence. Domestic law on rape only shows the criminality of the offence. But this case concerns the severity of the 1^st applicant’s suffering, not the criminality of rape.

35.This ground fails.

Ground (3) The Board’s adverse credibility finding regarding the five-year stay with Joseph was Wednesbury unreasonable and procedurally unfair.

36.Counsel submitted that the Board’s view that staying with Joseph for 5 years was inconsistent with the behaviour of a victim of domestic violence was irrational and unreasonable in the Wednesbury sense. Counsel further commented that the Board failed to refer to COI in the hearing bundle and it failed to make further enquiry with the 1^st applicant at the hearing and it drew adverse inference based on its common sense.

37.It seems that the Board made the finding based upon the facts that the 1^st applicant was able to leave Joseph after the incident of having been raped by Joseph’s friend and assaulted by Joseph after she had told him about the incident. If she was able to leave Joseph after the incident, it seems contrary to common sense for her to say that she was unable to leave Joseph over the past 5 years, despite being subjected to non-consensual sex and domestic violence by Joseph. The 1^st applicant was represented by duty lawyer, who should refer the Board to the relevant COI. If her duty lawyer did not refer to the relevant COI, the 1^st applicant cannot now complain. If her duty lawyer had referred to the relevant COI and the Board had not taken it on board in its assessment of the evidence, this was not brought to this Court’s attention. The Court of Appeal’s case on the use of common sense in assessing credibility or plausibility of the 1^st applicant’s claim highlights the important issue of adopting commons sense in appropriate circumstances. The Court of Appeal in ST v Betty Kwan and The Secretary for Security and The Director of Immigration [2014] 4 HKLRD 277 held:

“43. … … In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

38.The Board was quite entitled to apply common sense in respect of the above circumstances. There is nothing Wednesbury unreasonable about the Board’s approach. This ground fails.

Ground (4) The Board’s adverse credibility findings regarding the 1st applicant’s immigration history and delay in seeking protection was not in line with international-recognized principle of credibility assessment.

39.Counsel submitted that the Board had failed to take into consideration that the applicant might be afraid of the Hong Kong authority and did not make the immediate request for protection; that this approach is not in line with internationally recognized principles of credibility assessment in that other jurisdictions had taken this factor as more convincing factor in support of the applicant’s claim; that this factor to be taken against the applicant’s credibility “should be restricted to the most obvious cases if the risk of injustice to applicants is to be avoided.”

40.Section 37ZD of the Ordinance provides, inter alia:

(1)  In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(b) a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);

(2)  … …

(3)  This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.

41.As the applicants were legally represented at the hearing before the Board, those extenuating circumstances in favour of the 1^st applicant as submitted above should have been brought to the Board’s attention. From the cases cited by counsel, it seems clear that how and to what extent this factor should be assessed and weighed is a matter for the Board’s discretion, taking into consideration of the circumstances of the cases. I accept that the statutory provisions above are not the starting point for the Board’s assessment of the 1^st applicant’s credibility, which must be determined by the evidence before the Board. The Board is entitled to take this factor into consideration where there is no evidence in support of the 1^st applicant’s allegations or her evidence is in doubt, such as her evidence that she was in fear to such extent that she was unable to leave Joseph for 5 years during which she was subjected to marital rape and violence by Joseph and her hearsay evidence discussed above.

42.There is nothing amiss in the Board’s assessment of the 1^st applicant’s evidence on credibility by reference to this factor. This ground fails.

Ground 5 With regard to persecution, the Board failed to consider whether the 1st applicant was a member of a particular social group in Sri Lanka.

43.This ground can be disposed of briefly. To qualify as one particular social group (“PSG”) under Persecution risk, there must be either the government or other pressure group or groups, which will persecute the PSG. The 1^st applicant is a victim of domestic violence. There is simply no evidence before the Board that the government of any pressure group who will persecute the victims of domestic violence. On the contrary, the law in Sri Lanka protects them. Although, as according to counsel’s submissions, marital non-consensual sex is not an offence in Sri Lanka, nevertheless acts of assault or violence should be protected by the law there. I have raised this issue with counsel at the hearing, counsel did not deny that Sri Lanka law provided protection against assault or violence. This ground fails.

Ground (6) It was irrational of the Board not to consider the lack of criminal sanction against marital rape in the assessment of state protection.

44.Counsel submitted that this is important as the Board found that state protection would be available to the 1^st applicant.

45.The Board referred to the COI touching on rape and state protection in paragraph 25 of the Board’s Decision: “According to P1, rape is a common problem in Sri Lanka by agents of the authorities and that the police is corrupt…. 27. This state protection is available to P1 to P3 upon their return to Sri Lanka.”

46.The above discussion must be in response to submissions raised by duty lawyer acting for the applicants. This issue is different from the issue of marital rape. If the issue of marital rape was not brought to the Board’s attention for consideration or argument, the 1^st applicant is not allowed to contend that the Board erred in not taking it into account unless the Board has a positive duty to do so. The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, 16 August 2018, §14 (Lam, VP as he then was) held:

“14. (5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.”

