ALSAIED LOTFE SOBEHY RODOAN ALAISELY AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 1674/2023

[2025] HKCFI 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1674 OF 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 the documents and oral submissions by counsel for the 4th Applicant and by the 1st to 3rd Applicants in person in open court;

(1)  Leave for the 1^st to 4^th Applicants to apply for Judicial Review be granted;

(2)  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

(3)  The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent;

(4)  Costs be in the cause; and

(5)  The 4^th Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 4 July 2023 refusing to allow the Applicants, a married couple and their 2 children, all nationals of Egypt, to make a subsequent claim for non-refoulement protection after their respective previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

The 1^st Applicant’s Previous Non-Refoulement Claims

2.  The 1^st Applicant (“A1”) now aged 32 who last arrival in Hong Kong on 5 December 2017 and raised a non-refoulement claim for protection on the basis if returned to Egypt that he would be harmed or killed by his friend’s family who blamed him for his friend’s death and who held high position in the Egyptian police force that A1 also feared of being targeted by the Egyptian authorities.

3.  By a Notice of Decision dated 22 January 2018 the Director rejected his claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.  In his decision the Director took into account of all the relevant circumstances of A1’s case and doubted the credibility of his claim of fear of harm as alleged that caused him to leave Egypt to come to Hong Kong to seek non-refoulement protection, that even if his such claim were true that the level of risk of harm from his friend’s family upon his return to Egypt is assessed as low due to the low intensity and frequency of past ill-treatment from them, that it arose from some private dispute between them only without any official involvement that state or police protection would be available to A1 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Egypt with a large population of 94 million people spread across a vast territory of more than 1 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Alexandria where it would be difficult if not impossible for anyone to locate him.

5.  A1’s appeal against the Director’s decision was dismissed by the Board on 8 May 2018 after hearing him in evidence and submissions and upon rejecting his claim as not credible or reliable, and that it also confirmed the Director’s decision.

6.  A1’s subsequent application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 11 May 2021 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 1056/2018 [2021] HKCFI 1343). A1 never sought any appeal against the Court’s decision.

2^nd – 4^th Applicants’ Previous Non-refoulement Claims

7.  Meanwhile the 2^nd Applicant (“A2”) now aged 37 arrived in Hong Kong on 2 March 2016 together with her 2 children, the 3^rd Applicant (“A3”) a son born on 19 July 2005 and now aged 19, and the 4^th Applicant (“A4”) a daughter born on 10 April 2012 and still a minor now aged 12, but when they were refused entry by the Immigration Department, A2 raised a non-refoulement claim for herself and her children on the basis that if they returned to Egypt they would be harmed or killed by the Egyptian Homeland Security who suspected her husband Koblan of being a member of the Sunni Islamist political group Muslim Brotherhood then banned by the Egyptian government as terrorists.

8.  By a decision dated 28 October 2016 the Director also rejected their claims under all the applicable grounds upon finding no substantial grounds for believing that there would be any real risk of them being harmed or killed by the Egyptian Homeland Security or the Egyptian authorities upon their return to Egypt due to the absence of reliable evidence that their perceived harm is real and foreseeable, nor was it accepted that the Egyptian authorities had intended to cause any harm to them, that state protection would be available upon their return to Egypt to negate any such risk as well as reasonable internal relocation for A2 to move safely with her children to other parts of the country away from her home district without any risk of them being located.

9.  Their subsequent appeal to the Board against the Director’s decision was also dismissed by the Board on 17 November 2017 upon finding serious and material inconsistencies deficiencies and vagueness in A1’s evidence that it was not accepted that the Egyptian authorities had any suspicion of her husband being involved with the Muslim Brotherhood or that she and her children would face any such risk upon their return to Egypt, while their subsequent application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge P Li on 27 April 2021, and similarly no appeal was ever sought by them against that decision either (HCAL 2982/2018 [2021] HKCFI 1109).

