SALDANA NOEMA WALOHAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

SALDANA NOEMA WALOHAN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

The Board accepted the applicant's factual account and expressly found no substantial grounds to believe the mother or her minor sons would face harm on return; there were no identifiable minor-specific non-refoulement grounds not before the Board and the procedural non-compliance regarding representation was treated as a mere irregularity. The applicants therefore had no reasonable prospect of success and leave to apply for judicial review was refused.

Citation
[2021] HKCFI 1027
Parties
First Applicant: Saldana Noema Walohan; Second Applicant (minor): Asare, Daniel Saldana; Third Applicant (minor): Asare, David Saldana; Putative Respondent: Torture Claims Appeal Board/Non-refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 May 2021
Case Number
HCAL1450/2018
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Application Considered on Paper and Refused
Outcome
Leave to apply for judicial review refused; application dismissed.
Legal Topics
Non Refoulement, Torture and CIDTP, Judicial Review (leave), Representation of Minors, State Protection, Internal Relocation
Source Language
EN
Immigration Law Administrative Law Human Rights Law Child Law Refugee/asylum Law Non Refoulement Torture and CIDTP Judicial Review (leave) +3 more

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Parties

Saldana Noema Walohan

First Applicant

Asare, Daniel Saldana

Second Applicant (minor)

Asare, David Saldana

Third Applicant (minor)

Torture Claims Appeal Board/Non-refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Application Considered on Paper and Refused

Legal Issues

  1. 1 Whether the Board failed to consider the minor applicants' claims separately and in their personal circumstances
  2. 2 Whether the absence of legal representation for minors and procedural non-compliance justified granting leave or remitting to the Board for rehearing with representation
  3. 3 Whether there were reasonable prospects of success on non-refoulement, torture/CIDTP or Article 2 (right to life) grounds

Ratio Decidendi

The Board accepted the applicant's factual account and expressly found no substantial grounds to believe the mother or her minor sons would face harm on return; there were no identifiable minor-specific non-refoulement grounds not before the Board and the procedural non-compliance regarding representation was treated as a mere irregularity. The applicants therefore had no reasonable prospect of success and leave to apply for judicial review was refused.

Court Disposition

Leave to apply for judicial review refused; application dismissed.

Orders

  • Form 86 amended to add the two sons as Second and Third Applicants with their mother as guardian ad litem
  • Leave to apply for judicial review refused