Re Shahul Hameed Beer Mohamed and Others

CACV 77/2024, [2026] HKCA 632

On Appeal From [2024] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2024

(ON APPEAL FROM HCAL NO 946 OF 2019 and 1007 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.This is the applicants’ appeal against the order of Deputy High Court Judge KW Lung (“the Judge”)  dated 23 February 2024 ([2024] HKCFI 331)  (“the Leave Decision”)refusing to grant leave to apply for judicial review to the applicants.

2.The intended judicial review is against the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  respectively dated 28 March 2019[1] and 26 August 2020[2] (respectively “the Board’s 1^st Decision” and “the Board’s 2^nd Decision”, and collectively “the Board’s Decisions”), whereby the Board respectively dismissed the applicants’ appeals against the decisions of the Director of Immigration (“the Director”)  respectively dated 28 April 2017, 24 July 2018 and 31 December 2019.

3.At the end of the hearing of the appeal, we reserved our judgment to be handed down in writing.  This is what we do now.

B.  BACKGROUND

4.The factual background and procedural history of this case has been set out at [1] - [19] of the Leave Decision and need not be repeated here.  For present purposes, we will highlight the following.

5.The applicants are members of a family.  The 1^st and 2^nd applicants are respectively the father (“the Father”)  and the mother (“the Mother”)  (collectively “the Parents”).  The 3^rd to 6^th applicants are their elder daughters (“the Elder Daughters”)  and the 7^th applicant their youngest daughter (“the Youngest Daughter”)  (collectively “the Daughters”).

6.The Father is an Indian national and the Mother an Indonesian national.  The Parents have confirmed with the Board that the Daughters are nationals of both India and Indonesia[3].

7.The Father entered Hong Kong illegally on 1 March 2008 and was arrested by the police for illegally remaining on 4 March 2008[4]. On 18 March 2018, he raised a torture claim, which was subsequently treated as a non-refoulement claim after the commencement of the unified screening mechanism (“the Father’s Claim”).  His claim was made on the basis that, if refouled to India, he would be harmed or killed by a group of bullies (who are Hindus)  as he is a Muslim, and by his friend Vihay Kumar (“Vihay”)  as well given the political situation in his hometown Tamil.

8.The Mother entered Hong Kong as a foreign domestic helper on 5 September 2010.  Her employment contract was prematurely terminated and she was permitted to stay as a visitor until 16 October 2012.

9.The Mother was previously married in Indonesia before she came to Hong Kong.  She however fell in love with the Father in Hong Kong.  She gave birth to her eldest daughter on 6 July 2012, who was permitted to remain until 13 August 2012.  They both did not depart and overstayed, and they subsequently surrendered themselves to the Immigration Department on 29 November 2012.

10.On 25 July 2013, they lodged a non-refoulement claim on the basis that if they are refouled to Indonesia, 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 her daughter with an Indian man.

11.Thereafter, on 8 November 2013, 27 January 2015, 29 December 2016, the Mother gave birth to the others of the Elder Daughters respectively.  She later also lodged non-refoulement claims on their behalf on the same basis.  For convenience, these claims by the Mother and the Elder Daughters are collectively referred to “the Mother and Elder Daughters’ Claims”.

12.Subsequently, on 21 December 2018, the Mother gave birth to the Youngest Daughter. Thereafter, the Mother on behalf of the Youngest Daughter also lodged a non-refoulement claim against the return to Indonesia (“the Youngest Daughter’s Claim”).

13.In other words, the Mother and Elder Daughters’ Claims and the Youngest Daughter’s Claim (with the Mother acting on their behalf)  are against the return to Indonesia.  The Father’s Claim, which was lodged independently on his own is against the return to India.

B1.    The Director’s Decisions

14.As the Father lodged his non-refoulement claim separately from that of the Mother and the Daughters, the Director proceeded to assess their claims separately.

15.By a decision dated 28 April 2017 (“the Director’s 1^st Decision”), the Director first dismissed the Father’s Claim on all applicable grounds, namely, the risk of torture[5], BOR2 risk[6], BOR3 risk[7], and persecution risk[8].

