RE FAR

HCAL 76/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 76 OF 2015

______________

J U D G M E N T
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1. This is an application for leave to apply for judicial review against the following decisions :

(1) The decision of the Director of Immigration (hereinafter called the Director) made on 21 November 2014 rejecting the Applicant’s non-refoulement claim; and

(2) The decision of the Deputy Chairman of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (hereinafter called the Adjudicator) made on 11 May 2015 dismissing the Applicant’s Appeal / Petition. 

BACKGROUND

2. The Applicant is a national of the People’s Republic of Bangladesh. 

3. In August 2005, he came to Hong Kong for the first time and was permitted to stay as a visitor for 14 days.  Since then he had been travelling between Hong Kong and Shenzhen.  On 9 October 2005, when he came from Shenzhen he was permitted to stay for 14 days as a visitor, until 23 October 2005.  He did not leave and overstayed since then. 

4. Around July 2006, he made an application to UNHCR for refugee status.  This application was unsuccessful.

5. On 10 August 2007, before the result of his refugee application was known, he was arrested for overstaying.

6. Around 1 September 2008, he claimed non-refoulement protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  A few days later, he was released on recognizance.

7. His torture claim was considered by the Immigration Department, who rejected the claim, by a Notice of Decision dated 21 November 2014.  The Director stated that the claim of the Applicant had been assessed on all applicable grounds, including torture risk, BOR 3 risk and persecution risk.  His decision was that all these grounds failed.

8. The Applicant appealed / petitioned against the decision.

9. The appeal / petition was heard on 24 April 2015 by the Deputy Chairman of the Torture Claims Board / Adjudicator of Non-refoulement Claims petition Office (“the Adjudicator”)[1].  By the Decision dated 11 May 2015, the Adjudicator dismissed the appeal and affirmed the decision of the Director.

FACTUAL BASIS OF THE NON-REFOULEMENT CLAIM

10. The events which the Applicant relied upon took place in 2005 when he was about 30 years old. 

11. In 1999, the Applicant joined the Bangladesh Nationalist Party (BNP), which was then the ruling party, as an ordinary member.  In 2004, BNP lost to the Awami League Party (ALP) in the national elections.  Members of ALP started targeting people of BNP.

12. Around late April 2005, Russel, the ALP leader of Lalbagh, approached the Applicant with a group of people and demanded him to leave BNP and join ALP.  The Applicant remained silent and Russel left.

13. Around May 2005, Polash, a BNP member was shot to death by a person said to be an ALP member.  Though investigation had been carried out by the Police, nobody was arrested.

14. Around June 2005, with a group of ALP members Russel quoted the case of Polash to the Applicant and threatened him that if he was not to join his party he would be beaten up badly.  Given the political climate in the area, the Applicant did not report the threat to the Police.

15. Around July 2005, with a group of people Russel assaulted the Applicant by punching, kicking and beating him for 5 minutes and said he would kill him if he was not to leave his party.  They even used a chopper to slash the Applicant on his left arm.  The Applicant sustained bruises all over his body as a result and he still carries a scar on his left arm.  It took him a month to fully recover from the injuries.  No report to the police was made because of the worries of further attack and more serious consequences.

16. In the circumstances, the Applicant decided to leave the country.  He flew to Hong Kong on 29 August 2005.

17. He has been maintaining contact with his family who are still living in Bangladesh.  He was told that Russel had come to his house two or three times to look for him and that Russel said he (the Applicant) would face serious consequences if he returns.

RELIEF SOUGHT

18. The Applicant seeks the following relief :

(1) an Order of Certiorari to bring up and quash the said decision of the Director;

(2) an Order of Certiorari to bring up and quash the said decision of the Adjudicator;

(3) an Order for extension of time under Order 53, rule 4(1) of the Rules of the High Court[2];

(4) an oral hearing if leave is not granted on paper (and thus this hearing);

(5) such further or other relief the court may provide; and

(6) an order for costs.