A2’s divorce with her husband and subsequent marriage to A1

10.  While her claim was being processed A2 in 2017 sought to divorce her husband Koblan who however refused and demanded that she returned to Egypt with their 2 children, but A2 instructed a lawyer in Egypt to proceed with the divorce who subsequently informed her that Koblan had been arrested together with some gangsters by the police in Egypt for drugs trafficking and other criminal activities, and that Koblan had become furious about her decision, but her lawyer nevertheless proceeded to obtain the divorce for A2 from the Egyptian authorities.

11.  In early 2018 A2 met A1 in Hong Kong, and on 24 June 2018 they married each other by a religious ceremony in a local mosque, and on 19 December 2018 they registered their marriage at the Marriage Registry.

12.  After their marriage A1 and A2 have been living together with A2’s children as a family, and on 5 April 2019 A2 also gave birth to their daughter Alaisely, Sama (“Sama”) in Hong Kong and for whom she later also raised a separate non-refoulement claim after Koblan had made telephone calls and messages to A2 threatening to kill her as well as A1 and Sama (who is not an applicant in these proceedings and her present appeal to the Board is not directly relevant to this application), that Koblan had also filed criminal complaints to the Egyptian authorities against A2 for divorcing him without his consent and hence by marrying A1 in Hong Kong would amount to adultery and punishable by imprisonment in Egypt, and that he would take A3 and A4 away from her by seeking their custody from the court in Egypt.

Request To Make Subsequent Claim

13.  On 11 January 2023 A1 in writing to the Immigration Department requested to make a subsequent claim, while A2 for herself and A3 and A4 also followed suit on 31 January 2023, jointly on the bases that if refouled to Egypt A1 and A2 would be harmed or killed by Koblan in revenge and/or by the Egyptian authorities for the criminal offence of adultery whereupon A3 and A4 would face the risk of being deprived of the care and custody of their mother if A2 is to be killed or imprisoned as a result and that they would be placed in Koblan’s custody against their wish and/or that they would risk being deprived of the medical attentions/treatments that they have been receiving in Hong Kong for their various medical issues but which may be lacking or insufficient or too expansive for them in Egypt.

14.  There are however constraints on a claimant or claimants who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

15.  Accordingly, the Director required the Applicants to provide further information and evidence in writing in support of their requests within 14 days, which they subsequently did via their lawyer from Duty Lawyer Service (“DLS”) and summarized as follows ([14] - [18], and [20] of the Director’s Decision):

(1)  That A1 still fears of being harmed or killed by those enemies of his previous claim if refouled to Egypt as they are still looking for him everywhere that the option of internal relocation to other parts of the country will not help him as state authorities are involved;

(2)  That both A1 and A2 also fear of being harmed or killed by Koblan for having married in Hong Kong against the wish of Koblan and for A2 to divorce him without his consent;

(3)  That both A1 and A2 also fear of being arrested, tortured and prosecuted by the Egyptian authorities as a result of Koblan’s criminal complaints made against them for marrying in Hong Kong before A2 has validly divorced Koblan in Egypt according to the Egyptian law or the Islamic Sharia law;

(4)  That both A1 and A2 also fear that in the event of their being convicted of Koblan’s criminal complaints and are imprisoned that A3 and A4 would be deprived of their care and instead they would be placed in Koblan’s custody against the children’s wishes;

(5)  That A3 in 2021 was admitted to the hospital in Hong Kong for cardiac arrest followed by multiple-organ dysfunctions and other illnesses that currently he still suffers from various medical issues and requires regular medical attentions and rehabilitation which he may not receive adequately or at all or too expensive to afford in Egypt;

(6)  That A4 has been diagnosed of global developmental delay and autism spectrum disorder (“ASD”) and needs continued medical treatment and constant care that she may not get adequately or at all or too expensive to afford in Egypt;

(7)  That given some of the risks that they face involve the state authorities that the options of state protection or internal relocation in Egypt would not be available to the Applicants upon their refoulement.

