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

HCAL 946/2019 and HCAL 1007/2019

(Consolidated)

[2024] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 946 OF 2019

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1007 OF 2019

(Consolidated pursuant to the Order of
Deputy High Court Judge K.W. Lung dated 24 August 2023)

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 documents and oral submissions by counsel for the Applicants in open court;

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

1.  Leave to apply for Judicial Review be refused; and

2.  The applicants’ application is dismissed with no order as to costs;

3.  The applicants’ own costs be taxed in accordance with the Legal Aid Regulations; but if the service is on pro bono basis, there be no order as to costs.

Observations for the Applicant:

THE APPLICATION

1.The applicants in these two proceedings sought leave to apply for judicial review against the decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicants are members of a family and are nationals of India and Indonesia.  The 1^st applicant in HCAL 1007 of 2019 (“HCAL 1007”) is an Indian and the father of the family (the “Father”), while the 2^nd applicant is the family’s youngest daughter.  On the other hand, the 1^st applicant in HCAL 946 of 2019 (“HCAL 946”) is an Indonesian and the mother of the family (the “Mother”).  The 2^nd applicant to the 5^th applicant are the daughters of the family.

3.For HCAL 1007, the Father filed his Form 86 on 12 April 2019 against the Board’s Decision, and after the birth of the youngest daughter, he sought to amend his Form 86 to add her to his leave application.  Leave was granted on 7 December 2020.

4.For HCAL 946, the Mother and the daughters sought to challenge the same Board’s Decision on 8 April 2019.

5.By order dated 24 August 2023, the Court directed that HCAL 946 is the main action to be consolidated with HCAL 1007 (“the consolidated action”) and the evidence of the actions are mutually admissible. Leave was granted to amend Form 86 of HCAL 946 and to file affirmation in support of the amended Form 86. Leave was also granted to re-amend Form 86 of HCAL 1007 and to file affirmation in support of the Re-amended Form 86.

6.The consolidated action shall be constituted the Mother as the 1^st intended applicant, the Father as the 2^nd intended applicant and the other 4 children as the 3^rd, the 4^th, the 5^th and the 6^th intended applicants as set out in the ex parte summons dated 4 August 2023.

7.All the applicants are represented by Ms Allison Wong, counsel on the instructions of Messrs. Daly & Associates.

The applicants and their respective Director’s Decisions

The Father

8.The Father entered Hong Kong illegally on 1 March 2008 and was arrested by the police for illegally remaining on 4 March 2008.  He raised a torture claim on 18 March 2008.  After the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and was assessed on all applicable ground.  His claim was made on the basis that, if refouled to India, he would be harmed or killed by a group of Hindus, and by his friend Vijay Kumar (“Vijay”).              

9.The Father claimed that, as a Muslim, he and his family were the outcast in his home village, of which the residents were mostly Hindus.  As he excelled in both his studies and sports, the Father was often bullied by a group of Hindu students.  The first incident occurred on 4 March 2007 when the group verbally abused the Father outside the small canteen operated by him.  Two months later, the group assaulted him outside a bus stop with cricket bats. Initially, the Father thought he only sustained bruises.  It turned out he had a severe injury in his right ear which was later deafened.         

10.Angered by the assault, the Father hired some people to have revenge on the group.  On 11 October 2007, the group intercepted the Father.  They were accompanied by an influential politician and they verbally threatened the Father.  Feared for his life, the Father fled to Hong Kong for protection.  In addition, a dispute arose between the Father and Vijay in relation to the agency fee.  Vijay was defrauded and believed that the Father was part of the scam. Since then, Vijay had been looking for the Father and harassing his family.  As the threats continued and the political environment in India was unfriendly to the Muslims, the Father sought non-refoulement protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 April 2017 by the Director (the “Director’s Decision on the Father”).

11.By way of the Director’s Decision on the Father, the Director dismissed the Father’s claim on all applicable grounds, namely, the Torture risk[1], BOR2 risk[2], BOR3 risk[3] and the Persecution risk[4].  In elaboration, the Director found that (i) the future risk of harm upon his return to India was assessed to be low [15]-[20]; (ii) state protection would be available to him [21]; and (iii) internal relocation was a viable alternative [22].  

