SH v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 59/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 59 OF 2015

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J U D G M E N T

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1.  This is an application for judicial review against the decision of the Torture Claim Appeal Board (hereinafter called “the Board”) and the Director of Immigration (hereinafter called “the Director”) for dismissing the non‑refoulement claim of the applicant.

2.  Leave has been granted for the applicant to argue the following two grounds:

(1) The Board erred in refusing to hold an oral hearing despite new evidence raised in the Notice of Appeal by the applicant, and that credibility was in issue; and

(2) The Board held no independent enquiry into any Country of Origin Information (“COI”); and the assessment by the Director in such regard was insufficient with no adequate reasons given.

Background

3.  The applicant is of Bangladeshi origin.  In 2005, the applicant joined the Awami League (AL) which was one of the major opposition parties.  The ruling party was the Bangladeshi Nationalist Party (BNP).  He said that due to his flair, he managed to recruit a lot of supporters for AL.  He was approached by Shamin, the vice president of BNP of No 5 Ward under Jhenaidah Civic Council, who invited him to join the BNP but he refused.

4.  In mid‑2005, Shamin went to see the applicant and warned him to stop his activities.  He asked Shamin not to disturb him and Shamin left.

5.  In October 2005, Shamin led a group of 5 to 6 BNP members to see him, asking him to join the BNP.  On his refusal, Shamin uttered words of threat of assault to him.

6.  In December 2005, Shamin again led a group of 4 to 5 people to go and see him.  He said he was beaten up on this occasion with wooden sticks, iron rods and hockey sticks.  He suffered bleeding, bruises and cut wound.

7.  In January 2006 Shamin led a group of 5 people to his home whilst he was not in, and told his father to tell him to obey them if not he would be killed.

8.  After that he fled to Magura where he stayed for about 4 months, and then to Dhaka.

9.  He arrived in Hong Kong on 28 July 2006 and was granted permission to stay for 14 days.  He was arrested for overstaying by the police on 9 August 2007.  Whilst on recognizance, he took up unapproved work and was arrested by the police on 16 April 2008. Having served a two months sentence he was released from prison on 7 June 2008 and was released on recognizance on 24 June 2008.  He filed a non‑refoulement claim on 17 May 2010.

10.  BNP lost power after the national election held on 5 January 2014.  However, the applicant fears that although AL is now in power, BNP still bears grudges against AL and should he return to Bangladesh, Shamin and his followers will inflict harm on him or even kill him.

11.  The applicant’s claim was assessed on all applicable grounds:

(a) risk of torture under Part VIIC of the Immigration Ordinance Cap 115 (“Ordinance”) (“Torture Risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of the Hong Kong Bill of Rights (“BOR3”) and section 8 of the Hong Kong Bill of Rights Ordinance (“BOR3 Risk”); and

(c) risk of persecution with reference to Article 33 of the Convention relating to Status of refugees (“Persecution Risk”).

12.  The claim was rejected by the Director on 18 July 2014.  On 1 August 2014, the applicant filed Notice of Appeal to the Board.  The Board affirmed the Director’s decision and dismissed his appeal without any oral hearing on 27 April 2015.

The Director’s decision

13.  As regards the likelihood that the applicant’s feared treatment would materialize:

(a) The Director assessed that the applicant was an ordinary member of AL who engaged in low tier work.  It was unlikely that he would be personally targeted by Shamin and his people after a lapse of over 8 years;

(b) The past ill‑treatment from Shamin was of low intensity and frequency, as manifested by the fact that he was able to live safely and harm‑free during his stay in Magura and Dhaka for 4 and 2 months respectively;

(c) The Director considered that there was no indication that the BNP was acting in an official capacity when the threats and attacks were mounted on him.  Neither did he seek any help from the police or any authority in his country.  The Director considered the COI materials and concluded that there was sufficient state protection in Bangladesh; and

(d) The Director considered that internal relocation was a viable option for the applicant.

14.  The Director rejected the “BOR3 risk” claim on the grounds that the applicant was unable to show that he would face a genuine and substantial risk of being subjected to ill‑treatment of a minimum level of severity.  As for “persecution risk”, the Director found that the feared ill‑treatment only stemmed from a private dispute was not within any of the 5 elements of “race, religion, nationality, membership of a particular social group or political opinion” stated in Article 33 of the Convention.  Similarly, the Director found that the applicant failed to establish “torture risk” because there was no evidence to show Shamin was a government official, and there was no evidence to suggest “state acquiescence”.  The fact that the applicant was free to leave Bangladesh on the strength of his passport was indicative of the lack of state involvement.

15.  The Director rejected the applicant’s non‑refoulement claim.

Decision of the Board

16.  The Adjudicator reconsidered the whole case afresh on all the documents before him.  He decided not to hold any oral hearing because he found that “no worthwhile and effective representation could be made”.  He upheld the Director’s decision:

(a) He did not believe that the applicant was running for his life as the applicant spent two years in Hong Kong without filing any claim, and only applied to UNHCR in 2006 but never followed up.  He only applied for non‑refoulement “where he appeared to have run out of options and was facing imminent repatriation”;

(b) He found that the applicant and Shamin were just foot soldiers of their respective parties and did not occupy any formal and high position.  Further, he found that the applicant was not indispensable to his own party in canvassing votes, and during his absent from home for 8 years his party had won over the election without his help; and

(c) He found the applicant to be exaggerating his case and the three incidents cited by him were nothing more than bullying of personal natures.