16.  In support of their request the Applicants also produced and submitted the following documents and COI ([19], [21], and [23] – [24] of the Decision):

(1)  Copy of the divorce certificate dated 28 May 2018 between A2 and Koblan obtained in Egypt;

(2)  Records of telephone conversations in Arabic with English translation;

(3)  Copy of Koblan’s criminal history in Arabic with English translation;

(4)  Copy of Koblan’s criminal complaints against A1 and A2 in Arabic with English translation;

(5)  Copy of 2 letters from A2’s lawyers from Egypt in Arabic with English translation;

(6)  Copy medical reports/notes on A3;

(7)  Copy medical reports/notes on A4;

(8)  Copy of a Facebook post in Arabic with English translation;

(9)  Copy of a news article dated 16 November 2021 in Arabic with English translation;

(10)  Copy of the Egyptian Penal Code in English;

(11)  Copy of medical appointment slip of A2’s 2^nd daughter Sama;

(12)  Copy transcript of a video containing commentary in Arabic with English translation;

(13)  Copy court documents in relation to the divorce between A2 and Koblan dated 13 September 2018 in Arabic with English translation;

(14)  Copy medical appointment slips/letters of A3 and A4 as well as Sama.

Director’s Decision refusing the Applicants’ Request to make a Subsequent Claim

17.  By a Notice of Decision dated 4 July 2023 the Director refused to allow the Applicants to make a subsequent claim as it was not accepted that there has been a significant change of circumstances since their previous claims were finally determined, or that such change, if any, when taken together with the material previously submitted in support of their previous claims would give their subsequent claim any realistic prospect of success, upon the basis of the following findings and considerations ([26] – [41] of Decision):

(a)  that in the absence of any evidence that Koblan was a state actor or that there was any official involvement in the risk of his alleged threats that state protection and internal relocation would be available to the Applicants to negate any such risk even if real;

(b)  that it is not accepted on the basis of relevant COI that A2’s divorce from Koblan is not legal or not recognized by the law in Egypt or that A1 and A2 would not be entitled to legal representation to properly defend any charge of adultery which may be brought by Koblan or the authorities against them in Egypt;

(c)  that even if for whatever reason that A1 and A2 may be detained or imprisoned by the Egyptian authorities as a result of Koblan’s complaints that they would still be able to seek assistance from their respective parents or families to assist in looking after A3 and A4 as well as supports and assistances from various governmental departments and relevant NGOs;

(d)  that there is no sufficient or objective evidence to support their claimed fear of Koblan being able to obtain custody of A3 and A4 as just mere speculation, and that relevant COI show that Egyptian family law would give paramount importance to the protection of the best interests of children in custody cases that there is nothing to indicate that A3 or A4 would face such risk upon their return to Egypt;

(e)  that those medical evidence supplied by A1 and A2 in support of their claimed fear of difficulties in A3 and A4 accessing or obtaining the necessary health care services that they may need do not indicate that their health conditions would deteriorate upon their return to Egypt or that they would not be able to receive equivalent medical care that they have been receiving in Hong Kong that such fear is considered as mere vague and unfounded speculations;

(f)  that A1’s claimed of continued threats from the Homeland Security upon his return to Egypt had already been finally determined in his precious claim as not credible and would not amount to any significant change of circumstances that would warrant him or his family making a subsequent claim.

Application for Leave to Apply for Judicial Review of Director’s Decision

18.  On 18 September 2023 the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of this decision of the Director, and put forward the following grounds as amended for their intended challenge:

(1)  Error of law/irrationality in failing to conduct child specific assessment of A4’s claim;

(2)  Irrationality/failure to give adequate reasons and/or inadequate/improper assessment of relevant COI;

(3)  Procedural unfairness in failing to give notice of or opportunity to the Applicants to comment on potential adverse findings on COI.

