TI v. WINSTON LEUNG

HCAL 66/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 66 OF 2015

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J U D G M E N T

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INTRODUCTION

1. This is an application for judicial review of the decision of the respondent (“the TCAB”), dismissing the applicant’s non-refoulement petition.

2. The main ground for this judicial review is that the TCAB erred in failing to conduct an oral hearing for the appeal.  The applicant relies on the following matters:

A.  That TCAB’s findings against the applicant’s credibility were based on assumptions and speculation without evidential basis and the applicant ought to have been given an opportunity to respond or explain (“the findings without basis ground”);

B.  New evidence or issues were raised in the notice of appeal but the Adjudicator has not considered them (“the new evidence ground”).

3. The stance of the Director of Immigration (“the Director”) is that there was no absolute right to an oral hearing.  The applicant has been afforded a reasonable or fair opportunity to present his claim.  In any case his appeal was not determined on the ground of credibility.

IMMIGRATION AND PROCEDURAL HISTORY

4. The Applicant was born in 1983 and lived in Bangladesh.  He departed Bangladesh on the strength of his Bangladeshi passport on 5 August 2007 and entered Hong Kong illegally on 16 August 2007.  He was arrested by the Hong Kong police on 10 May 2008 and was referred to the Immigration Department.  He made his non-refoulement claim (“the claim”) on 17 May 2008.

5. On 19 June 2014, the Director rejected the Applicant’s claim (“the Director’s Decision”).

6. On 4 May 2015, the TCAB dismissed his appeal (“the TCAB’s Decision”).

7. On 21 August, 2015, the Applicant was granted leave to apply for judicial review against the TCAB’s Decision only. 

BACKGROUND FACTS

8. The Applicant was born in a village in District Munshigonj, Bangladesh. He is a Muslim.  He used to live with his parents and 5 siblings.

9. On 5 May 2006, the Applicant and B started a business of assembling machine parts and setting up flour production machines in Bangladesh.  Each of them invested 10 Bangladeshi Lakh Takas in the business and agreed to share profits.  Their Workshop was located in District Narayangonj.  The landlord was AH (“the Landlord”), rich and involved in politics in the area.

10. The Applicant made a contract with a wealthy mill owner called SA (“the Mill Owner”) to assemble and set up machinery on the mill for the latter.  The Mill Owner paid him 15 Bangladeshi Lakh Takas.

11. Before the contract could be carried out, B told the Applicant in October 2006 that he no longer wished to continue their business relationship, and that everything in the Workshop and the assets belonged to B.  B asked the Applicant not to go to there anymore.

12. At the Workshop, B showed the Applicant some documents (“B’s documents”) showing that all machines including parts were under B’s name and hence his property.  The Applicant had a quarrel with B. About 8-10 men hired by B (“B’s people”) physically assaulted the Applicant for about 10 to 15 minutes.  Before the Applicant left, B’s people pointed a knife at him, warned him not to go there again, or he would be killed.

13. The Applicant showed B’s documents to the Landlord, and the elders and the chairman of the Applicant’s home village on separate occasions.  They all confirmed that B’s documents were authentic and that everything in the Workshop belonged to B.  B refused to return any money to him.

14. On the next day, the Applicant called for an arbitration meeting, which was attended only by the Landlord, B, the Applicant and the Applicant’s brother.  B told the Applicant that he would kill the Applicant if the Applicant created any trouble.  The Landlord also said that the Applicant could not do anything because everything was under B’s name.  The Applicant had an impression that the Landlord was the person behind the scene.

15. On the next day, the Applicant went to C Police Station intending to file a report of fraud against B, with the Landlord being the accomplice.  The police, however, refused to take the complaint, alleging that the Landlord was a good man and that if he made such a complaint, he might have problems.

16. On the other hand, the Mill Owner pressed the Applicant to either fulfil the contract or make repayment of 15 Bangladeshi Lakh Takas. The former had filed a report with the police that the Applicant took the money from him.  When told by the Applicant on the phone that he could not fulfil the contract, the Mill Owner threatened to kill him.