The Mother and the four elder daughters

12.The Mother last entered Hong Kong as a foreign domestic helper on 5 September 2010. However, her employment contract was prematurely terminated.  She was last permitted to stay as a visitor until 16 October 2012.  On 6 July 2012, she gave birth to her eldest daughter who was permitted to remain until 13 August 2012. They both did not depart and had overstayed.

13.On 29 November 2012, the Mother and the eldest daughter surrendered to the Immigration Department.  On 25 July 2013, they lodged a non-refoulement claim.  Thereafter, on 8 November 2013 and 27 January 2015 respectively, the Mother gave birth to the second and third daughters.  She lodged the non-refoulement claims on their behalves on 14 February 2017.  On 29 December 2016, the Mother gave birth to the fourth daughter.  She lodged a non-refoulement claim on her behalf on 22 November 2017.    

14.The daughters were born in Hong Kong.  Their non-refoulement claim were made on the same basis as the Mother’s, that is, if refouled, they would be harmed or killed by the Mother’s ex-husband, Pramu or they would be discriminated by her family members or community as she gave birth to them with an Indian man.

15.In brevity, the Mother married Pramu in 2001.  However, when she was working in Hong Kong, she fell in love with the Father and decided to file a divorce with Pramu.  Pramu, while consenting to the divorce, uttered threats to the Mother.  Meanwhile, the Mother’s family also saw her as a disgrace to the family because of her relationship with the Father.  Feared that Pramu would harm her if he found out about her new relationship and her Muslim family’s disapproval, the Mother decided to seek protection in Hong Kong.  Details of their claim are set out at paragraph 6 of the Notice of Decision dated 24 July 2018 by the Director (the “Director’s Decision on the Mother and Children”).

16.By way of the Director’s Decision on the Mother and Children, the Director also dismissed their claims on all applicable grounds, namely, the Torture risk[5], BOR2 risk[6], BOR3 risk[7] and the Persecution risk[8].  In elaboration, the Director found that (i) there was no evidence that Pramu or the Mother’s family would materialize the threats [23]-[24]; (ii) state protection would be available to them [25]-[27]; and (iii) internal relocation was a viable option [28]-[31].

17.For simplicity, the Director’s Decision on the Father and the Director’s Decision on the Mother and Children are referred to collectively as the “Director’s Decisions”.

The youngest daughters

18.The family’s youngest daughter was born on 21 December 2018.  On 17 July 2019, 25 July 2019 and 9 September 2019, the Mother lodged a non-refoulement claim on her behalf.  Her claim was made on the same basis as those of the Mother and her four elder sisters.

19.By way of the decision dated 31 December 2019 (the “Director’s Decision on the Youngest Daughter”), the Director dismissed her claim on all applicable grounds, namely, the Torture risk[9], BOR2 risk[10], BOR3 risk[11] and the Persecution risk[12].  In elaboration, the Director found that (i) it was a mere speculation that Pramu still had adverse interest against the Mother and her family [14]; (ii) the dispute with Pramu was private in nature without state involvement [15]; (iii) the family grudge and the potential discrimination upon refoulement were also speculations without evidential collaboration [16]; (iv) state protection would be available to her [17]-[20]; (v) internal relocation was a viable option [21]-[25].    

The Board’s Decision

20.The applicants, except the youngest daughter who had filed a separate appeal as described below, appealed the Director’s Decisions to the Board.  The Board noted that, the Father, the Mother and the youngest daughter, made separate non-refoulement claims.  Having considered the circumstances, the Board decided that it would be sensible to evaluate their claims as a family [15]-[18].  On 1 December 2017 and 12 November 2018, the Board conducted an oral hearing for their appeals, during which they were assisted by an interpreter [53].

21.At the outset, the Board inquired the citizenship of the daughters.  The parents agreed that the children were citizens of both India and Indonesia [57].  In light of the unity of a family, while the family indicated that they intended to remain together in Indonesia, the Board assessed their claims against both India and Indonesia as risk States [59].

22.Insofar as the Father’s claim was concerned, the Board found that the accounts about the alleged bullying suffered by the Father were illogical, referring to the injuries he sustained and the business he operated.  The Father conceded before the Board that, after he revenged for the assault occurred at the bus stop, his dispute with the group was largely at an end [61]-[62]. In these premises, the Board refused to accept that he would face any real risk of harm from the group if refouled to India [63].  In addition, the risk of harm from Vijay, taking the Father’s claim to its highest, did not involve any convention reasons or any other sorts that warranted a non-refoulement protection [66].  Further, the Board found that the political turmoil he mentioned before the Director no longer existed [67]-[69].  As the family shared the same concerns and fears of harm with the Father, for the above reasons, the Board also rejected the family’s claimed risk of harm if refouled to India.