19.  Upon A4’s subsequently being granted Legal Aid with legal representation for her application, Ms Denise Souza of assigned Counsel appeared for her at the hearing and with a written submission dated 18 November 2024, which was also adopted by A1, A2 and A3, all appeared in person, where appropriate or applicable for their own cases.

20.  Before proceeding with those proposed grounds for A4, Ms Souza submits as a matter of general principle that, and I agree, save for those procedural requirements under Sections 37ZO of the Immigration Ordinance as noted above which are necessary to prevent abuses by claimants seeking to avoid or delay the removal process after the rejection of their previous claims, high standards of fairness should also be applied by the Director in his consideration of their requests to make a subsequent claim, and that the court should similarly review the Director’s refusal of such a request with the usual standards of rigorous examination and anxious scrutiny.

21.  Furthermore, given that A4, and for that matter as was A3 at the time of the request, is a minor and hence in the consideration of the proposed or intended subsequent claim, it would be necessary for the Director to adopt the proper approach to the assessment of non-refoulement claims of children as set out by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and Re Jasvir Singh & Ors [2021] HKCA 53, in that even if the children’s claims were based on the same set of primary facts are separate from those advanced by their parents and need to be considered with regard to the personal circumstances specific to the children, and that ill-treatment which does not reach a level of persecution in the case of an adult may do so in the case of a child, which is in fact the complaint raised by A4 under the first proposed ground as stated above, and of which I now proceed to consider.

Ground (1) Error of law/irrationality in failing to conduct child specific assessment of A4’s claim

22.  Ms Souza submits that given that these child-specific risks now claimed for A4, and for that matter A3 who was also a minor in his previous claim, had never been relied on or considered in their previous claims, and that the events and supporting evidence underlying these claims also all post-dated the decisions of the Director and the Board of their previous claims respectively in 2016 and 2017, their proposed subsequent claims therefore warranted independent examination in line with a child-sensitive approach, of which the immigration officer did acknowledge in the Decision but proceeded to make what appear to be just superficial assessments based on assumptions without any serious consideration or evidential basis as follows:

“32. Moreover, having borne in mind that ill-treatment not regarded as sufficiently serious for an adult may be enough to qualify as relevant hard in the case of a child, the personal situations of the Son and Daughter are given separate and specific considerations. In case that the Mother and Father are for any reason detained or imprisoned, it is considered that the Mother and Father can still seek assistance from their parents to look after the Son and Daughter. Besides, there are also various organizations which could offer assistance. For example, the National Council for Childhood and Motherhood is a government human rights body that strives to protect and promote the rights of all Egyptian children and ensure that they are raised in safe and caring environments. “Save the Children” is a non-governmental organization that develops programs targeting poor and marginalized children, children at risk, children with disabilities and children on the move. Resources are considered available to help children in need in Egypt.

33. The Mother alleges that under Egyptian law, Koblan can obtain custody over their children since she has married another man. However, there is also no sufficient and objective evidence supporting this speculation. Indeed, according to the article “Custody and the Best Interests of the Child in Egyptian Courts” from HAL Open Science, “Recent legislative reforms in Egyptian family law have given paramount importance to the protection of the ‘best interests of the child’ in custody cases … The court then invoked several international conventions ratified by Egypt. It referred to the Convention on the Rights of the Child and in particular to Article 3, according to which in all actions concerning children, the best interests of the child shall be a primary consideration; to Article 9, by which states undertake to respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests; and to Article 18, by which states shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child”. It shows that a custody decision is made based on the specific circumstances of the case and the best interests of the children. There is no sufficient information in the Family’s Request indicating a likelihood that the Son and Daughter will fall into the hands of Koblan as the Mother alleged, especially when considering that Koblan was being detained/imprisoned at the time of making the allegations to the court, has long criminal records, and has threatened to kill the Family according to the adduced evidence in the Family’s Request. In any case, it is the decision of the court in Egypt to determine the custody based on the primary consideration of the best interests of the children. There is nothing indicating a risk facing the Son and Daughter upon return to Egypt.”

