KM AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 219/2019

[2020] HKCFI 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 219 of 2019

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  Leave to apply for judicial review be granted;

2.  Costs of the Applicants be in the cause of the application; and

3.  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.  The first three Applicants are respectively wife, husband and their elder child (“A1”, “A2” and “A3”) who are all nationals of Rwanda who arrived in Hong Kong on separate occasions in 2015, and when they were refused entry they raised a non-refoulement claim on the basis that if they returned to Rwanda they would be harmed or killed by the ruling political party Rwandan Patriotic Front (“FPR”) as A1 was a member of the opposition party United Democratic Forces of Rwanda (“FDU-Inkingi”). They were subsequently released on recognizance pending the determination of their claim, during which A1 gave birth to their younger child, the 4^th Applicant (“A4”) in Hong Kong and for whom a non-refoulement claim was also made on the same basis as above.

2.  A1, now aged 37, is of Hutu ethnic and was born and raised in Cyangugu, Rusizi, Rwanda. After receiving a secondary school diploma, she worked in the clothing business in Kigali, Rwanda, and joined FDU-Inkingi mainly responsible for recruiting new members for the party.

3.  In 2010 the president of FDU-Inkingi, Victoire Ingabire Umuhoza, who had been in exile in Europe, returned to Rwanda as the main candidate for the August 2010 presidential election, but soon she was arrested by the Rwandan government for conspiracy against the country and was subsequently sentenced to prison.

4.  Meanwhile one day in May 2011, after attending a party meeting in Gisenyi and on her way back to Kigali, A1 and three other members of FDU-Inkingi were abducted by some unknown men suspected to be members of the ruling party FPR and were brought to a place in Kigali known to be where FPR used to interrogate and torture their opponents.

5.  There A1 and her fellow members were kept inside a small room for the next 28 days where they were interrogated for information concerning their party and its activities, during which they were given little food or water, and were beaten daily with clubs and sticks and were sprayed with high pressured cold water that one of A1’s fellow members was eventually so severely beaten that she was left to die whilst in detention.

6.  After 28 days of detention and daily torture, A1 and her two remaining fellow members succumbed to their abductors’ demand to bear false witness against their own party president for obtaining and supplying weapons to the rebel group Democratic Forces for the Liberation of Rwanda active in Congo with the aim to incite Congo to start a war in Rwanda so as to overthrow the government, and were released after each had signed a confession accordingly.

7.  However, two days later after her release, five suspected FPR members stormed into A1’s home in the middle of the night and ransacked her place, and when she tried to stop them, they beat her and pushed her out of the window before making away with her travel documents and other documents in connection with her activities in FDU-Inkingi.

8.  After the incident and when the local police refused to help, A1 fled from Kigali to hide in her home village in Cyangugu, where she met and subsequently married A2 who was a motor vehicle mechanic with no particular political affiliation. After A1 gave birth to their elder child A3, the family moved to Village Bukavu in Congo in March 2012 to avoid any further threats from the FPR people.

9.  In April 2014 thinking that it would be safe to return to Rwanda, the family returned to Kigali where A1 re-established her clothing business. One day in June 2014, she was served with an arrest warrant and court summons for being a member of FDU-Inkingi, and fearing that she would be unfairly prosecuted by the authorities, A2 advised that she should run away with their son to hide in his friend’s place in Gitarama.

10.  However, 2 days later they were abducted by people from the CID, a department in criminal investigation, and were brought to a secret place in Kami where A1 was beaten and tortured during which one of the men tried to insert an object into her vagina which she put up a fierce resistance that eventually she passed out. When she woke up, she found herself in Kigali Main Hospital and was kept there for treatments to her injuries including bleeding in her vagina.

11.  Upon her discharge from the hospital, and fearing that the CID people would come after her again, A1 moved with her son to Byumba at the border between Rwanda and Uganda to take shelter in a friend’s place, while A2 remained working in Gitarama, but soon he started to receive threatening phone calls from some unknown men accusing him of marrying a wife who was anti-government.          

12.  Fearing that it was no longer safe to remain in Rwanda, A2 therefore went to join his wife and son in Byumba, and with the assistance of a friend who worked for the government at the border check-point they decided to depart separately from Rwanda on 24 March 2015, with A1 and A3 departing together for and arriving in Hong Kong on 26 March 2015, but when they were refused entry, they then went to Mainland China where they stayed for several weeks before returning to Hong Kong on 15 April 2015 claiming to be in transit for Addis Ababa, but when they did not board that flight and tried to enter Hong Kong on the next day on 16 April 2015, and when they were again refused entry by the Immigration Department, they then raised their non-refoulement claim for protection, for which A1 completed a Non-refoulement Claim Form (“NCF”) for herself and A3 on 2 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

13.  As for A2 who was to leave Rwanda on the same day of 24 March 2015 a few hours after his wife and son had departed, he was however detained by the security people and was interrogated as to the whereabouts of A1 and A3, but when he refused to disclose their whereabouts, he was beaten and tortured including being hit on the soles of his feet with thick plastic wires. On the next day he was hooded and taken to a prison where he was beaten again and was not given any water.