23.For the issue of internal relocation in India, the Board took into account all the factors, including the applicants’ personal circumstances [76], and concluded that internal relocation to Mumbai or New Delhi was a viable option for them [77].

24.For the Mother’s claim, the Board accepted the Mother’s version of events and that she would face a risk of harm from her parents, siblings and her ex-husband [80]-[81].  However, the Board found that any harm to the Mother from her family or ex-husband was not for convention reasons or any other sorts that warranted a non-refoulement protection.  It was a private dispute without state involvement and her injuries, if any, would not constitute a threat to life which substantiated BOR3 or BOR2 risks [81].  Having considered the relevant circumstances, and the applicants’ claimed personal difficulties, the Board found that internal relocation to Jakarta was a viable option for them [86]-[89].

25.For the aforesaid reasons, by way of the Board’s Decision, the Board rejected the claims of the Father, the Mother and Children, and dismissed their appeals.

26.Later, the Mother, on behalf the youngest daughter, filed an appeal against the Director’s Decision on the Youngest Daughter.  On 13 May 2020 and 29 May 2020, the Board conducted an oral hearing for her appeal, during which both the Mother and the Father testified with the assistances of interpreters [106].  It also assessed the applicant’s claim against both India and Indonesia as risk States [9]-[10].

27.The youngest daughter relied upon the same fact as that of her mother [17].  The Board recapped the claims of the Mother and the Father [18]-[26], as well as its findings in the Board’s Decision [27].  It further considered the additional claim that the youngest daughter might be separated from her father but opined that the rights under article 19 of Section 8 of BOR (“BOR 19”) and under the United Nations Convention on the Rights of the Child (“CRC”) were not applicable [95]-[103].

28.In light of the findings in the Board’s Decision, the Board found that the youngest daughter would not face any real risk of harm if she relocated with the Mother to Jakarta [112]-[114].  In addition, she would not face real risk of harm if she relocated with the Father to Mumbai or New Delhi [123]-[125]. 

29.For the above reasons, on 26 August 2020, the Board also rejected the youngest daughter’s claim and dismissed her appeal. 

Application for leave to apply for judicial review

30.Counsel for the applicants has submitted the grounds below in support of the application:

(1)  Error of law: inadequate consideration of the individual circumstances of the minors;

(2)  Procedural unfairness: no legal representation for the minors; and

(3)  Effect of the minors’ claims on the 1^st and 2^nd applicants’ claim.

31.The grounds will be elaborated below.

DISCUSSION

General legal principles

32.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its decisions 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).

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

34.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.”

35.The Court of Final Appeal in Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 30 November 2007 held:

“14. The requirement for leave to apply for judicial review is an important filter introduced by statute. Section 21K(3) of the High Court Ordinance, Cap. 4 and Order 53 rule 3(1) of the Rules of the High Court. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges. …

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.”

(1)  Error of law: inadequate consideration of the individual circumstances of the minors

36.Where in an application for leave to apply for judicial review of the Board’s Decision and complaints are made that the Board had not taken into consideration issues such as failing to consider the psychological harm arising from discrimination of the children; greater risk of social discrimination in case of a mixed-race child born out of wedlock or being an illegitimate child; gender disparity in education and the impact of it on the children; greater risk of being kidnapped; special assessment of the difficulties, psychological and/or emotional harm to the children back in their countries by reference to their gender, mixed-race, language impediment and without taking a holistic analysis of the risks profile, the following approach as set out by the Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration [2013] 1 HKC 526, Hon. Cheung  CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 have to be born in mind:

“19. … … The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

22. How the requirement of high standards of fairness would modify or otherwise affect, in practice, the burden of proof as it is otherwise generally understood would obviously depend on the circumstances of each individual case. …

23. … … Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to common sense and fairness.

25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.

28. Thirdly, what is the standard of proof?... ‘… In Article 3 of the Convention, ‘substantial grounds’ is required to establish a claim, which is more than a mere possibility of torture but do not need to be highly likely to occur to satisfy that provision’s conditions. The risk of torture must go beyond mere theory or suspicion. The risk does not have to meet the test of being ‘highly probable’, but it must be ‘personal and present’. For the purposes of Article 3 of the Convention, a foreseeable, real and personal risk of being tortured must exist in the country to which a person is returned.’

