SRI WAHYUNI BINTI NARNO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2543/2019

[2026] HKCFI 1827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2543 OF 2019

  Application for Leave to Apply for Judicial Review

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

Following:

(1)   Extension of time for the Applicants’ application for leave to apply for Judicial Review be granted;

(2)   Leave for Applicants to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 November 2018 be granted;

(3)   The 2^nd and 3^rd Applicants be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

(4)   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); and

(5)   The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 45-year-old national of Indonesia who arrived in Hong Kong on 6 September 2004 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 5 January 2008, she did not depart and instead overstayed, and was arrested by police on 20 January 2010.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her mother’s creditor over her mother’s debts, and upon subsequently giving birth to a daughter, the 2^nd Applicant (“A2”) on 20 January 2011 from her relationship with a Muslim man in Hong Kong, she also raised a torture claim for her daughter to be jointly assessed with hers, and after their torture claims were rejected, she then sought non-refoulement protection for both of them on the same basis, and later upon giving birth to a son, the 3^rd Applicant (“A3”) on 10 October 2017 from her relationship with the same Muslim man, she also raised a non-refoulement claim for her son on the same basis as hers.

2.  A1 was born and raised in Karanganyar, Central Java, Indonesia where her father was a farmer who passed away when she was 10 years old, and thereafter she and her siblings were supported by her mother working in various odd jobs, and after leaving school A1 in 2004 came to Hong Kong to work as a foreign domestic helper to help support the family.

3.  While working in Hong Kong A1 learnt that her mother had set up a stationary shop in her home village to support the family by pledging their family home to a local bank for a loan repayable by monthly instalments with interests with the help of the monthly remittances from A1 in Hong Kong.

4.  However, after her last employment was terminated on 5 January 2008, A1 was no longer able to remit any money to her mother in Indonesia to help with her mother’s loan repayment, and for which her mother had had to resort to borrowing money from other people to repay the bank to avoid losing their home, but when her mother subsequently was unable to repay her other debts, one of her creditors a Mr Agus who was said to be a money-lender or loan shark then made threats to her mother and then A1 on the phone over the outstanding debts, and so A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she met and married the father of her 2 children by undergoing some form of Islamic ceremony in Hong Kong but with whom she no longer has any further contact after the birth of their second child, and whereupon A1 raised her non-refoulement claims for protection for herself and her 2 children, for which she completed a Supplementary Claim Form (“SCF”) for herself and A2, and a Non-refoulement Claim Form (“NCF”) for A3 on 19 January 2018, and attended a joint screening interview before the Immigration Department with legal representation for all 3 of them from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 23 February 2018 the Director of Immigration (“Director”) rejected the claims of A1 and A2 on all the remaining applicable grounds other than torture risk and the claim of A3 on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the claims of all 3 Applicants and assessed the level of risk of harm from Mr Agus the creditor of A1’s mother upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Mr Agus to seriously harm or kill any of them, that in any event it was a private monetary dispute between A1’s mother and Mr Agus only without any official involvement that state or police protection would be available to the Applicants if resorted to as well as support and assistance from various governmental departments and NGOs for single mother and illegitimate children, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with her 2 children to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for Mr Agus to locate any of them.

7.  On 8 March 2018 the Applicants lodged their appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 13 August 2018 before the Board without legal representation, and during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 14 November 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board found material vagueness and inconsistencies in A1’s evidence regarding basic details about her mother’s alleged borrowing from some loan shark named Mr Agus and her lack of knowledge of essentially any details regarding the loan or of her mother’s loan borrowed from the bank or her mother’s business, which is essentially the basis of her claim for protection that it was not satisfied that her mother did in fact borrow any money from any person by the name of Mr Agus that it rejected the credibility of her claim of fear of harm from him or any person over any unpaid debts of her mother, and that if indeed her mother did in fact borrow a large sum of money from Mr Agus without repayments that it is implausible that she still remained unharmed all these years that it is not accepted that A1 or her children would face any risk of harm from Mr Agus or for that matter any creditor of her mother upon their return to Indonesia, and that relevant COI show that A1’s religious marriage to the father of A2 and A3 would be recognized by the Indonesian authorities that it is not accepted that they would face any real chance of discrimination or persecution either even if they were labelled as illegitimate children or that such discrimination or social stigma would amount to any of the prescribed harms, or that A1 being a single mother would be subjected to any real harm which would amount to any of the prescribed form of harms that their claims for non-refoulement protection failed on all applicable grounds.

9.  On 2 September 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in her second affirmation of 21 January 2025 A1 puts forward the following grounds for their intended challenge:

(1)   That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing their appeal on the grounds that they did not satisfy the requirements;

(2)   That the Adjudicator acted in a procedurally unfairness in dealing with their appeal;

(3)   That the Board’s decisions to refuse their appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)   That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   That the Board’s discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposal of those cases is unacceptable and detrimental to the spirit of the judicial system.    