GROUNDS OF REVIEW

19. The Applicant was represented by Mr Andrew C H Y Leung.  The following grounds of review were put forward :

(1) Procedural impropriety : failure of the Adjudicator to seek clarification at oral hearing on matters requiring clarification;

(2) Error or misdirection in law,

(a) by the Adjudicator on the nature of the appeal;

(b) by both the Adjudicator and the Director on :

(i) meaning of state acquiescence;

(ii) meaning of severe physical or mental suffering

(iii) rejecting the Applicant’s credibility by failing to consider his evidence as a whole;

(3) Illegality or procedural impropriety of both the Adjudicator and the Director for failing to make sufficient inquiry of the Applicant’s case including the relevant country conditions of Bangladesh; and failure to provide adequate reasons;

(4) Illegality in that both the Adjudicator and the Director had failed to take into account relevant consideration / had taken into account irrelevant considerations;

(5) Irrationality in that there was no or no sufficient basis for the decisions of both the Adjudicator and the Director that the Applicant would face no risk of torture if he is returned to Bangladesh.

DISCUSSION AND CONSIDERATION

GROUND 1

20. Ground 1 is against the Adjudicator only.  He was alleged to have failed to seek clarification at oral hearing on matters requiring clarification.

21. In the present case, the Adjudicator had conducted an oral hearing before he dismissed the appeal / petition.  He said :

“In order to be fair to the (Applicant), an oral hearing was conducted so as to enable (him) to have a chance to supplement what he had stated in the Non-refoulement or Torture Claim Form, the records of interview and the part relating to him in the Notice of Decision and at the same time enable the Immigration Officer and me to ask him questions to clarify what he had stated. He stated that apart from those documents he had nothing further to add.”[3]

22. The Adjudicator made the following adverse findings against the Applicant[4] :

(1) When he gave evidence he was evasive on two matters;

(2) He gave two different versions on two other matters;

(3) He was prepared to lie to achieve his aims, two examples were given;

(4) His behaviour was inconsistent with behaviour of someone who genuinely wanted to seek protection.

23. Mr Leung submitted that in finding the Applicant incredible the Adjudicator did not act fairly and did not give the Applicant an opportunity to offer an explanation to the points that were ultimately going to be used against him in assessment.  It was unfair in particular as the Applicant was not legally represented at the appeal hearing. 

24. Criticism was levelled at each of the matters mentioned by the Adjudicator in his Decision.

25. Mr Leung submitted that if there were discrepancies or matters which caused him concern, the Adjudicator should seek clarification or present the discrepancies to the Applicant to provide him fair opportunity to explain.  He also pointed out that the Adjudicator had failed to make an overall assessment of all the relevant circumstances of the case.  There was a criticism that the Adjudicator refused to inquire and chose to sit back and speculate. 

26. It is trite that high standards of fairness are required in the process.  In Prabakar[5] and ST[6], it was held that procedural fairness requires that if the decision-maker if minded to make a finding of facts adverse to the torture claimant, the latter should be given an opportunity of stating his answer to it.  Judging from the content of the Decision, the Adjudicator could have demonstrated compliance with more vigour.  The submission of Mr Leung that the Adjudicator did not make an overall assessment of all the relevant circumstances of the case before he found the Applicant incredible also has considerable force.  I also accept that it may not be apt to describe as a “lie”, as the Adjudicator did, that the Applicant only lodged his torture claim almost 4 years after he had arrived in Hong Kong, the fact was, however, a matter the Adjudicator was entitled to take into account.

27. The exercise of determining a torture claim is a “joint endeavour’ of the torture claimant and the decision-maker.  While the decision-maker should adopt an ‘active role’ and is ‘not permitted to simply sit back and put the torture claimant to strict proof of his claim’, it does not mean a torture claimant can ‘sit back and require the decision-maker to disprove his claim’. 

28. More importantly, this is not a case where credibility assessment was determinative of the decision.  Whilst the Adjudicator said that “for his lies, inconsistencies and reluctance to give answers, his application ought to be dismissed”,[7] obviously he did not base his decision simply on assessment of credibility.  He said clearly later that “notwithstanding his credibility had been analysed and not in his favour, I still have to assess his non-refoulement claim to torture risk, risk of torture or CIDTP and persecution risk to see if his case came within any of the (these)  grounds”[8].