29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. …

30. ... In deciding whether there are ‘substantial grounds for believing’ that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact. …

52. …the applicant is and was throughout legally represented.  If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … 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.  …”

37.Given the fact that the applicants were unrepresented before the Board, where they apply for leave for judicial review of the Board’s Decision and intend to make such complaints, the legal representative, having obtained the relevant materials and instructions from the applicants, should put to the court such child-specific issues which are relevant to the applicants as held by the Court of Appeal in the above case and which would have been raised to the Board for consideration at the time of the hearing but had not been submitted because of lack of legal representation. Only by providing such information to the court, will the court be in a position to determine whether there is a realistic prospect of success in the applicants’ intended judicial review against the Board’s Decision. If the legal representative does not provide the information to the court, the court will then assume that there is no such ground in support of the applicants’ appeal even if the Board’s Decision is set aside and the matter is remitted to the Board for re-consideration and it will be a waste of costs and time to make an order to set aside the Board’s Decision.

38.I appreciate that there will be costs for obtaining expert evidence to support the psychological or emotional impacts on the children, these costs will be inevitable and well spent as the expert evidence can be produced to the Board for its assessment if the case is remitted to the Board for re-assessment.

39.Counsel has raised those grounds above against the Board without putting forward any supporting evidence to show that the children will suffer from psychological or emotional impact, which may require medical evidence for the assessment. Counsel’s reference to the COI or articles relating to the general situations in India or Indonesia are general assertions without specific evidence to establish the personal risks of the children. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA as they then were, 27 November 2020 held:

“23. … …General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.”

40.Also, citation of the general principles of the law will not assist the applicants’ case as the Court of Appeal in Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration [2022] HKCA 836, Hon Chu JA and S T Poon J, 13 June 2022, held:

“29. … … general assertions or propositions of law cannot assist the applicant when he fails to condescend to the requisite particulars related to the facts of his case: see Re Mizan Sikder [2019] HKCA 20; Ibrahim v Simon Russell [2019] HKCA 1327; Re Salim Ahmen [2020] HKCA 244.”

41.There is another significant issue in relation to assessment of the minors’ claim. The minors have to rely on the same applicable risks as their parents’ in support of their claims. The Board has to make assessment of the applicable risks in relation to the children, taking into consideration the child-specific issues as the Court of Appeal in Fabio’s case said at paragraph 34(c):

“Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child.”

42.The minor applicants have to establish that the psychological or emotional impact on them upon their return to their country meets the threshold of BOR 3 risk and Persecution risk. However, there is no such evidence before this court.

43.In paragraph 46 of the amended Form 86, the applicants said that the Board assessed the risks of harm of 3^rd to 6^th applicants together with that of the 1^st and/or 2^nd applicant “as a family”. It is not apparent from the Board’s Decision that the Board had adequately assess [sic] any child-specific risk.

44.In order to ascertain the situation, we may have to examine the Board’s Decision itself:

“69. I found above that father has substantiated there is a real risk of CIDTP if he is refouled to India and he returns to live in his home village in Tamil Nadu. Further below, I assess what is the risk to the family and whether that real risk of CIDTP extends throughout India.

70. ImmD did not consider the Appellants’ claims as a family and failed to have regard to the children being eligible for Indian citizenship by decent.

72. … The mother told me she did not personally fear any harm in India, but she had the same concerns as the father related to language, culture and finances. I add that any psychological or emotional harm to the family in adjusting to a new language and new culture in India would not be harm so serious as to meet the high threshold to be any form of Proscribed Harm.

76. I am mindful of the claims of the Appellants regarding difficulties they will face in establishing a new life in Mumbai, or New Delhi, including finding a place to live, finding employment and finding schooling for the children. I am mindful too the mother is expecting their fifth child. I am mindful as well that the mother and children do not speak any Indian languages…. I accept the difficulties facing the Appellants if they were to relocate to Mumbai or New Delhi are substantial. But I do not consider they would meet the very high test of amounting to undue hardship or that it would be unreasonable for the Appellants to access internal relocation in Mumbai or New Delhi.

78. The mother has consistently claimed she fears harm to her and the children from the parents and the siblings and from her ex-husband Mr P, due to her relationship with the father.