17. Because of the Mill Owner’s report, the police started to go to the Applicant’s home frequently and harassed the Applicant’s parents.  

18. The Mill Owner gave the Applicant one month to fulfil the contract.  B refused the Applicant’s request to work to fulfil the contract, and threatened the Applicant again. 

19. The Applicant failed to fulfil the contract after one month.  The Mill Owner threatened that the Applicant should repay him or fulfil the contract, or he would be killed. As the Applicant was unable to repay the money, he hid in Chittagong at the place of his elder brother’s friend.

20. After hiding in Chittagong for about a month, the Applicant looked for work in another flour mill, where he and B had worked before.  The Applicant believed that B knew that he would go there and told the Mill Owner about this.  The Mill Owner, presumably, had asked the owner of that flour mill to put pressure on the Applicant for repaying his money.  B also took the opportunity to threaten to kill the Applicant even if this would cost him 50,000 to 100,000 Bangladeshi Takas, if the Applicant tried to claim ownership of the Workshop.  The owner of the flour mill refused to offer the Applicant any contract.

21. After staying in Babu Bazar for about a week, the Applicant went back to Chittagong.  The Applicant believed that he could not obtain any employment anywhere.  He feared that B would send someone to kill him and that the Mill Owner would go after him for money that he could not repay.

22. The Applicant decided to leave Bangladesh for his life.  His brother helped him to contact an agent who suggested that the Applicant should go to seek protection in Hong Kong. 

23. The Applicant went to stay in Dhaka until he left Bangladesh.

24. The Applicant has been in contact with his family after coming to Hong Kong.  He was told that the Mill Owner had sent some people to his parents’ place looking for the Applicant.  His parents were threatened.  The Mill Owner had also brought the village elders with him to publicly scold and humiliate the Applicant’s parents.  The Applicant was told by his parents that the Mill Owner was threatening to kill him if he went back to Bangladesh.

25. The Applicant believed that no one would be able to help him if he was harmed.  The Bangladeshi police would not help him because the Applicant indeed has not repaid the Mill Owner his money.

26. On 11 February 2014, the Applicant had a conversation with his cousin.  The Applicant was told that about 1.5 month ago, the Mill Owner sent some people to assault the Applicant’s father.  The Mill Owner kept harassing the Applicant’s family constantly, once every several days.

27. The Applicant believes that he cannot relocate to any other part of Bangladesh to avoid the Mill Owner or his people because the Mill Owner would be able to locate the Applicant wherever he lives.

The Non-Refoulement Claim

28. By a letter dated 17^th May 2008, the Applicant lodged with the Director a non-refoulement claim.  When the Immigration (Amendment) Ordinance 2012 came into force and upon implementation of the Unified Screening Mechanism, the Applicant’s non-refoulement claim was investigated.  He was assigned a duty lawyer for the purpose of advising and representing him.

29. In March 2014, the Applicant submitted his completed Torture Claim Form and Supplementary Claim Form to the Director.  In May 2014, he also submitted a certificate issued by the Chairman of Kalma Union Council dated 17 February 2014, verifying the Applicant’s problems with B and confirming that it would not be safe for the Applicant to return to Bangladesh (“the Supporting Document”).

30. The Applicant’s claim was considered on the grounds of: (a) risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”); (b) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 risk”); and (c) risk of persecution (“persecution risk”) with reference to Article 33 of the Convention Relating to the Status of Refugees 1951 and its Protocol 1967 (“the Refugee Convention”).

The Director’s Decision

31. The Director rejected the Applicant’s non-refoulement claim on the following grounds.  As regards the likelihood of the Applicant’s feared treatment materializing:

(a)  The Director identified 9 different confrontations or occasions with B, B’s people and the Mill Owner.  He found that apart from one occasion on which the Applicant was physically assaulted by B and his people, the Applicant had received only verbal threats.  That physical assault lasted for about 10 minutes, and the Applicant only suffered minor injury.  He sustained muscle pain and no bruises were found.  Nor did he need to seek medical treatment in respect of his injury.  The Director did not accept that the Applicant had suffered any physical or mental ill-treatment attaining the “minimum level of severity”’ under BOR3 or ‘severe pain or suffering’ within the definition of “torture”.