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

11.  As the last day of the three-month period for them to file their Form 86 fell on 14 February 2019, the Applicants were therefore more than 6 months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicants’ case, a delay of more than 6 months must be considered as very substantial and inordinate, for which they did not provide any explanation or reasons in their Form or affirmation, and at the hearing A1 confessed that she had simply forgotten about the deadline for the filing of their application which is of course not any good or valid reason for their such serious delay.

13.  As for the merits, if any, of their intended application, those grounds put forward by the Applicants are mostly just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational.  As such, I do not find them reasonably arguable for their intended challenge.

14.  That is, with the exception of the complaint that the Board’s decision in refusing the appeal as unreasonable or irrational, which is similarly without any relevant or necessary details, but given the seriousness of the issue at hand and the gravity of the consequences of the Board’s dismissal of the Applicants’ appeal essentially on the basis that A1’s evidence were found not credible, high standards of fairness require that such bases or reasons be scrutinized by the Court for any error of law or irrationality or procedural unfairness in its credibility assessment, and that A2 and A3 being minors at their present respective age of 15 and 8 years were without legal representation in their appeal before the Board, or for that matter in their present leave application as required under Order 80 rule 2 of the Rules of the High Court, Cap 4A, hence it would also be necessary to examine whether their non-refoulement claims had been separately considered and determined by the Board, and to see whether there are underlying matters that may support their potential minor-specific non-refoulement bases but which might not have been advanced to the Board due to lack of legal representation for them in their appeals before the Board, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal situations, and that 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.

15.  In its assessment of the credibility of A1’s claim, the Board disbelieved her evidence that her mother had borrowed money from some loan shark known as Mr Agus that led to her fear of being harmed by him upon her return to Indonesia over her mother’s failure to repay the loan essentially due to “the extreme vagueness and inconsistencies in her evidence regarding basic details” about the alleged loan, such as the vagueness or inconsistencies over the exact amount that her mother had borrowed from Mr Agus, or whether Mr Agus is a loan shark or not, or how much money she had remitted per month to her mother for the repayment of the loan, or how often did she contact her family in Indonesia, as the Board so found and stated in its decision:

“50. The Board does not accept the first named Appellant’s mother borrowed money from a loan shark named Mr Agus in light of the extreme vagueness and inconsistencies in her evidence regarding basis details about this alleged loan. When asked in the hearing why her mother borrowed money from Mr Agus, the first named Appellant stated that she did not know the detail but subsequently claimed it was to open a store or small business. However, according to her written statement, the first named Appellant had explained how her mother had in fact borrowed 100 million rupiah from a bank to start a stationary shop and had used her house as collateral so when her business closed after five months and her mother was unable to repay the bank and she had also lost her job in Hong Kong and could not send her mother money, her mother borrowed money from other people, including Mr Agus, to pay the bank. The Board finds the first named Appellant’s evidence regarding the reason for her mother borrowing money from Mr Agus significantly different. It also finds it implausible that she would not recall that her mother had borrowed this money allegedly to prevent the family home from being confiscated by the bank, as opposed to starting a business.

51. The Board also finds the first named Appellant’s lack of knowledge of essentially any details regarding this loan to be concerning, particularly in light of the fact she claimed to be solely responsible for repaying this alleged debt. She did not know when her mother borrowed this money despite the fact she also claimed in the hearing she was guarantor for this loan and had allegedly been sending her mother money to assist in making repayments. Although the first named Appellant claimed it was a long time ago and she has forgotten, the Board finds this explanation unconvincing. The first named Appellant claimed in the hearing that her mother had borrowed 100 million rupiah from Mr Agus, however, her previous evidence was that her mother had borrowed that particular amount from the bank and she only knew her mother had borrowed a huge amount from Mr Agus. The first named Appellant did not know anything about the terms of this alleged loan including what interest her mother was being charged or when the loan was to be repaid in full. Given the first named Appellant’s evidence was that she was ultimately responsible for repaying this debt, it does not find it unreasonable to expect her to at least know how much she was required to pay Mr Agus once she returned to Indonesia and it finds it utterly implausible that neither the first named Appellant’s mother or particularly Mr Agus would have provided this fairly significant detail, as the first named Appellant asserted. Similarly, it does not consider it unreasonable to expect the first named Appellant to recall when she spoke to Mr Agus the one and only time according to her evidence in the hearing and he told her she had to repay the loan, whether it was in a lump sum or in instalments as she claimed. In light of the fact the first named Appellant demonstrated very little knowledge about this alleged loan, which is essentially the basis of her claims for protection, the Board is not satisfied that her mother in fact borrowed any money from a person named Mr Agus ( or anyone else for that matter).