16.By a decision dated 24 July 2018 (“the Director’s 2^nd Decision”), the Director also dismissed the Mother and Elder Daughters’ Claims on all the applicable grounds.

17.By a decision dated 31 December 2019 (“the Director’s 3^rd Decision”), the Director further dismissed the Youngest Daughter’s Claim on all the applicable grounds.

B2.    The Board’s Decisions

18.On 15 May 2017, the Father appealed against the Director’s 1^st Decision to the Board.  The Board first heard his appeal on 1 December 2017.  At the hearing, the Board decided to adjourn the hearing of his appeal to wait for the Director’s decision on the Mother and Elder Daughters’ Claims as the Board considered it only proper to consider their claims together “as a family”.  The Mother and the Elder Daughters subsequently filed their appeals against the Director’s 2^nd Decision to the Board in August 2018.  The Board thus heard their appeals together on 12 November 2018 and assessed their appeal/petition “as a family”[9]. At the hearing, the Mother and Father acted in person and on behalf of the Elder Daughters with interpretation provided.

19.By the Board’s 1^st Decision, the Board rejected the Father’s, and the Mother and Elder Daughters’ Claims on all applicable grounds and dismissed their appeals.

20.The Board’s reasons for its decision have been summarised in detail by the Judge at [20] - [29] of the Leave Decision and will not be repeated here.  In essence:

(1)  Regarding the Father’s Claim, the Board found that there was no real risk that he or his family would face harm from the bullies or by reason of the political situation in Tamil, but the Board accepted that they might face a real risk of CIDTP (under BOR3)  from Vihay’s family if refouled to India.[10]  However, the Board considered that it would be reasonable for the applicants as a family to internally relocate to Mumbai or New Delhi, where they would not face any such real risk.[11]

(2)  As to the Mother and Elder Daughters’ Claims, the Board found that there would be a real risk to the Mother and her family that her parents and/or siblings and/or Pramu might harm them in her home village which might amount to CIDTP under BOR3.[12]  However, the Board found that the Mother and her family could reasonably and safely relocate to Jakarta.[13]  Accordingly, the Board dismissed their appeal and rejected their non-refoulement claims.

21.Later, on 13 January 2020, the Mother lodged an appeal against the Director’s 3^rd Decision on behalf of the Youngest Daughter.  The Board heard her appeal on 13 May 2020 and 29 May 2020.  Both the Parents and the Youngest Daughter attended the hearings and were assisted by interpreters.

22.By the Board’s 2^nd Decision, the Board also rejected the Youngest Daughter’s Claim on all applicable grounds and dismissed her appeal.

23.The factual findings and reasons made by the Board in the Board’s 1^st Decision were adopted in the Board’s 2^nd Decision in relation to the assessment of the Youngest Daughter’s Claim.[14] Furthermore, the Board rejected the Father’s new assertion that he was suffering from a medical condition for six months, as it was not a valid basis for non-refoulement protection.[15]  After considering various Country of Origin Information (“COI”), the Board further rejected the contention that there would be a real risk of harm to the Youngest Daughter because she was a Muslim, as there are millions of Muslims in India; and harm arising from such social discrimination and harassment would not be so serious as to meet the requisite severity to amount to Proscribed Harm.[16]

C.  THE LEAVE DECISION

24.On 8 April 2019, the Mother filed a Form 86 in HCAL 946 to apply for leave to apply for judicial review against the Board’s 1^st Decision.  The Form 86 was later amended with the court’s leave on 24 August 2023, joining the Father and the Elder Daughters as applicants.

25.On 12 April 2019, the Father filed a Form 86 in HCAL 1007 for leave to apply for judicial review of the Board’s 1^st Decision. The said Form 86 was amended with the court’s leave on 7 December 2020 joining the Youngest Daughter as applicant, and subsequently, it was re-amended with leave, to challenge against the Board’s 2^nd Decision instead of the Board’s 1^st Decision.

26.In essence, the applicants relied on the following grounds in their intended judicial reviews as summarised by the Judge at [30] of the Leave Decision:

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

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

(3)  Effect of the minors’ claims on the Mother’s and Father’s claims.”