Applicable legal principles

17.  The relevant legal principles are set out succinctly by Barnes J in SS v Director of Immigration and TCBA, HCAL 69/2015:

“27. It is trite law that judicial review is not a further appeal. The court, in the exercise of its supervisory jurisdiction in the context of judicial review is to examine whether the Director and/or the Appeal Board in dismissing the applicant’s claim (a) made any error of law; and (b) handled the claim without compliance with the high standard of fairness as required by the law (as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187). It is also important to bear in mind that while the burden of proof lies on the torture claimant applicant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture, it is subjected to the requirement of ‘high standards of fairness’ that both the Director and the Appeal Board must observe. What the ‘high standards of fairness’ demand would depend on the circumstances of each individual case but ultimately it boils down to common sense and fairness (see TK v Jenkins & Anor [2013] 1 HKC 526). The determination of a torture claim is a ‘joint endeavour’, the claimant cannot sit back and require the Director to disprove his claim (see CH v Director of Immigration [2011] 3 HKLRD 101.”

Discussion

18.  I shall first deal with Ground 2, which can be disposed of shortly.

19.  The Director, in his decision, set out in paragraph 15 and 16 the COI both for and against the existence of state protection in Bangladesh.  A list of references to the various COIs was appended.  The Director accepted that there were COI material which corroborates the applicant’s assertion that Bangladesh police were corrupt and could be bribed, yet there were also COI material which showed that there was on‑going reform with positive results.  The mere fact that police corruption still exists in Bangladesh when the government has implemented ways for its people to seek recourse and justice does not mean that the measures are ineffective.  It is clear that the Director considered COI both against and in favour of the existence of state protection and concluded that reasonable state protection was available and it was the choice of the applicant not to exhaust those channels.  The Director also found that state protection would be available if resorted to upon the applicant’s return to Bangladesh.

20.  The determination process is one of “joint endeavour” is demonstrated in many judgments:

“42. . . . the Director only needs to demonstrate that the country condition of India had been adequately considered. A list of all the materials was provided in the Decision so one can see what materials the Director had perused and considered. The applicant was legally represented at the hearing and if there were important relevant materials that the Director should take into consideration, the applicant has the duty to bring them to the attention of the Director. . . . ” (per Barnes J, SS, supra)

“29. The applicant was assisted by lawyers from the Duty Lawyer Scheme when he completed the questionnaire for the Director and when he filed the Petition. I accept that, as held in TK, the applicant is to be expected to conduct his own investigation and to obtain and present the information and materials he requires to prove his case. If he needs assistance to obtain any information or materials which is required and not available to him, he may seek the Director or the Adjudicator to obtain such information for him. Without doubt, the applicant cannot simply sit back and required the Director to do all the probing and to disprove the torture claim.” (per M Chan J, Shafqat, Ali and Betty Kwan & Anors, HCAL 74/2012)

21.  The Adjudicator, in his Decision, said that “the whole circumstances of the appellant, both in his home country and here in Hong Kong will be taken into consideration.”  The Adjudicator found against the applicant on his overall credibility, and that the applicant was putting his case with exaggerations.  It was not accepted that the applicant was personally at risk of torture or CIDTP, there was no need to consider COI materials for purpose of the question of state acquiescence.

22.  The second ground of review fails.

23.  Turning now to ground one relating to the failure to hold an oral hearing, the Adjudicator said:

“18. . . . In this appeal, the whole case will be reconsidered afresh based on all the documents placed before me. I earlier decided not to hold a hearing to hear oral representations because having preliminary reviewed the whole case, I found that no worthwhile and effective representation could be made. I am satisfied that his appeal can justly be determined without a hearing.”

24.  A torture claimant does not enjoy an absolute right to an oral hearing.  Cheung CJHC has set out in ST v Betty Kwan [2014] 4 HKLRD 277 various factors that the Adjudicator should bear in mind in considering whether an oral hearing should be afforded, in particular, he said:

“40. . . . an adjudicator should ask himself whether there is anything in the torture claimant’s story, the evidence and information available, the legal issues raised, the arguments mounted, the decision of the Director, the written petition of the claimant, and so forth, which is material to the determination of the CAT claim, and which high standards of fairness would require the torture claimant to be given an opportunity to be heard orally (or further in writing), before a decision is made on the torture claim. For instance, if there is any point, factual or legal, that is troubling the adjudicator, which the adjudicator is not sure that an oral hearing or further submissions from the applicant cannot help answer or otherwise clarify, that is a strong pointer towards an oral hearing or (where appropriate) further written representations. . . .

. . .