52. The first named Appellant’s evidence in respect of most aspects of her claims was ambiguous and inconsistent. In respect of Mr Agus himself, the Board notes the first named Appellant described him as a loan shark but also neither a loan shark or a finance lending company. While the first named Appellant responded that this happened a long time ago so she does not remember, the Board does not consider it unreasonable that the first named Appellant would be able to recall consistently if her mother borrowed this large amount of money from a person who is a loan shark or not, particularly as this is the person she fears will harm her if returned to Indonesia.

53. In regard to the financial support she allegedly provided her mother while in Hong Kong, the first named Appellant initially claimed she had never sent her mother any money to pay Mr Agus but later stated that she had remitted money to her mother while she was working. Her evidence in the hearing was that she had only ever sent her mother an amount of $1000 HK each month for this loan, from August 2005, once she started receiving her salary. However, in the interview with the Immigration officer, the first named Appellant had claimed that from around 2005, after her salary deduction was completed, she had remitted sometimes $2000 HK or $2500 during the first two years she was in Hong Kong and after learning about her mother’s loan in around 2007, she remitted only $1000 HK each month. When asked to explain the difference in her evidence, the first named Appellant explained that she only received “$3000 something” so she sent $1000 to her mother and used the rest for her needs. The Board took the Appellant to the section in the record of interview where the money she remitted to her mother was discussed. The first named Appellant responded she was confused but provided no explanation for the discrepancy in her evidence. It also notes the interview record was read to the first named Appellant and while she made several corrections she did not make any modifications to this particular information.

54. Further, the first named Appellant’s evidence regarding her contact with her family was significantly different.  She was asked at the beginning of the hearing when she last had contact with her family and she indicated she could not remember but it was years ago.  However, in her statement attached to her SCF dated 19 January 2018, the first named Appellant specifically claimed that her mother calls her once a week.  While the first named Appellant responded that she was confused and had forgot, the Board does not accept that the first named Appellant would not be able to recall if she had contact with her mother on a regular basis since or at least at the beginning of this year, or if it had been many years ago that she last spoke to her.”

16.  In addition to such so-called discrepancies in A1’s evidence, the Board also found it unbelievable that her mother had only received threats from Mr Agus despite owing him such large sum of money all these years but that Mr Agus would not have acted to recover the money just because he had been told by her mother that A1 would repay him whenever she returned to Indonesia (see [55] of the Decision).

17.  The Board then went on to conclude that A1 was not a witness of truth and that her claims regarding the money her mother borrowed from Mr Agus were not credible in para 56:

“In light of the difficulties in the first named Appellant’s evidence as outlined above, the Board finds the first named Appellant is not a witness of truth and that her claims regarding the money her mother borrowed from Mr Agus are not credible. As such, the Board does not accept the first named Appellant’s mother was threatened when she was unable to repay the loan or that her mother made the first named Appellant guarantor for this loan, thereby making her responsible for repaying this money. It does not accept the first named Appellant had any contact with Mr Agus during which he told her she had to repay the money either in instalments or in full or that he threatened to kill her and her mother, as she claimed in her written statement but did not repeat in the hearing. Given the Board does not accept the first named Appellant’s claim regarding the loan taken by her mother is credible, the Board does not accept the first named, second named or third named Appellants face any problems or harm from Mr Agus or anyone associated with him, if returned to Indonesia.”

18.  It is however clearly the case of A1 that everything about her mother’s loan from the bank for her business and her subsequent borrowing from Mr Agus occurred in Indonesia when she was then already working in Hong Kong, and hence all these were told to her by her mother on the phone years ago before A1 was to appear before the Board for her appeal, and as she could only provide to the Board whatever information that she had been told by her mother, and given the earlier findings by the Director in his decision from relevant COI that corroborated her claim as threats posed by debt collectors were common in Indonesia (see [48] of Director’s decision), it seems to me reasonably arguable that the Board’s reasons or bases for rejecting the credibility of A1’s claim of threats from her mother’s creditor based on vagueness and lack of details of her mother’s dealings in Indonesia while she was away in Hong Kong were in the circumstances irrational or Wednesbury unreasonable, and that the Board should have considered whether to give A1 the benefit of the doubt that her account of her mother’s loan and threats from Mr Agus could be or were plausible, and proceeded to determine whether state protection and/or internal relocation would be available to her upon her return to Indonesia to negate such risk, as the Director did in his decision but somehow the Board failed to do.

19.  The principles and methods for establishing and assessing a non-refoulement claim are well established.  While the burden of proof lies on an applicant to establish his claim, it is for the decision-maker charged with determining his status to assess the validity of the evidence and the credibility of the applicant, and in doing so, all of the evidence both oral and documentary must be considered and assessed, and not just selected portions of the evidence which must all be considered together, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants, as stated by the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued in December 2011, and that rejection of some of the evidence, or even all of the claimant’s testimony, does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: See [196] – [204] of the Handbook.