(b)  B’s people were unknown. The Applicant had not encountered them again before he departed Bangladesh. The Applicant did not know B or the Mill Owner’s political affiliation.  He merely stated that B knew some influential politicians in his village but did not know their names or which party to which they belong.  The Director found it far-fetched to say that B, B’s people and the Mill Owner had any connection with the police, or the Bangladeshi government or authorities. 

(c)  The Applicant’s problems with B and the Mill Owner were purely personal and private, and were caused by business and financial disputes within commercial context.  There was no material evidence showing any official involvement in them.

(d)  The Applicant did not report to senior officers of the police station or other police stations or Bangladeshi authorities.  There was no indication that other police stations or Bangladeshi authorities would not render assistance to him.  The acts of the police officers refusing to receive the Applicant’s complaint were merely performed in their own capacity instead of official capacity.  Such acts would not be in any way accepted and/or tolerated by the Bangladeshi government as a whole.

(e)  It was the Applicant’s own choice not to report the assault and threats at the arbitration meeting to the police even if the police had refused to register the Applicant’s complaint of deception.  The Bangladeshi government neither knew nor had reasonable grounds to know the Applicant’s asserted problems.  Had they known about it, there was no indication that they would not exercise due diligence to prevent, investigate and punish B, B’s people and the Mill Owner consistently.  The Applicant’s experience was an isolated incident caused by misconduct of police officers in a particular police station and did not reflect the stance of the Bangladeshi police.

(f)  The Applicant was never charged, arrested or imprisoned in Bangladesh. He did not have any problem when departing Bangladesh through official immigration channel.  He was not a target of the government, police or public authorities.

(g)  The risk of subject to ill-treatment upon the Applicant’s return was low.  The Applicant did not encounter B or B’s people face to face after the 7^th confrontation by the time he left Bangladesh. Though B knew that the Applicant would proceed to another mill to seek employment, the Applicant was not intercepted by B or B’s people there.  Instead B merely informed the Mill Owner to inform the mill owner about the Applicant’s dispute with B and to serve verbal threat on the Applicant via the mill owner.

(h)  The Applicant had left Bangladesh for about 7 years, and had done nothing to reclaim his interest in the Workshop.  His contact with his family since he had left Bangladesh did not show that B had gone to the Applicant’s house.  As such, there was nothing showing that B would still have adverse interest to harm or kill him.  The Applicant’s problems with B arose only because the Applicant asked B to return him his initial capital for setting up the Workshop and assist the Applicant in fulfilling the contract with the Mill Owner. B had only assaulted the Applicant once, and had not taken action to escalate his actions before the Applicant left Bangladesh. His adverse interest in the Applicant had clearly dissipated through lapse of time, given that the Workshop had become B’s own business without any opposition from the Applicant or his family.  The likelihood of the Applicant being subjected to ill-treatment from B therefore was low.

(i)  The Applicant had only received verbal threat from the Mill Owner once.  The harassment to the Applicant’s family was mainly to put pressure on them to force the Applicant to repay.  There was nothing showing that they had suffered severe injury throughout the years, and this showed that the Mill Owner did not have any real intention to harm or kill the Applicant.

(j)  The Applicant said that he had no money to repay the Mill Owner.  His problem with the Mill Owner could apparently be solved by him fulfilling the contract, or making or negotiating financial compensation to the Mill Owner.  If the Applicant was innocent and a victim, the Applicant should not avoid police investigation and should be able to defend properly in court if he was charged for related offence.  As such, the risk of the Applicant being subject to ill-treatment by the Mill Owner was also low.