23.  Ms Souza submits that the Director made these findings that the parents or family of either A1 or A2 would be able to assist in the care of A3 and A4 in the event of their detention or imprisonment without any proper assessment as to the current family situations of either A1 or A2 or whether their family members would be available or able to do so, and without regard to the children’s personal circumstances, including the fact that they are both with various medical issues including physical/developmental disabilities, and without allowing either A1 or A2 any opportunity to comment or respond as to the viability of support from family and/or human rights bodies or NGOs.

24.  As submitted by Ms Souza, neither the Director nor the Board had in the previous claims considered any child-specific issues relating to A3 or A4, and that there was never any relevant information as to the parents or family members of either A1 or A2 in Egypt other than a brief introduction that A1 was born in Beheria, Egypt where his mother was deceased and with only his father and elder brother then still living there (as per Director’s decision dated 22 January 2018), while A2 was born in Cairo and that she had been in contact only with her mother in Egypt (Director’s decision of 28 October 2016), henceforth some 6 years later in 2024 in the Applicants’ request to make a subsequent claim, there was simply no information or evidential basis for the Director to find that in the event that A1 and A2 are detained or imprisoned that they can seek assistance from their parents or families in Egypt to look after their children, not to mention whether such persons would still be available, willing or able to do so, nor as submitted by Ms Souza had A1 or A2 been invited or given any opportunity to respond or comment on such findings or assessments of the Director.

25.  Ms Souza submits that the Director also failed to properly and/or sufficiently consider and assess A2’s claimed fear and concerns over the legal repercussions as to A4’s custody due to Koblan’s complaints against her remarriage/adultery to the Egyptian authorities by simply relying on just one singular source of COI i.e. the article “Custody and the Best Interests of the Child in Egyptian Courts” from HAL Open Science (Bundle of Authorities/A15) to state that A4’s custody decision will be made on the basis of the child’s best interests, and without raising it with A2 or her lawyer for their comment or response and/or without due regard to those documents and COI produced by her lawyer and relied on by her in support of her request.

26.  Ms Souza further submits that given the various medical issues of A3 and A4 and their follow-up requirements as supported by medical evidence that it was wholly inadequate and inappropriate for the Director to simply dismiss such concerns on the basis that “there is no information showing that the health condition of [the Children] will deteriorate for the reasons of not receiving equivalent medical care as they do in Hong Kong, returning Egypt or relocating elsewhere in Egypt when necessary” as vague and unfounded speculations (see [37] of Decision).

27.  On the basis of these submissions, and given such findings by the Director in the circumstances of the Applicants, I agree Ground (1) is reasonably arguable in that the Director failed to conduct child-specific assessments on either A3 or A4 so as to properly identify that those matters referred to above would amount to a significant change of circumstances since their previous claims were finally determined or that such change when taken together with the previous materials would give their subsequent claims a realistic prospect of success, and which should be more properly and adequately screened through the 2-tiers process under the USM.

Grounds (2) & (3) Irrationality/Failure to Give Adequate Reasons & Inadequately/Improper Assessment of COI

28.  These 2 grounds can be conveniently considered together, and as noted above Ms Souza submits that the Director relied on just one article from HAL Open Science to conclude that there is no risk that Koblan will obtain custody of A4 because the Egyptian courts will make custody decisions based on the best interests of the child, and in doing so, Ms Souza submits, that the Director had quoted selectively from the article to draw a positive and unqualified conclusion as to how the ‘best interests of the child’ assessments are in practice made, but omitted relevant passages in the article that support A2’s expressed fear that Koblan would be able to obtain A4’s custody, as in reality judges rarely implement such principle in their decisions at p.28:

“The law assigns significant powers to judges in determining the best interests of the child, and invites them to determine such an interest on a case-by-case basis by prioritizing different conflicting interests. In practice, however, judges rarely look for the child’s interest in the factual circumstances of the case submitted to them, and systematically assume that it is in their best interest to stay with their mother during their younger years, followed by their father in their later years.”