81. … … I do consider though that the harm to the mother from mother’s parents and/or siblings and/or Mr P may involve actual bodily injury or intense physical or mental suffering, but would not extend to a threat to the life of the mother and therefore substantiates a risk to the mother under BOR 3 but not BOR 2.

82. I consider further below whether the risk of CIDTP to the mother extends to the father and the children, and whether there is a real risk though [sic] out all of Indonesia.

84. … … I repeat that any psychological or emotional harm to the father and the children in adjusting to a new language and new culture in Indonesia would not be harm so serious as to meet the high threshold to be any form of Proscribed Harm.

85. … … I also consider there is a real risk of CIDTP to the husband and the children from the mother’s parents and/or siblings and/or Mr P, if the father and children are removed to Indonesia with the mother.

86. At the hearing, I also discussed with the father and the mother the issue of Internal Relocation within Indonesia to Jakarta. The father and mother told me about information the mother read on Facebook regarding kidnappings in Indonesia….

87. On the evidence before me, I do not consider there to be a real risk to the Appellants that the children will be kidnapped if they relocated to Jakarta… And given the massive populations of tens of millions of people in Jakarta, I consider there to be only a remote or speculative risk and therefore not a real risk to the Appellants from the mother’s parents/siblings/Mr P, if the Appellants are removed to Indonesia and relocate to Jakarta.

88. I am mindful of the claims of the Appellants regarding difficulties they will face in establishing a new life in Jakarta, including finding a place to live, finding employment and finding schooling for the children. I remain mindful the mother is expecting their fifth child. I am mindful as well that the father does not and the children only speak limited Indonesian. I accept the difficulties facing the Appellants if they were to relocate to Jakarta are substantial. But I do not consider the difficulties they face, including financially, would meet the very high test of amounting to undue hardship or that it would be unreasonable for the Appellants to access internal relocation in Jakarta.

90. I have considered the claims of each of the Appellants individually and cumulatively, as well considering the personal circumstances of each of the Appellants. On the credible evidence before me, I do not consider the Appellants face a real risk of Proscribed Harm from the bullies, the family of Mr P [sic], Mr PK [sic] or the political situation in Tamil Nadu if the Appellants are removed to Risk State 1^[13]. Nor do the Appellants face a real risk of Proscribe Harm from the mother’s parents, siblings or ex-husband and/or Indonesian society, if the Appellants are removed to Risk State 2^[14].”

45.It is clear that the Board had considered the children’s case as a family and separately as individuals. It had discussed the issues with the Father and the Mother. It had also taken on board the concerns of the parents in relation to their children, including the 5^th one being expected. It had dealt with those issues and come to its conclusion as it was entitled to do. The Court does not find any legitimate reason to interfere with the Board’s findings and conclusions. It is difficult to understand counsel’s submission that it is uncertain if there had been sufficient separate consideration of individual circumstances for the children. Separate consideration of the minors’ interest does not necessarily mean that the minors’ case must be considered without taking into account of the family as a whole. I consider that the assessment of the minors’ interest will not be practical without considering the family as a whole.

46.For the reasons above, ground (1) fails.

(2)  Procedural unfairness: no legal representation for the minors

47.The applicants submit that there was no mention of any COI in relation to child-specific risks in India and Indonesia by the applicants due to lack of legal representation. Therefore, the children’s claim had not been adequately advanced to the Board.

48.As discussed above, the starting point must be the applicants raised the child-specific issues with the Board, unless they are so obvious that it was unreasonable for the Board to omit them.

49.From the evidence of the Board’s Decision quoted above, it is clear that the adjudicator had already had a rather detailed discussion with the Father and the Mother in relation to their concerns of the applicable risks for themselves and their children. To mention the family together with the children does not necessarily mean that there was no separate consideration of the children’s claims. This issue must be viewed in substance. This ground clearly cannot stand.

(3)  Effect of the minors’ claims on the 1st and 2nd applicants’ claim

50.As ground (1) and ground (2) fail, this ground fails too.

51.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

52.Therefore, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

DISPOSITION

53.The applicants’ application is dismissed with no order as to costs.

54.The applicants’ own costs be taxed in accordance with the Legal Aid Regulations; but if the service is on pro bono basis, there be no order as to costs.

Dated the 23^rd day of February 2024

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