27.An oral hearing of both applications was conducted before the Judge on 24 August 2023.  The applicants were represented by counsel during the hearing.

28.On 23 February 2024, the Judge refused to grant them leave to apply for judicial review.  His reasons were set out in detail in [32] - [52] of the Leave Decision.  In essence, the Judge rejected the allegation that there was inadequate consideration of the individual circumstances of the Daughters, as counsel failed to put forward any supporting evidence to show that the Daughters would suffer from the alleged psychological or emotional impact on them upon refoulement: [36] - [42].  After reviewing the Board’s 1^st Decision, the Judge held that the Board had considered the Daughters’ case as a family and separately as individuals: [44] - [46].  The Judge also considered that the Board did raise a rather detailed discussion with the Parents in relation to their concerns of applicable risks for themselves and the Daughters.  On this basis, the Judge rejected the argument that there was procedural unfairness for not providing legal representation for the Daughters: [47] - [49].  As the above intended grounds of judicial review failed, the Judge also rejected the argument that the Daughters’ Claims would affect the Parents’ claims: [50] - [51].

D.  THIS APPEAL

D1.  Grounds of appeal

29.In their Notice of Appeal dated 1 March 2024, the applicants, then acting in person, only stated:

“We don’t want to go back to our country. We have threatening in our country for me and my family. We have five children in here we already 15 years waiting for refuge with no work permission. Above decision say no enough satement. Sir practically my and my wife and my baby’s future will spoil if we go back to our country. If we move to another place in our country our enemy’s also can move from them place to find us. We are have no home, no relative, no language and nothing in our hand with five baby’s. I am sure that we will face very serious situation with threatening if we go back. Please recheck my situation and my baby’s future and our threatening life. If we go back my baby’s all girls they also face harmful and fearful, and threatening life. About education my baby’s will face spoil education. Please give us chance for my baby’s future. Please chance for explain again. Thanking you sir.” [sic]

30.Legal aid was granted to the applicants on 6 June 2024.  On 18 July 2024, a Supplementary Notice of Appeal (“SNOA”)  was filed by the applicants’ legal representatives.  In essence, the applicants relied on the following two grounds of appeal:

(1)  The Judge had erred in law as to the court’s role in judicial review.  The Judge had confused the difference between merits in the grounds of judicial review and merits in the non-refoulement claims.  As the court is not a specialist tribunal, it must not usurp the Board’s function[17]; and

(2)  The Judge had failed to properly apply 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 in dealing with the Daughters’ challenge against the Board’s Decisions.  Had he properly done so, he ought to have found that the circumstances of the minors required a child-specific assessment, and that those circumstances were “inherently evident from the applicants’ claims”[18].

31.On 31 October 2024, the applicants lodged their written submissions in support of the present appeal.

32.Insofar as the Daughters’ appeal is concerned, Mr Wong for the applicants argues that the Board failed to separately assess and give adequate reasons in relation to each daughter’s claim against the return to both Indonesia and India, falling foul of the principles laid down in Fabio Arlyn Timogan,supra.  The Judge in concluding otherwise had therefore also similarly erred in law.

33.In relation to the Parents’ appeal, Mr Wong further submits that, should the Daughters’ appeal succeed, it should also similarly be allowed under the principle of “unity of family” as adopted by the Board in assessing their claims.

34.As this is an appeal against the Judge’s refusal to grant leave to apply for judicial review, Mr Wong emphasizes that the applicants should succeed as the above contentions are at the least reasonably arguable with a realistic prospect of success.

D2.  Relevant legal principles

35.As Mr Wong has fairly and rightly emphasized, the principal premise of this appeal is whether the Board and thus the Judge had failed to deal with the Elder Daughters’ Claim and the Youngest Daughter’s Claim (collectively “the Daughters’ Claims”)  properly in accordance with the principles laid down in Fabio concerning a minor’s claim.

36.In this respect, the court’s approach in considering an unrepresented minor’s claim for non-refoulement protection as pronounced in Fabio is well settled and can be summarised as follows:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-maker should consider each claim by reference to the personal circumstance of each claimant.