(k)  The Applicant said that B knew some influential people in the Applicant’s village and the Mill Owner knew a lot of people.  If the Applicant was harmed, no one would say anything.  The Mill Owner would be able to locate the Applicant and B would send people to kill him. It would not be safe and the Applicant would not have protection of the police upon his return.  However, objective country of origin information showed that a fair and proper judicial process was available in Bangladesh and that the Bangladeshi authorities or police were willing and able to offer reasonable and sufficient protection to citizens.  As such, state protection should be available to the Applicant in Bangladesh even if his fear of harm on return was genuine.

(l)  The Applicant had stayed in Chittagong for about 8 months in safety.  Given the territory and population of Bangladesh in particular Dhaka and Chittagong, it would be very difficult for B or the Mill Owner to find the Applicant if he relocated there.  A metropolitan region like Dhaka or Chittagong might allow the Applicant to restart his career or earn a living there.

(m)  Internal relocation was permissible under the constitution of Bangladesh.

32. The Director did not find the Applicant credible.  The Applicant lived in Ping Che with his friend after coming to Hong Kong.  When asked why he had not raised his clam earlier, the Applicant explained that his friend was also a new comer to Hong Kong and therefore he did not tell his friend why he had come to Hong Kong and how to seek protection.  However, his friend was also a holder of recognizance.  The Director found that such inconsistent and unconvincing explanation cast doubt on the overall credibility of the Applicant’s claim.  His agent told him that he had protection in Hong Kong and yet the Applicant raised his claim only after he had been arrested by the police, ie 9 months after his arrival in Hong Kong.  His behaviour was inconsistent with that of a person who was genuinely in fear of being harmed in his home country.

33. For reasons stated in paragraph 31 above, the Director rejected the BOR3 risk claim.

34. As regards persecution risk claim, the feared ill-treatment did not fall within the meaning of persecution on account of one or more of 5 elements, ie “race, religion, nationality, membership of a particular social group or political opinion” stated in Article 33(a) of the Refugee Convention.  The treatment that the Applicant feared was purely a personal, private and financial dispute within commercial context.  For similar reasons given in paragraph 31 above, the risk of the feared ill-treatment was assessed to be small and the fear unfounded.

35. The torture risk claim was rejected on similar grounds.  The Applicant’s problems with B or the Mill Owner were found to be purely a personal, private and financial dispute within commercial context.  The Applicant did not sustain any severe pain or suffering.  Again, there was no indication of government or official involvement.

36. Further, the Director noted that the Supporting Document was based on what the Applicant’s cousin told the Chairman.  Some crucial persons or incidents were not mentioned in it.  The Director considered that it neither advanced the Applicant’s claim nor supported his assertion of perceived risk of harm if he were to return to Bangladesh.

37. No leave was granted for judicial review of the Director’s decision.

The TCAB’s Decision

38. The TCAB (correctly, in my view) guided itself on the burden and standard of proof (§23 of TCAB’s Decision) and there is no challenge by Mr Ngan, counsel for the Applicant.  The TCAB referred to the case of ST v Betty Kwan [2014] 4 HKLRD 277and decided not to hold an oral hearing.  It upheld the Director’s decision on the following grounds:

(1)  The inaction of the Applicant for 9 months after his illegal entry to Hong Kong was incredible.

(2)  The Applicant knew very little about B, his occupation or political affiliation or whether he had any connection with the police.  The Applicant only knew that B knew some influential people in his village but the Applicant had no idea if they were politicians or their political parties.  Nor did he know if the Mill Owner had any political affiliation or connection with the police or Bangladeshi authorities.  He just knew that the Mill Owner had contact with politicians.

(3)  As regards the torture risk claim, B should only be regarded as “negative torturer”. The Applicant showed his intention not to bother B and regarded his loss in the business for good.  His assertion that B was a terrorist was a “sheer exaggeration” with no evidence to support.  B was obviously not a public official or acting with government’s acquiescence or anything else.  For the Mill Owner, the Applicant’s description of him could not make him a public official.  Being rich and involved in politics did not necessarily mean that police or any political party would acquiesce his killing of people in debt-collection.  The torture risk claim was therefore rejected.