29.  And that at p.24 the article also stated:

“If the mother, as a custodian, is entrusted with the day-to-day care of the children, the father is assigned guardianship (walāya) over the person and the property of the child. He is responsible for managing the child’s property until he/she comes of age and for making the most important decisions regarding him/her…”

30.  Furthermore, and more importantly, Ms Souza submits that there are passages in the article which support the views expressed by A2 and her lawyer that she may be deprived of A4’s custody because she has re-married, at p.25:

“The main case in which divorced mother is deprived of custody is when she remarries with a ‘stranger’ to the child from the point of view of the child’s kinship. Although no law currently in force in Egypt provides for the forfeiture of the mother’s right to custody in the event of remarriage to a man who is not a relative of the child within the prohibited degree, court records show that forfeiture is often pronounced by judges in application of the prevailing opinion within the Hanafi school. This is in accordance with Article 3 of the preliminary provisions to the promulgation of law No. 1 of 2000 that provides that if the law is silent on a certain matter, the judge shall apply the prevailing opinion in the Hanafi school.”

31.  Ms Souza submits that the Director had quoted selectively from and cherry-picked only those COI that were positive and unqualified comments which was unjustified in view of the strength of adverse comments from other COI reports and was therefore Wednesbury unreasonable and/or amounts to a failure to give adequate reasons for his conclusion, and which were warned against by McWalters J (as he then was) in AM v Director of Immigration & Anor [2014] 1 HKC 416, in which the assessor was criticized of cherry-picking the COI favourable to the Pakistan Government on the issue of State acquiescence in sectarian violence but ignored the materials in them which suggested a breakdown in law and order which pointed to significant difficulties being experienced by the government in controlling sectarian violence, and for failing to adequately explain in his reasoning despite there being before him such adverse information that he was able to reach the conclusions that were favourable to the Pakistan Government, of which His Lordship elaborated in the judgment as follows:

“106. I do not see how such positive and unqualified comments can be justified in view of the number and strength of the adverse comments from the reports that I have quoted. I do not suggest that those adverse comments are necessarily determinative of the matter but the point is they are there and cannot simply be ignored as appears to have been done by the Assessor. In my view the unqualified findings, and I emphasise the word ‘unqualified’, by the Assessor are not supported by the material to which he had access and are therefore Wednesbury unreasonable.

107. Furthermore, any set of reasons which purports to make findings relevant to a conclusion on a core part of a claimant’s claim, and here that was the issue of State acquiescence, would have to address comments of the kind found in these reports so that a claimant could understand why, notwithstanding the existence of such comments, his claim ultimately failed. Thus, the issue is not just one of Wednesbury unreasonableness but also one of adequacy of reasons provided by the decision-maker.”

32.  As such, I agree that Grounds (2) & (3) are also reasonably arguable that the Director failed to adequately assess the relevant and up-to-date COI in line with the requirement of high standards of fairness, and/or to adequately give reasons for his determination of the various issues raised by the Applicants so that they could understand why, notwithstanding the change of circumstances since the determination of their previous claim that they would not give their subsequent claim a realistic prospect of success even if screened under the USM for non-refoulement reasons.

Disposition

33.  While Ms Souza’s submissions were obviously made for A4 only, given the scope thereof clearly also apply to A3 who was still a minor at the time when the request was made to the Director, and with A1 and A2 being their parents or de facto custodians, I am of the view that leave should be granted to all the Applicants as a family to apply for judicial review of the Director’s decision based on the proposed grounds, and accordingly direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent, with costs in the cause and that A4’s own costs to be taxed on Legal Aid Regulations.

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