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  In this respect, it does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations.

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

(4)  When dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non-refoulement claim, the court should pay special attention to examine in the context of the high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not, or had not properly, been advanced to the Board because of the absence of legal representation before the Board.

See Re Jasvir Singh [2021] HKCA 53, [30] - [31], following Fabio Arlyn Timogan, supra, [34].

D3.  Discussion

37.Given that the Parents’ appeal is solely dependent upon the success of the Daughters’ appeal, we will first consider the merits of the Daughters’ appeal.

D3.1  The Daughters’ appeal

38.Under this part of the appeal, Mr Wong has succinctly advanced three principal arguments in his skeleton and orally in support of the contention that the Board had failed to properly assess each of the Daughter’s claims about child-specific risks, which failure was propounded by the lack of representation.  In the premises, the Judge also erred in holding otherwise. We will deal with these arguments in turn as follows.

39.First, Mr Wong submits that in relation to the Daughters’ Claims brought by the Mother on their behalf against the return to Indonesia, a child-specific risk was in fact specifically raised by them. This was noted and recognised by the Board in paragraphs 37k - l and 39 of the Board’s 1^st Decision (and repeated in paragraphs 19k and 21 of the Board’s 2^nd Decision)  as follows:

“37. According to the mother in the NCF and at the Interview:

...

k. The mother and the daughters will face derogatory treatment from the Indonesia community throughout that country. The mother will face societal discrimination as a re-married woman. The children will face societal discrimination because they are mixed-race and being without a father. They will be bullied and denied a place in school.

l. The Indonesia authorities will not protect the mother or the children because they are inefficient and she has no money to bribe the police. Moreover, the police will consider any discrimination the mother and the children may face as a private matter.

...

39. In the NOA the mother states she fears her family and Indonesian society will hate her and the children. She does not have any relations to help her. She fears she and the children will be separated from the father. Again, I am not conducting judicial review of the Family Decision. My decision will also replace the Family Decision.” (emphases added)

40.In other words, the Daughters through the Mother had raised the child specific risk that they would be bullied and discriminated in the society and would be denied schools because they are mixed-race children and without a father.  We will conveniently refer this claimed “mixed-race” discrimination risk as “the Mixed-Race Child Discrimination Risk”.

41.However, Mr Wong further submits, while having dealt with the other bases of the Daughters’ Claims which are the same bases of the Mother’s claim, it is at least reasonably arguable that the Board had not specifically dealt with and addressed the Mixed-Race Child Discrimination Risk in both the Board’s 1^st and 2^nd Decisions in relation to Indonesia.

42.We agree.

43.As summarized above, the bases of the Mother’s Claim are in principal the fear of harm to her and her daughters from her parents, siblings and ex-husband, Pramu, because of her marriage to the Father who is not an Indonesian: see paragraphs 78 - 80 of the Board’s 1^st Decision, and paragraphs 109 - 111 of the Board’s 2^nd Decision.  The Board in fact found at paragraph 81 of the Board’s 1^st Decision that the Mother had substantiated this fear and thus there “is a real risk the [Mother’s] parents and/or siblings and/or [Pramu] may harm the [Mother] if the [Mother] is refouled to Indonesia and resumes living in her home village.”  The Board further held that, although the said risk of harm was not for a Convention Reason, he considered that the said harm from the Mother’s parents and/or siblings and/or Pramu “may involve actual bodily harm or intense physical or mental suffering” under BOR3 (CIDTP)  albeit not BOR2 (threat of life).  At paragraphs 83 - 85 of the Board’s 1^st Decision, the Board then further accepted that the same risk of harm would extend to the Father and the Daughters if they were to return to Indonesia living in her home village together.

44.The Board then turned to consider the issue of internal relocation and found that the Mother, Father and Daughters would not face any of the recognised risks if they are to relocate to Jakarta.  He explained his reasons at paragraphs 86 - 89 of the Board’s 1^st Decision as follows[19]:

“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. The mother raised too that there are many natural disasters in Indonesia. The mother said she was unfamiliar with Jakarta. She was worried she may meet someone in Jakarta who would inform her parents/siblings/Mr P of the Appellants' whereabouts. The father too expressed he feared harm from mother's parents, siblings or Mr P.