(4)  As regards the BOR3 risk claim, the Applicant had experienced physical violence from B on one occasion only. The death threat uttered by B, on the whole circumstances, was “an idle statement” meant to frighten off the Applicant.  Despite many opportunities, B never killed or did anything meant to kill the Applicant.  For the death threat uttered by the Mill Owner, similarly, it was only “an idle statement” showing that the Mill Owner was eager to have his money back.  From the Applicant’s description of the Mill Owner, he was not an evil person capable of committing serious crimes at all costs.  He was a rich merchant but not a money-lender.  Even taking into account the Mill Owner’s humiliation and assault of the Applicant’s parents, TCAB found that neither B nor the Mill Owner intended to kill the Applicant and the whole circumstances did not amount to severe physical or mental pain or suffering, or attain a minimum level of severity of ill-treatment.  The BOR3 risk claim was therefore rejected.

(5)  The persecution risk claim was rejected on the ground that the feared ill-treatment did not fall within any one of the 5 elements in the Refugee Convention. 

LEGAL PRINCIPLES ON AN APPEAL BEFORE THE TCAB

39. The Adjudicator of TCAB does not discharge an appellate role.  His determination of a petition involves a rehearing of the matter determined by the Director below: AM v Director of Immigration & anor [2014] 1 HKC 416 at §28, McWalters J (as he then was).  It requires a fresh and independent decision of the claim by the Adjudicator: X v TCAB, HCAL 143/2013, 4 September 2014, Zervos J, §29.

40. A person determining a Convention claim has to display a high standard of fairness.  It does not involve adopting an attitude of sitting back and putting the person concerned to strict proof of his claim but adopt an active role in screening the claim: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; ST v Betty Kwan, §39.

41. The process of determining a claim is a joint endeavour requiring the Director or the Adjudicator to take the initiative in probing into an answer or an omission of the Applicant: CH v Director of Immigration [2011] 3 HKLRD 101, §47; TK v Jenkins & anor [2013] 1 HKC 526, §§24 and 25.

42. The fact that the burden of proof is on the applicant and the fact that he has not presented any further information do not absolve the TCAB’s duty of joint endeavour: Shafqat, Ali v Betty Kwan & ors, unreported, HCAL 74/2012, 17 December 2013, Mimmie Chan J at §36.

43. The legal principles governing whether or not an oral hearing should be held for an appeal or a petition concerning a non-refoulement claim was authoritatively laid down by the Court of Appeal in the case of ST v Betty Kwan at §§20-55.

44. There is no absolute right to an oral hearing but foremost is the principle of high standards of fairness. Since a torture claim involves the absolute and fundamental human right to be free from torture and the potential consequence of the adjudicator’s decision is grave, these are weighty considerations favouring the holding of an oral hearing:  ST v Betty Kwan, §38.

45. An oral hearing is not only to assist the adjudicator in the decision making, but also to reflect the applicant’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.  ST v Betty Kwan, §54.

46. An oral hearing should normally be given, amongst others, in the following situations:

(1)  Where any point, factual or legal, is troubling the adjudicator, or where relevant factual or legal points have not been dealt with adequately or at all in the petition: ST v Betty Kwan, §§40 and 42; Shafqat, Ali v Betty Kwan, at §36.

(2)  Where credibility issues crucial to the adjudicator’s decision are involved, and/or new matters are raised before the TCAB: Marcelo De Vera Centeno v Director of Immigration, unreported, HCAL 50/2012, 9 May 2012 per Lam J (as he then was) at §13;

(3)  Even if no new matters are raised, an applicant is entitled to say in an appeal or petition that inappropriate weight has been accorded to some aspect of the evidence: FB v Director of Immigration & anor [2009] 2 HKLRD 346 per Saunders J at §212.

47. The assumption must always be that an oral hearing has the potential to make a difference.  See R (Osborn) v Parole Board [2013] 3 WLR 1020, at §81, per Lord Reed JSC.