29. On a fair reading of the whole of his Decision, I do not consider the finding on the Applicant’s credibility has material impact on the ultimate decision of the Adjudicator.  Indeed, notwithstanding the Adjudicator’s finding on credibility, the decision had been made on the factual basis asserted by the Applicant.

30. For the purpose of determining whether leave should be granted to apply for judicial review, the Applicant must show that his grounds of judicial review are reasonably arguable with a realistic chance of success.[9]

31. In the circumstances of this case, I do not consider leave to apply should be granted on this ground. 

GROUND  2

32. By Ground 2, Mr Leung alleged that both the Adjudicator and the Director had committed error of law / misdirected themselves in law.  This ground contains certain topics.

TOPIC  A

33. Mr Leung submitted that the Adjudicator committed an error of law in that he failed to treat the appeal as a rehearing of the Applicant’s case.  That the appeal is of the nature of a rehearing has been established in AM v Director of Immigration & Another[10].  Mr Leung submitted that the Adjudicator failed his duty to inquire into the country conditions of Bangladesh and did not make his own independent assessment of the conditions.

34. Relying on AM[11], Mr Leung submitted that the Adjudicator should have obtained all relevant country of origins information and made the assessment himself, including that in relation to the concept of state acquiescence.  What the Adjudicator was alleged to have done was simply copying the relevant paragraphs regarding the country conditions from the Director’s Decision[12]. It indicates the failure to make independent enquiry.

35. It is true that some information was quoted by both the Adjudicator and the Director, however, I cannot agree that what the Adjudicator did was just a copy and paste exercise. There is in existence information in the Adjudicator’s Decision which was not quoted by the Director.  Besides, the fact that in both Decisions similar information was quoted does not necessarily mean that the Adjudicator did not make independent enquiry.  If both the Adjudicator and the Director found a same piece of factual information carries a significant degree of relevance and weight, it is not surprising that both saw fit to quote it. 

36. Judging from the reasoning provided in the two Decisions, I do not consider there is basis to say that the Director and the Adjudicator, in particular the latter, did not make his own independent assessment and judgment on the matter.

37. Mr Leung also pointed out that the Adjudicator had referred to newspaper reports[13] which provide information in favour of the government without disclosing to the Applicant the nature and source of such information.  In AM, it was remarked that it would be better if the source of such information could be indicated clearly.[14]  Assuming that the Adjudicator had not adopted this better course, in my judgment this is not a matter which, in the context, is by itself so material as to raise a public law ground to apply for review.  I am not of the view that the other information quoted is insufficient or not relevant for the purpose of the Adjudicator’s enquiry into the concept of state acquiescence, both in the traditional and extended forms. 

Topic  B

38. Mr Leung submitted that both the Adjudicator and the Director erred or misdirected themselves on the meaning of state acquiescence. They had only considered the active form of state acquiescence but not passive or extended acquiescence as stated in AM[15].

39. I agree that passive or extended acquiescence should be considered in the present case, I cannot see any expressed finding by either the Adjudicator or the Director on this issue.

40. Leave to apply is granted on this topic.

TOPIC  C

41. Mr Leung submitted that the Adjudicator and the Director erred or misdirected themselves on the meaning of “severe physical or mental suffering”.

42. Relying on A v Director of Immigration[16], Mr Leung stressed that in the context of torture, pain or suffering can be physical as well as mental.  His submission is that both the Adjudicator and the Director had reached their decision only on the basis that the Applicant had not suffered any severe pain and suffering in the past, and failed to consider mental pain and suffering. [17] It was under a firm belief that he would be killed eventually, or that the harass on him would not stop, that the Applicant fled the country.  In the light of his experience before fleeing the country, the Applicant was in real fear that he would be tortured or killed if he returns to Bangladesh.  Such a death threat is a mental suffering of such a level of severity that it amounts to torture.  Both the Adjudicator and the Director had failed to consider this.

43. Again, I cannot see any expressed finding by either the Adjudicator or the Director on this issue which purportedly had arisen.

44. Leave to apply is granted on this topic.

TOPIC  D

45. Mr Leung submitted that the Adjudicator erred or misdirected himself in rejecting the Applicant’s credibility by failing to consider his evidence as a whole.