20.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general COI and/or the claimant’s own evidence about what happened to him or her, as provided by the UK Home Office in its guidelines set out in Asylum Policy Instruction: Assessing Credibility and Refugee Status, version 9.0, 6 January 2015 at Section 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

21.  In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behavior and responses on the part of the claimant which run counter to what would be expected, as observed by Keene LJ at para 25:

“There seems to me to be very little dispute between the parties in the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes…”

22.  In ST v Betty Kwan [2014] 4 HKC 419, the Court of Appeal identified such dangers of adopting personal assumptions, conjecture or speculations in assessing a protection claim when its screening process is held not to be an adversarial one but rather in the nature of a joint endeavor, as Cheung CJHC (as he then was) in giving judgment of the Court explained at para 43:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

23.  Furthermore, given the considerable difficulties that applicants normally face in gathering evidence to support their claims, the principle of the benefit of the doubt should often be applied in appropriate cases, as stipulated by the UNHCR Handbook referred to above, which recognizes that notwithstanding the efforts of an applicant, and indeed also of the determining authority, to gather evidence pertaining to the material facts asserted by the applicant, there may still be some doubt regarding some of the facts, in which case the need for the principle is reinforced by recognition of the fact that an applicant’s life and/or integrity may be put at grave risk if non-refoulement protection is wrongfully declined, as it was emphasized by the European Court of Human Rights in RC v Sweden, No. 41827/07 (Judgment), ECtHR, 9 March 2020 at para 50:

“The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof.”

24.  The application of the principle of the benefit of the doubt therefore allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance “Asylum Instructions, Considering Asylum Claims and Assessing Credibility”, February 2012 at para 4.3.4:

“[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision-maker must come to a clear finding as to whether the fact can be accepted or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

25.  As it is also pointed out in UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum System’, May 2013, at p 50:

“If, following such assessment, there is nevertheless an element of doubt in the mind of the decision-maker as regard the credibility of some asserted relevant facts, and there is no other evidence to support that fact, the decision-maker should consider whether it is appropriate, in all the circumstances, to apply the principle of the benefit of the doubt. The application of the principle of the benefit of the doubt, as explained in the UNHCR Handbook, allows the decision-maker to accept an assessed material fact as credible even though there may be no evidence other than the applicant’s statements to support the fact, and thereby reach a clear and unambiguous conclusion regarding the asserted facts of the application.”

26.  In the present case of A1, as noted above that while the information provided by her as told by her mother as regard her mother’s loans from the bank and Mr Agus in Indonesia may well appear insufficient and unsatisfactory to the Board, but given the circumstances that all of these were said to have been undertaken by her mother years ago in Indonesia when A1 was all along in Hong Kong, and coupled with the relevant COI as found by the Director and available before the Board, it seems to me reasonably arguable that the Board had erred in law in its assessment of A1’s credibility and/or failed to consider applying the principle of the benefit of the doubt in its determination of A1’s claim.

27.  As regard the claims of A2 and A3, while the Board did separately and specifically take into consideration of any risk that they may encounter as children born out of wedlock upon their return to Indonesia with A1 as a single mother in its decision and with reference to relevant COI (see [57] – [60] of Decision), but it seems to me that the Board had however failed to take account of any racial issues that they may face as children born out of racially mixed parentage of an Indonesian mother and a Tanzanian father, of whom the Board did not appear to have sought any information from A1 during the hearing or referred to in its decision, but whose identity and nationality were clearly revealed in the SCF and NCF respectively of A2 and A3 and available in the appeal hearing bundle before the Board (pages 165 and 193 of the Appeal Bundle), and thus high standards of fairness would require the Board to do so, in particularly as regard children without legal representation in their appeal before the Board, as in the case of A2 and A3, when decision-makers are required to consider their claims in a manner consistent with the propositions set out in Fabio Arlyn Timogan, supra, at [34] – [35], [47] – [54], and in Re Jasvir Singh [2021] HKCA 53 at [30] – [33].

28.  In the premises, and for all these reasons, I am of the view that the intended application of all 3 Applicants are reasonably arguable on the grounds stated above that the Board (1) erred in law in its assessment and determination of the credibility of A1’s claim and/or that its decision in rejecting her credibility is irrational or Wednesbury unreasonable; and (2) failed to consider properly or at all the claims of A2 and A3 as minor children without legal representation for matters that may support their minor-specific non-refoulement bases including as racially mixed children born to Indonesian mother and Tanzanian father, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

29.  Accordingly I extend time to their late application, and grant leave to the Applicants to apply for judicial review of the Board’s decision on the grounds stated above, and 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 Board as respondent and the Director as interested party, and also direct that A2 and A3 be represented by the Official Solicitor under Order 80 rule 2 of RHC to continue with their judicial review application.

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