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, 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.  . . . ”

25.  Lam JA (“as he then was”) in RS, CACV 206/2012 said:

“22. . . . it should be borne in mind that an oral hearing is only a facet of fairness. The ultimate issue is whether the Secretary for Security acted fairly in processing the applicant’s CAT claim and this must be considered globally. The determination of the petition should not be viewed as an isolated process. The petition is part and parcel of the overall administrative process in the determination of the CAT claim. This does not mean that an adjudicator need not act fairly and, as we shall see, he or she has a duty in observing the high standards of fairness laid down by the Court of Final Appeal in Prabakar. But in processing a petition, an adjudicator is entitled to have regard to the primary materials placed before him or her in deciding what procedures should be adopted. . . . ”

26.  The Adjudicator noted that the applicant spent 2 years in Hong Kong as an illegal immigrant.  He was caught and punished for unapproved employment.  In 2006 he did apply to the UNHCR but this application was never followed up.  The Adjudicator commented that the applicant’s “tardiness and lack of earnestness in Hong Kong on his matter of life and death were inconsistent with his claim that he was running for his life”, and that “he only lodged a torture claim for non‑refoulement protection where he appeared to have run out of options and was facing imminent repatriation”.  He found that the applicant was exaggerating his claim when he related the 3 incidents that he was approached by Shamin and his men and concluded that these were only personal bullying incidents, which fell far short of “minimum level of severity”.

27.  Counsel for the applicant submitted that credibility issue permeated the whole findings by the Adjudicator.  According to the Director’s decision, the applicant was interviewed by the UNHCR in 2010 but he did not follow up with that application because he originally went to the office with a friend and he did not know the location of their office.  The Adjudicator, it was submitted, found that there was “tardiness and lack of earnestness” on the part of the applicant, and used that as a ground to reject his claim without further probing.

28.  Mr Hew, counsel for the Director who also acted as an interested party for the Board disagreed.  It was argued that any findings on credibility relating to the belatedness of the applicant’s claim for protection was confined only to the issue of whether he was “running for his life” and at most only affected the Adjudicator’s decision whether to hold an oral hearing and not the substantial determination of the applicant’s petition to the Board.

29.  I find the present situation not dissimilar to TI and Winston Leung qua Member of the TCAB/Adjudicator, HCAL 66/2015.  There, the Adjudicator made his own findings on credibility and Au‑Yeung J said:

“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. . . .

. . .

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

30.  Further, the applicant, in his Notice of Appeal stated that although Shamin was not an officer of any government office, he was a high level political leader and a top terrorist in Bangladesh, that “he is a murderer, smuggler, supplier of drugs and prostitution”, “police and administration knows everything but never ask him anything” because he supplied large amount of money to all levels of the administration, “his hand is very long and his network is very very strong”.  Counsel for the applicant submitted that these were matters which had never been raised before and the Adjudicator should have called for an oral hearing to ask the applicant to clarify matters which he thought were troubling his mind.

31.  Mr Hew disagreed. He submitted that the applicant, who was legally presented at the Screening Interview, knew that he should disclose fully all relevant material facts, issues, information and supporting materials at the first available opportunity.  It was also submitted that the so‑called “new evidence” were already largely advanced and covered before the Director and could not be said to be fresh evidence as such warranting an oral hearing.

32.  It is clear from the Decision of the Adjudicator that he was alive to this “new evidence” as set out in the applicant’s grounds of Appeal:

“28. The appellant claims that he was in fear of Shamin. In his Grounds of Appeal/Petition, he described Shamin as a murderer and a powerful political high‑level leader. In the Screening Interview held on 16 May 2014, he was asked about his knowledge of Shamin and the followings are the Q&A:

Q11: Was he a government official?

A11: No.

Q12: Was he powerful in your home village?

A12: Yes.

Q13: What made him powerful?

A13: I don’t know.

Q14: What made you think he was powerful?

A14: I was beaten by him. That’s why.

Later, he talked about why Shamin wanted to find him:

Q30: Why did you think Shamin and his people will find you if you relocated to other Division in Bangladesh?

A30: Just to beat me up.”

33.  I tend to agree with Mr Hew that not any fresh evidence raised on appeal would call for an oral hearing.  It all depends on whether, in the mind of the Adjudicator, further probing is necessary and whether such so‑called fresh evidence is just more or less the same as what was advanced before the Director.  In the present case, whilst the “new evidence” ground on its own may not succeed, I am of the view that since the Adjudicator found against the applicant’s credibility which led him to conclude that the applicant’s claim was unsubstantiated, the high standards of fairness required by Prabakar call for the Adjudicator to give the applicant an opportunity at an oral hearing to deal with those matters which were troubling in his mind, before he decided the petition.

Conclusion

34.  In the absence of oral hearing before the Adjudicator, I find that there was a failure to meet the high standard of fairness.  I allow SH’s application for judicial review against the Board’s decision but reject his application in respect of the Director’s decision.  I grant a certiorari to quash the decision of the TCAB and order the matter be remitted to the TCAB for re‑consideration by another Adjudicator.  I also direct the case to be heard expeditiously.

35.  I make an order nisi that the Director and the Board shall pay 50% of SH’s costs of these proceedings, to be taxed on a party to party basis if not agreed, with certificate for counsel.  The deduction is made on the basis that the application in respect of the Board succeeded but failed in respect of the Director.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.