47.It seems that the issue of marital rape was not argued before the Board. I have raised this issue with counsel before me and he was unable to solve the following issues, which should have been canvassed before the Board if the issue was argued by counsel of respective parties. Accepting that marital rape is not an offence under the law in Sri Lanka, the 1^st applicant should also be protected if she is unwilling to live with Joseph and Joseph insists. Also, according to the 1^st applicant, she was under-aged when she signed the marriage certificate and was misled into signing it, which may render the marriage certificate void or voidable notwithstanding it had been registered. In such circumstances, Joseph’s forced sex with the 1^st applicant will be a criminal offence.

48.Ground (6) fails.

Ground (7) The Board failed to conduct an adequate and reasonable assessment on internal relocation.

49.The applicants complain that the Board did not consult them about the proposed cities for relocation and the Board did not conduct an adequate and reasonable analysis based on the relevant personal circumstances of the 1^st applicant and the available COI, citing a UK case and the UNHCR Guidelines on International Protection No.4. The circumstances in Sri Lanka are harsh for them and the 1^st applicant’s partner is associated with the LTTE, which may have the effects of discrimination on the applicants. Counsel submitted that the Board had failed to sufficiently consider and reasonably analyze all the material evidence and COI in its assessment and determination of internal relocation.

50.The Court of Appeal in Tk v Michael C Jenkins case held that the burden of proof on the issue of internal relocation is on the 1^st applicant:

“35. Fifthly, who bears the burden of proof regarding internal relocation? In my view, the question of whether there is an internal relocation alternative is part and parcel of whether or not the claimant is a Convention refugee or, in our present context, a genuine CAT claimant, in relation to which the claimant, as explained, bears the burden of proof. It is for the claimant to make out his case. In relation to the internal relocation issue, he accordingly bears the burden of proof : Rasaratnam, supra; Thirunavukkarasu, supra; R v Secretary of State for the Home Department, ex parte Salim [2000] Imm AR 6; Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449; Aziz v Secretary of State for the Home Department [2003] EWCA Civ 118 (23 January 2003); GH Iraq v Secretary of State for the Home Department [2004] Imm AR 707; MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852 (5 July 2007); Macdonald & Toal, Immigration Law and Practice in the United Kingdom (8^th ed), vol 1, para 12.47.”

51.Where the applicants were legally represented, the burden on the Board to give assistance to the applicants for the preparation of their cases, not least for the legal arguments will be reduced. The Court of Appeal of the above case held at paragraph 52:

“… … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. … In my view, the bottom line of the high standards of fairness required of the screening process is fairness. And fairness, in the present case, did not require the adjudicator or the Director to find out any such information for the represented applicant, at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated.”

52.Where the applicants were legally represented, the Board should not act as their legal advisor to perfect their cases before it. All those issues which counsel submitted that the Board should take into consideration or make reference to the COI are the issues for their legal representative to prepare the case for argument. There is no evidence to show that those issues had been put forth to the Board by the applicants’ duty lawyer for consideration. If the issues had been submitted by their duty lawyer to the Board and the Board had failed to take them into consideration, it is for the applicants to show to this Court the submissions. However, there is no such submission. Since it is the burden of the applicants to prove internal relocation and the applicants had failed to do so, the Board was entitled to identify the suggested cities for their internal relocation without consulting them. It is not an order that they must relocate to those cities. It is only a suggestion for them. Up till now, the applicants have not told this Court why those proposed cities are not suitable for their relocation.

53.This ground fails too.

Ground (8) The Board failed to consider adequately the 2^nd and 3^rd applicants, claims separately from the 1^st applicant

This issue should not be brought in support of the application as the children were legally represented before the Board. The Court of Appeal in Mujiati Lestari & Hossain Arrifky Rahmatullah (a minor, by his next friend and mother, Mujiati Lestari) v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office and Director of Immigration [2022] HKCA 1471, Hon Au and G Lam JJA, 10 October 2022 held:

“18. … …, first, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.

19. Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. 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 been advanced or properly advanced before the Board due to the absence of legal representation.^[5](emphasis added)

54.The Court of Appeal in Fabio Arlyn Timogan & Others v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, Hon Lam VP (as he then was), Barma and Au JJA, 27 November 2020, had brought this issue to the Duty Lawyer Scheme:

“54. We would send a copy of this judgment to the administrator of the Duty Lawyer Scheme to remind those acting for children claimants to give careful consideration to any potential child-specific risk when they present non-refoulement claims on their behalf.”

55.There is no reason to assume that the duty lawyer representing the applicants before the Board were ignorant of the above Court of Appeal judgment.

56.In fact, both the Director and the Board had considered the minor-specific factors separately from their mother’s, the 1^st applicant. See [45] –[48] of the Director’s Decision and paragraph 19(4), supra.

57.This ground fails.

CONCLUSION

58.I find no valid reason from the applicants to challenge the Board’s Decision to satisfy the test as laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 30 November 2007

“15. … … The test which should be applied is the arguability test. … A reasonably arguable case is one which enjoys realistic prospects of success. … It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

59.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

60.The applicants fail to show that any one of them or cumulatively has any realistic prospect of success in their proposed judicial review.

DISPOSITION

61.I shall make an Order in terms as follows:

(1)  there be an Order in terms of the applicants summons dated 7 January 2022;

(2)  leave for the applicants to apply for judicial review of the Board’s Decision be refused and their application be dismissed;

(3)  the anonymity Order dated 2 February 2021 be lifted forthwith;

(4)  costs of this application and the hearing be in the cause of the proceedings; and

(5)  the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Dated the 20^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