14.  Eventually A2 collapsed from the torture and was taken to the Kigali Hospital where he was diagnosed to have liver problem. Subsequently he was able to contact a friend who was a high-ranking soldier who managed to help him to escape from the hospital for the boarder when he departed Rwanda on 26 April 2015 for Tanzania, and from there he subsequently flew to Hong Kong on 21 August 2015, and when he was also refused entry, he raised his non-refoulement claim for protection, for which he completed his NCF on 3 November 2015 and also attended screening interview before the Immigration department with the same lawyer as his wife and son from DLS as it was agreed that his claim was to be assessed with that of A1 and A3 jointly together.          

15.  By a Notice of Decision dated 20 June 2016 the Director of Immigration (“The Director”) rejected the claims of A1, A2 and A3 on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Claim”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

16.  In his decision the Director took into account of all the relevant circumstances of the claims of A1, A2 and A3 and assessed the level of risk of harm from FPR upon their return to Rwanda as low due to the low intensity and frequency of past ill-treatment from them, that their claim is rife with credibility issues, that in any event having been served with the arrest warrant and summons A1 should answer them properly by attending to the summons in court instead of running away from her obligation as a citizen, that while reliable and objective Country of Origin Information (“COI”) do show concerns about human rights condition in Rwanda with impunity of the government and unsatisfactory prison condition, they also show that the authorities have put measures in place for the police and the court system to improve their effectiveness with alternate avenues to seek justice and that political rights amongst citizens are also generally respected in Rwanda, that state protection would be available to them if resorted to, and that reasonable internal relocation alternatives are available in Rwanda with a large population of 12 million people spread across a vast territory of more than 24,000 square kilometers that it would not be unduly harsh for A1 and A2 as able-bodied adults with working experience to move with A3 to other part of Rwanda away from their home district in large cities such as Cyangugu or Byumba where it would be difficult if not impossible for those FPR people to locate them.

17.  While released on recognizance pending determination of the claims, A1 on 28 November 2016 gave birth to their second son in Hong Kong, the 4^th Applicant (“A4”), and for whom A1 also raised a non-refoulement claim on the same basis as hers and completed a NCF for him on 29 September 2017, and by a Notice of Decision dated 28 November 2017 the Director rejected his claim on all the applicable grounds and including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 being violated including right to life under Article 2 (“BOR 2 Risk”) for the same reasons as above. 

18.  By a Notice of Further Decision dated 27 November 2017 the Director also rejected the claims of A1, A2 and A3 upon receiving and considering additional facts and documentary evidence from their lawyer relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including their BOR 2 Risk.

19.  By then A1, A2 and A3 were already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which was filed on 4 July 2016, and on 11 December 2017 they also filed an appeal for A4 against the Director’s Decision of 28 November 2017. Their appeals were consolidated for consideration together by the Board, for which they attended an oral hearing on 5 July 2018 before the Board with their lawyer from DLS, during which A1 and A2 gave evidence and answered questions put to them by the Adjudicator for the Board and with submissions made on their behalf by their lawyer. On 2 November 2018 their appeals were dismissed by the Board which also confirmed the decisions of the Director.

20.  In its decision the Board found both A1 and A2 were dishonest and unreliable and that their asserted story was destroyed by unreliability, that a common feature in all 4 Applicants is the lack of serious ill-treatment and/or serious harm which are required elements in non-refoulement law whether under Torture or BOR3 or BOR2 or Persecution, and that none of them had established any substantial risk or basis of fear of same that their claims failed on all applicable grounds.   

21.  On 23 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as amended for their intended challenge:

(1)   That the Adjudicator unfairly relied on speculation and assumptions to arrive at adverse credibility and reliability findings;

(2)   That the adverse credibility findings were premised on unfair and irrational assessment of material evidence;

(3)   That the Adjudicator relied on other irrational findings in the assessment of credibility;

(4)   That the Adjudicator failed to take into account relevant facts in his assessment of the behavior of the Applicants in the context of credibility;

(5)   That the Adjudicator misdirected himself on the law with respect to assessment of political opinion;

(6)   That the decision was based on a misdirection of law with respect to assessment of pain and suffering;

(7)   That the Adjudicator’s assessment of the pain and suffering of the Applicants was irrational and unreasonable; and

(8)   That the decision was based on a misdirection in law with respect to failure to consider whether prosecution amounts to persecution.  

22.  The Applicants have since been granted legal aid for their application, with Mr Timothy Parker assigned as Counsel who attended the ex-parte hearing for the Applicants on 12 December 2019.

23.  For the Applicants’ proposed grounds for judicial review of the Board’s Decision, I shall for convenient purpose consider Grounds (1) – (4) together which are all related to the Board’s credibility assessments of their claims, while Grounds (6) & (7) which relate to the assessment of pain and suffering can also be considered together.

