ERMAYANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

ERMAYANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Failure to ensure the 2nd applicant, a minor, had legal representation before the Board and the consequent lack of adequate consideration of child-specific non-refoulement risks constituted a procedural irregularity under the Rules of the High Court warranting grant of leave to apply for judicial review; accordingly leave was granted and the Official Solicitor directed to represent the minor, with further directions for case management.

Citation
[2022] HKCFI 3010
Parties
1st Applicant: Ermayani; 2nd Applicant: Syakila Nur Khalipah; 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
25 October 2022
Case Number
HCAL654/2019
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Granted; Directions Issued (notification of Judge's Decision)
Outcome
Leave to apply for judicial review of the Board's Decision granted; 2nd applicant to be represented by the Official Solicitor; originating summons to be issued within 14 days; case to proceed as joint application.
Legal Topics
Non Refoulement, Torture and CIDTP, Procedural Fairness, Child Specific Claims, Judicial Review Leave Stage, Severance and Case Management
Source Language
EN
Immigration Law Constitutional and Administrative Law Human Rights Law Refugee and Non Refoulement Law Children's Law Non Refoulement Torture and CIDTP Procedural Fairness +3 more

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Parties

Ermayani

1st Applicant

Syakila Nur Khalipah

2nd Applicant

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 Granted; Directions Issued (notification of Judge's Decision)

Legal Issues

  1. 1 Whether the Board's decision adequately considered child-specific non-refoulement risks for the minor (2nd applicant)
  2. 2 Whether absence of legal representation for the minor before the Board constituted procedural irregularity warranting leave to apply for judicial review
  3. 3 Whether the Board's decision and Director's decision involved errors of public law susceptible to judicial review at the leave stage

Ratio Decidendi

Failure to ensure the 2nd applicant, a minor, had legal representation before the Board and the consequent lack of adequate consideration of child-specific non-refoulement risks constituted a procedural irregularity under the Rules of the High Court warranting grant of leave to apply for judicial review; accordingly leave was granted and the Official Solicitor directed to represent the minor, with further directions for case management.

Court Disposition

Leave to apply for judicial review of the Board's Decision granted; 2nd applicant to be represented by the Official Solicitor; originating summons to be issued within 14 days; case to proceed as joint application.

Orders

  • Leave for the Applicants to apply for judicial review of the Board's Decision be granted
  • The 2nd Applicant be represented by the Official Solicitor