48. There are other authorities in items 9-13 of Mr Ngan’s list.  The principles therein relied on by Mr Ngan have either been referred to in local authorities (such as Prabakar), or concern findings of credibility which do not concern the court in a judicial review.  I shall not deal with them.

49. Ms Chow, counsel for the Director, places heavy reliance on the case of Re RS, unreported, CACV 206/2012, 20 August 2013, per Lam JA.  In that case, it was held that an adjudicator of the TCAB was not required to play the role of an adviser to the applicant to cover every possible gap in the applicant’s case provided the adjudicator had reasonable grounds to believe that the applicant was aware of and able to participate in a decision with important implications for him and that he had a fair opportunity of presenting the whole of his case.  There is no obligation on the Adjudicator’s part to seek further clarification or elaboration unless it is apparent that something had gone amiss or some salient points had been overlooked.

50. However, that case was decided before and should be read subject to ST v Betty Kwan, which deals with the oral hearing to be conducted in the 2^nd tier before the TCAB.

LEGAL PRINCIPLES ON JUDICIAL REVIEW

51. The Court of First Instance on a judicial review of the decisions of the Adjudicator was not to determine the merits of the claimant’s failed non-refoulement claim but rather to ensure that there had been no deficiency in the process that the claimant had undergone which had resulted in his claim being refused. The court does not sit on appeal from the Adjudicator’s decision.  It only plays a supervisory role in the judicial review.  AM v Director of Immigration, at §31; TK v Jenkins, at §40.

52. The court will on judicial review subject the TCAB’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met: Prabakar, §45.

53. In the context of a judicial review of a decision of an Adjudicator, the crucial issues are: whether the Adjudicator committed any error of law in his interpretation of the Convention; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; whether the substantive decision satisfied the enhanced Wednesbury test: TK v Jenkins & anor, HCAL 126/2010, 21 October 2011, §87, Lam J (as he then was).

54. The enhanced Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: AM v Director of Immigration, §34.

ANALYSES OF SPECIFIC GROUNDS FOR JUDICIAL REVIEW

55. There is, rightly in my view, no challenge to the TCAB’s interpretation of Part VIIC of the Immigration Ordinance, BOR3 and the Refugee Convention and TCAB’s application of the burden and standard of proof.  The whole challenge is on procedural unfairness.

The findings without basis ground

56. TCAB was satisfied that the Applicant had made all his worthwhile representations and thus the appeal could justly be determined without an oral hearing (§4 of the TCAB’s Decision).

57. On a fair reading, the Director assessed the Applicant’s claim on bases of the facts as put forth by the Applicant, ie regardless of the credibility of the Applicant.  He concluded that the claim failed for not meeting the minimum level of severity of ill-treatment and that there was no persecution on account of any of the 5 elements under the Refugee Convention.  It was a personal, private and commercial dispute within a commercial context. The Director’s finding against the Applicant’s credibility was a separate finding which added force to his conclusion.

58. It is noteworthy that the facts in the Amended Form 86 were taken from the Director’s Decision.  There cannot therefore be any legitimate complaint that the Director has missed material facts or wrongly summarized the Applicant’s case.  In truth, the facts and reasoning of the Director were very comprehensive and well analyzed.

59. However, the Adjudicator did not adopt, wholesale, the findings of fact made by the Director but made his own findings on credibility. 

60. In §15 of the TCAB’s Decision, the Adjudicator referred to Applicant’s belatedness in raising a non-refoulement claim:

“15. … According to [the Applicant] during these 9 months, he shared a place in Ping Che with another fellow Bangladeshi who was also holding a recognizance. The illegal entry together with readily having someone to put him up in a place with another person in similar situation demonstrated that there were some kind of arrangements in place for such situation and that people [liked the Applicant] would not desire any intervention from the Hong Kong officials such as Immigration Officers. The explanation of [the Applicant] that during these 9 months he and his fellow Bangladeshi never discussed something about their situation in Hong Kong is incredible.” (underline added)

61. A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened.  Nor should a decision-maker apply his or her own common sense in assessing a torture claim because what is ‘common’ sense in Hong Kong may be ‘uncommon’ sense in another place: ST v Betty Kwan, at §43.