46. Even though the Adjudicator did not say he had considered the whole of the evidence (he was not obliged to say it explicitly), it does not appear to me that he had not done so. 

47. In any case, for the line of reasons which I have stated in paragraphs 28 and 29 above, I do not consider it justified to grant leave on this topic.

GROUND  3

48. Mr Leung submitted that both the Adjudicator and the Director were procedurally improper as both of them failed to make sufficient inquiry into the case of the Applicant including the relevant country conditions of Bangladesh.

49. Both the Adjudicator and the Director had quoted extensively information relevant to the conditions of the country.  Mr Leung had also quoted information contained in various reports and submitted that if the Adjudicator and the Director had made sufficient inquiry and assessment of the situations, they should have reached a different conclusion.  I am not persuaded that insufficient relevant inquiry had been made.  In my judgment, subject to my observation in relation to Topic B, the decisions made are not unreasonable. 

50. Mr Leung also submitted that the Adjudicator and the Director had failed to give sufficient reasons for his respective Decision. I do not agree to this submission.  I agree to Mr Leung that expressions such as “a bare assertion that the case has been reviewed” or “all information has been concluded” fall short of satisfying the requirements of natural justice, let alone high standards of fairness, it is not the case here.  What depth or width the reasons should carry depends on the circumstances of individual cases.  In Prabakar[18], Chief Justice Li said :

“Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable to potential deportee to consider the possibilities of administrative review and judicial review.”

51. In my judgment, the reasons provided cannot be said to be inadequate, in any case it is not a situation that intervention by way of judicial review is called for.

52. I do not consider leave should be granted on this ground.

GROUND  4

53. Mr Leung submitted that the Adjudicator had failed to take into account and / or give proper weight to relevant considerations and materials, so had the Director.  In this regard, what relied upon in advancing Grounds 1 – 3 were repeated in his submission.

54. Mr Leung also submitted that the Adjudicator and the Director had taken into account irrelevant matters, such as the fact that the Applicant had encountered no problem upon attempting to leave Bangladesh via proper Immigration checkpoints, nor had he been arrested, detained or otherwise imprisoned.[19]

55. I do not agree to these observations.  Each matter of course carries different weight and has its relevance to different issues to be considered.  It was up to the Adjudicator and the Director to decide what weight to be attached on each matter and at the end made his own decision.  On the whole, I do not consider this ground reasonably arguable. 

GROUND  5

56. This is a catch all ground.  As leave is granted on Topics B and C of Ground 2, I also grant leave on this ground, but only on the basis that Topics B and C of Ground 2 are reasonably arguable.

CONCLUSION

57. Leave to apply for judicial review is granted in relation to the decision of both the Adjudicator and the Director on Topics B and C of Ground 2 , as well as on Ground 5 but only on the basis that the abovesaid two Topics are reasonably arguable.

58. Leave is also granted for extension of time. The Director is at liberty to apply to set aside this leave.

59. Costs be reserved.

[1] Mr Wesley Wong.

[2] Cap. 4A, Laws of Hong Kong.

[3] Paragraph 17 in the Decision.

[4] See paragraphs 18 – 21 in the Decision.

[5] [2005] 1 HKLRD 289, at paragraph 54.

[6] [2014] 4 HKLRD 277, at paragraphs 25 and 39.

[7] Paragraph 22 in the Decision.

[8] Paragraph 26 in the Decision.

[9] See Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, paragraphs 12 -16 of the judgment.

[10] [2014] 1 HKC 416, at paragraphs 28 – 30.

[11] Paragraph 121 in the judgment.

[12] Paragraphs 23 – 24 of the Decision of the Adjudicator and paragraphs 71 and 73 of the Decision of the Director.

[13] Paragraph 24(g) in the Adjudicator’s Decision.

[14] Paragraph 73 in the judgment.

[15] Paragraph 60 and 61 in the judgment.

[16] HCAL 69/2012, paragraphs 105 – 106.

[17] Paragraph  86 of the Director’s Decision and paragraph 37 of the Adjudicator’s Decision were quoted.

[18] [2005] 1 HKLRD 289, at paragraph 51.

[19] Paragraph 32 in the Adjudicator’s Decision and paragraph 87 in the Director’s Decision.