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. I do not consider any risk of harm to the Appellants from a natural disaster meets the requirements to be any Applicable Ground. That is a risk faced by all residents of Indonesia. There is no real or personal risk to the Appellants. Given the distance between the mother's home village in East Java and 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 live in Jakarta.

88. I am again 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.

89. For the above reasons, I find the Appellants would not face a real risk of Proscribed Harm for any Applicable Ground from the mother's parents, siblings and/or Mr P, if the Appellants are removed to Indonesia and access Internal Relocation to Jakarta.” (emphasis added)

45.The Board then went on to conclude that the applicants as a family would not face any recognised risk if they are to return to live in Jakarta in Indonesia at paragraph 90[20]:

“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 PK, Mr PK or the political situation in Tamil Nadu if the Appellants are removed to Risk State 1. Nor do the Appellants face a real risk of Proscribed Harm from the mother's parents, siblings or ex-husband and/or Indonesian society, if the Appellants are removed to Risk State 2.” (emphasis added)

46.From the above, we agree that it can at least be reasonably argued that Board had not dealt with at all or properly the Mixed-Race Child Discrimination Risk in both the Board’s 1^st and 2^nd Decisions:

(1)  In relation to the Board’s consideration of the risks that the Mother, Daughters and Father would face if they were to return to live in the home village in Indonesia (at paragraphs 78 - 85 of the Board’s 1^st Decision), it had not referred to or considered that risk at all;

(2)  In relation to the issue of Internal Relocation, there was also no reference to or mentioning of the specific Mixed-Race Child Discrimination Risk.  Although the Board at paragraph 88 referred to the difficulties that the family might face in establishing a new life in Jakarta, including finding schooling for the Daughters, it was wholly unclear as to whether it was in relation to that risk.  In any event, even if the Board was indeed referring to that risk, it had not explained why the risk was not established. In this respect, there was no reference to any materials, such as the COI, as a basis to suggest that there is no or there is only a low risk of any discrimination against mixed-race children as claimed by the Mother.

(3)  For the same reasons, it is also entirely uncertain as to whether the Board was addressing the Mixed-Race Child Discrimination Risk when it said at paragraph 90 of the 1^st Decision that the applicants would not face a real risk of Proscribed Harm from the Mother’s parents, siblings or ex-husband “and/or Indonesian Society”, and even if so, on what basis that the Board considered the said risk was not established.

47.Second, in relation to the return to India, Mr Wong also argues that the Board had similarly failed to specifically assess the Mixed-Race Child Discrimination Risk when he concluded that the family could be re-fouled to Mumbai or New Delhi, as there is absolutely nothing in this part of the Board’s 1^st and 2^nd Decisions which considered this risk.  The Board therefore had again fallen foul of the Fabio principles in failing to address and assess this child-specific risk independent of the bases of the Parents’ own claims.

48.It is correct that in considering whether the Father together with the Mother and the Daughters could be returned to India, the Board did not at all consider or refer to the Mixed-Race Child Discrimination Risk.  However, in our view, this does not by itself show that the Board erred in not following the Fabio principles in the circumstance of this case.

49.As mentioned above, under the Fabio principles in a case involving a non-represented minor, the Board would be regarded as having erred in law or acted irregularly procedurally in not having considered a child-specific risk independently when there existed materials before the Board or the Judge which could or would suggest or raise a child-specific risk.

50.In the present case, in relation to the return to India (which originally only related to the Father’s Claim), the Father had never raised the Mixed-Race Child Discrimination Risk (understandably)  as his application did not involve any of the Daughters. As mentioned above, all the Daughters’ Claims were made by the Mother against the return to Indonesia only.  In the circumstances, the Mixed-Race Child Discrimination Risk was raised only specifically as a risk that existed in Indonesia.  There is nothing in the materials which suggested there is a similar risk in India.