62. Moreover, the TCAB has overlooked the explanation of the Applicant in his written grounds of appeal laid before the TCAB (“the Grounds of Appeal”). The Applicant has explained that he did not surrender himself to the Hong Kong Immigration Department because he was not brave like the interviewing officer. He was told by some Bangladesh people here that the Immigration Department would give him a long sentence and force him to go back to his country. These assertions were directed at challenging the Director’s disbelief of his case. The TCAB failed to consider such explanation on appeal.

63. This view on credibility may have influenced TCAB’s assessment of the Applicant’s case.  The words underlined in §15 of TCAB’s Decision were not supported by evidence.  There was procedural unfairness.  An oral hearing ought to have been held.

64. Mr Ngan also relies on the Adjudicator’s comment that the repeated death threats by the Applicant’s enemies were no more than “idle statements” and none of them intended to kill the Applicant.  Mr Ngan submits that this was against the weight of the evidence. 

65. With respect to Mr Ngan, I disagree.  The Director has identified 9 occasions of conflict but only one incident of assault.  There was no suggestion in the Notice of Appeal or the Amended Form 86 that the Director had wrongly identified any of the 9 occasions.  There was no escalation of harm inflicted on the Applicant throughout the period from 2006 until he left Bangladesh. The comment of TCAB was open to it on the facts and there was no Wednesbury unreasonableness.

The new evidence ground

66. Two new matters were raised by the Applicant in his Grounds of Appeal:

(i)  That B “is one kind of terrorist so he could do everything and the Bangladesh government supports this”; and

(ii)  New hyperlinks of 2 video clips showing country of origin information which may have advanced the Applicant’s case that state protection would not be available to him.

67. The TCAB did consider item (i) and made findings as set out in paragraph 38(3) above.  The TCAB did not explain why item (i) was the Applicant’s “sheer exaggeration”.  This involved a credibility issue and the TCAB’s finding was not supported by evidence at all.

68. Even applying RS, some salient points have been overlooked.  The Grounds of Appeal were made by the Applicant who was not represented since he lodged his appeal.  He raised item (i) for the first time before TCAB without further particulars.  It was not clear what he meant.  Item (i) may have an impact on the harm inflicted on him, involvement of government officials and government acquiescence.  The manner in which TCAB handled item (i) fell short of its duty of joint endeavour to investigate with the Applicant a factual issue, applying paragraphs 40-42 above. 

69. Item (ii) was not referred to at all in TCAB’s Decision.  Whether or not the Adjudicator had considered the video links, he should have said so and explained why: FB v Director of Immigration, at §221; Re MI, HCAL 20/2013, 20 March 2014, at §5, per Anthony Chan J.  At the hearing before me, some of the video links were inaccessible.  I am not sure if that was the position before the TCAB as well.

CONCLUSION

70. On rigorous examination and anxious scrutiny, making findings without evidence, failure to hold an oral hearing when there were matters of credibility and failure to consider the new matters on appeal reflected a failure to meet the high standards of fairness.

71. I therefore grant a certiorari to quash TCAB’s Decision and remit the appeal to the TCAB for re-consideration by another Adjudicator.  Given the time lag since the claim was first made, the appeal ought to be re-considered on an expedited basis.

72. On a nisi basis, costs should follow the event and be to the Applicant.  A lot of materials have been included in the trial bundles which have not been referred to.  There was duplication of copied documents (such as the Director’s Decision).  Likewise, the “other materials” in Mr Ngan’s list of authorities contained materials either already considered in Hong Kong authorities (like Prabakar). Unnecessary costs have been wasted.  Form 86 was largely a reproduction of the Director’s Decision and could have been shortened by a reference to that Decision with appropriate identification of what facts were not accepted.

73. I summarily assess costs, on a nisi basis, that solicitors shall have $150,000 and counsel $120,000.

74. I thank counsel for their assistance.