51.In relation to this, Mr Wong points out that the return to India as a family with the Daughters was only first raised by the Board at the hearings but not by the Father or the Mother.  As the Board acknowledged, the family’s case was always that they would return with the Daughters to Indonesia[21].  In the circumstances, it was not surprising that the Parents had not considered and put forward the same risk to the Board in relation to returning them to India as a family.

52.In the context of the unexpected way the refoulement of the Daughters to India was raised and that the applicants were not legally represented, and given the high standard of fairness and the joint endeavour nature of the inquiry required of the process, Mr Wong submits that the Board (in line with the Fabio principles)  ought to have by itself also considered the Mixed-Race Child Discrimination Risk in relation to India, as this risk was already raised by the Mother in the claims against the return to Indonesia.  In other words, it is Mr Wong’s submissions that, even in the context of refoulement to India, there already existed materials (ie, matter as raised in the Indonesia context)  that may support this potential minor-specific non-refoulement basis which had not, or had not properly, been advanced to the Board because of the absence of legal representation.

53.With respect, we are not persuaded by Mr Wong’s contentions.  As the court pointed out at the hearing, the “unexpected” factor emphasized by counsel is more apparent than real:

(1)  First, the Parents have not filed any affirmation to say that as they were taken by surprise at the hearing about the consideration of returning the family to India, they were unable to consider properly and advance the concern that there also existed the Mixed-Race Child Discrimination Risk in India.

(2)  Second, and in any event, as noted by the Judge, it is common ground that the Board had specifically made enquiries with the parents at the hearings whether they had any concerns if they were to return to India as a family (other than those risks that had already been raised by the Father in his non-refoulement claim).  In reply, the Parents only mentioned their worries about financial, language and cultural difficulties, and the absence of support from the Father’s family.  They had specifically not mentioned any concern that there existed the Mixed-Race Child Discrimination Risk in India.  See paragraph 72 of the Board’s 1^st Decision.

(3)  Similarly, at the hearing of the Youngest Daughter’s Claim, the Board specifically asked the Father to be also present to deal with his consideration of whether she could be returned to India as well.  Again, the Parents did not raise any specific concern that the Youngest Daughter would be subject to the Mixed-Race Child Discrimination Risk if she was to be returned to Mumbai or New Delhi with the Father as a family.  See: paragraphs 114 - 127 of the Board’s 2^nd Decision.  In this respect, it is pertinent to note that this hearing was held in May 2020, which is more than a year after the Parents had received the Board’s 1^st Decision (March 2019).  By then, the Parents were already fully aware of the Board’s earlier decision that it was safe for the Father and the Elder Daughters to be returned to Mumbai or New Delhi.  In other words, it could no longer be suggested that by the time the Youngest Daughter’s appeal was heard by the Board, they did not have sufficient time to properly consider bringing forward their concern about the existence of that risk in India, if there was indeed such a concern.

54.In the premises, the fact that the Parents had not specifically raised the existence of the Mixed-Race Child Discrimination Risk in India despite repeated inquiries from the Board and that they had had ample time and opportunities to consider the position, shows that there was never a concern of such risk.

55.For these reasons, it is plainly unarguable that, insofar as the Board is concerned, there existed any matter that may support the potential existence of the Mixed-Race Child Discrimination Risk in India, which had not, or had not properly been advanced to the Board because of the absence of legal representation.

56.We are therefore not satisfied that it could reasonably be argued that there was procedural unfairness for the Board not to have considered the Mixed-Race Child Discrimination Risk in finding that the Daughters could be returned to Mumbai or New Delhi with the Father and Mother.

57.In the circumstances, although we accept that it is reasonably arguable that the Board’s decision in finding that the Daughters could safely return to Jakarta in Indonesia is tainted with procedural unfairness in failing to or to properly consider the Mixed-Race Child Discrimination Risk under the Fabio principles, there is no arguable ground to challenge its decision in also finding that the Daughters could safely return to live in Mumbai or New Delhi with the Parents.

58.Finally, Mr Wong has also briefly argued that the Board had not properly applied the Fabio principles as it had not individually assessed the risk pertinent to each of the Daughters when concluding that they effectively would be able to find school in Jakarta.  When asked by the court what was this individual risk vis-à-vis each of the Daughters that he was referring to, counsel mentioned that the difficulties in finding a school to be encountered by say the Youngest Daughter might well be different from her elder sisters because of the difference in age.

59.There is plainly nothing in this.  There is absolutely no material or matter that was before the Board or the Judge which may show that there was such an age-specific risk or difficulty which was different for each of the Daughters whether in Indonesia or India.  The Parents by themselves had also never raised such specific concern before the Board or in their affirmations filed with the court.  This submission is entirely speculative and without any basis, and must be dismissed.

60.As the Board’s decision that the Daughters could return to Mumbai or New Delhi is valid, it would be academic to remit the part of the decision in relation to the return to Jakarta Indonesia to the Board for reconsideration.  Even if on reconsideration the Board decided in the Daughters’ favour in this respect, their non-refoulement claims would still fail as there is no applicable basis for them not to be refouled to India.

61.In the premises, albeit partly for different reasons, the Judge was correct and had not erred in law as contended in not granting leave to the Daughters to apply for judicial review challenging the Board’s Decisions.

62.We dismiss the Daughters’ appeal.

D3.2  The Parents’ appeal

63.There is no challenge against the Board’s Decisions to dismiss the Parents’ claims that the Parents have failed to establish or substantiate any of the applicable grounds in support of their non-refoulement claims by reason of internal relocation.  Despite this, Mr Wong has submitted that as the Board found it necessary and appropriate to consider the Parents’ claims and the Daughters’ Claims together “as a family”, the Board would have clearly allowed the Parents’ non-refoulement claims if the Board had (as it ought to have)  allowed the Daughters’ Claims in finding the Mixed-Race Child Discrimination Risk in relation to both Indonesia and India. This is also consistent with the “unity of family” principle.  In the premises, if the Daughters’ appeal is allowed, the Parents’ appeal should also be allowed.

64.As the Parents’ appeal is dependent upon the success of the Daughters’ appeal, which we have dismissed, the Parents’ appeal must therefore also fail on this basis alone.

65.In any event, even if (purely for the sake of arguments)  the Daughters’ appeal was allowed, we have serious doubt as to whether the Parents’ appeal should be allowed by reason of the following brief observations.

66.The Board’s jurisdiction and power is to determine on appeal (by way of rehearing)  whether the applicants have established any of the recognised specific applicable grounds in support of their non-refoulement claims.  If the applicants fail to establish any of these grounds, the claims must be dismissed.  Mr Wong has not cited any authorities to show that one of these recognised grounds is the so-called “unity of family” ground. Counsel has also fairly accepted that he was not aware of any such authority.

67.In the premises, in the present case, once the Board has decided against the Parents in holding that they had failed to establish any of the applicable grounds by reason of internal relocation, we have serious doubt as to whether it has any jurisdiction or basis to allow the Parents’ claims even if it were to allow the Daughters’ Claims by reason of an established child specific applicable risk.  In a case where the Daughters would have to remain in Hong Kong by reason of their successful non-refoulement claims, it would be up to the Parents to apply to the Director seeking permission to stay in Hong Kong with the Daughters on exceptional humanitarian and compassionate grounds.  It would then be for the Director to consider whether to exercise her discretion to grant the said permission to the Parents or one of them after taking into account all the relevant factors and circumstances relevant to that consideration.

68.However, given our dismissal of the Daughters’ appeal and that we have not heard full arguments, including any submissions from the Director, on this question, we do not find it necessary or appropriate for us to come to a conclusion on this issue in this appeal.

E.  DISPOSITION

69.For the above reasons, we dismiss the 1^st to 7^th applicants’ appeal.

70.As the Board and the Director did not participate in the present proceedings, we will make no order as to costs.  We further order that the applicants’ own costs be taxed in accordance with the Legal Aid Regulations (Cap 91A).

Albert N B Wong, assigned by the Director of Legal Aid, for the 1^st to 7^th applicants