Grounds (1) – (4): Unfair, Unreasonable and Irrational Findings and Assessment on Credibility

24.  In the Board’s decision on the credibility assessment of the Applicants’ claims, the Adjudicator first provided under the sub-heading of “Unreliability” the following overview:

“ 5.1  An analysis of the alleged facts will appear later. But from the outset it is important to view the alleged case in perspective, which shows the claim to be woefully lacking, i.e. the features in the story make it unreliable to be accorded with evidential weight. A further feature common to all 4 Appellants is the lack of serious ill-treatment and/or serious harm which are required elements in non-refoulement law whether under Torture or BOR3 or BOR2 or Persecution. I realize that A1 disputed the Director’s finding in this regard, but a contused shoulder which recovered by itself after 2 days without medical treatment from a doctor (“Incident 2”), and mere physiotherapy and medication (“Incident 3”) do not indicate severe injury and serious harm. As to A2, he only needed an antibiotic as medical treatment, which again did not indicate major medical treatment or severe injury or serious harm (in fact hepatitis was an infectious disease, not traumatic, i.e. it was not an injury) for the purpose of non-refoulement law. On the requirement of future risk of “serious ill-treatment or severe injury or serious harm” none of the Appellants has established any substantial risk or basis of fear of same, and so the appeal must be dismissed. But even if I am wrong there is more below.”

25.  The Adjudicator then proceeded to analyze A1’s claim as unreliable as follows:

“ 5.2  A1 alleges brutality (“Incident 3”) but she was taken to Kigali Main Hospital, which is inconsistent with the intention to kill on the part of her alleged abductors. To say that they would want to inflict serious harm, yet take her to hospital for treatment (NB: She was suffering from high vaginal bleeding, as discussed above) defies common sense. I find the thesis that she had gone to hospital because of assault in “Incident 3” totally unreliable.

5.3  Furthermore, if the FPR people or the authorities had wanted to inflict serious harm for the purpose she alleges (viz to name the person in charge of the meeting in May 2011 and to testify against Ingabire of the FDUI), to say that they would send her to the Kigali Hospital without putting her under guard but had allowed her to be discharged free, defies common sense …

…

5.5  A1 says she was harbouring grave fears for her life when she left Rwanda (and Uganda), but for a long 2 years from March 2012 to April 2014 she did not do anything to seek help from anyone when in Congo (in Bukavu).

5.6  When in the Hong Kong Airport on 14 April 2015, A1 claimed to be on transit to Addis Ababa, yet neither she nor A3 ever boarded the stated flight, showing dishonesty: Section 37ZD(3) of the Ordinance.”     

26.  As for A2’s claim, the Adjudicator found it equally unreliable for the following reasons:

“ 5.7  A2 says he was detained and beaten when attempting to cross the Rwandan border into Uganda, and was given lunch albeit salty and oily, but somehow he was sent to hospital for treatment which, if the incident had truly occurred, meant that the men had not wanted to kill him as he now claims.

5.8  Furthermore, A2 says that while he was (as he says now still is) wanted by the Rwandan authorities, somehow he was able to use the telephone in hospital and he secured this mysterious “high ranking soldier friend” who could obtain his passport and arrange smooth passage for him to go into Tanzania, at a time when he says he was a “wanted person”, which defies common sense.

5.9  Given A2 says he was harbouring grave fears for his life when he left Rwanda, he nevertheless did not seek any help from anybody when in Tanzania despite a lengthy 4 months.

5.10  A2 says he was wanted by the Rwandan government because he was married to A1. But he has never participated in any political activity. He was only working as a motor mechanic and as a driver. Even on his own version he had never been interested in politics. There is simply no logical basis for the Rwandan government to arrest him as a wanted person, let alone for Torture or CIDTP or Persecution. The story is illogical and defies common sense.

5.11  The warrant for A1’s arrest has long expired pursuant to Rwandan statutory law – it was issued in June 2014 and has now in fact expired for 4 years, hence has no basis to generate fear: see Refworld: Law No.13 of 2004 relating to the Code of Criminal Procedure: Article 48 Organic Law no.20/2006 of 22/04/2006 (Ministry of Justice, published 17 May 2004; accessed 08 January 2018)  … Duty Lawyer did not dispute the citation above, but submits that on A1’s instructions the warrant would not expire until it is executed: but she has cited no authority to counter the cited Code of Criminal Procedure above. The submission is a bare assertion not supported by any evidence.”  

27.  After having referred to various COI, the Adjudicator made the following observations regarding situations in Rwanda and its government:

“ 5.13  The above COI shows that, although the Rwandan Government is intolerant over the opposition, one must take notice that (1) in non-refoulement law, general country situations do not advance a claim unless there is personal encounter: RS CACV 206/2012, Gallolu Kankanamalage Nimal Perera v Director of Immigration Petition Team CACV 215/2012, (2) even if A1 (or A2) should be arrested and put to trial, there is a system of fair trials in Rwanda, (3) at the very most A1 was a mere supporter of the FDUI who had never been a forefront runner for a political position against the FPR, less still is A2 involved in any politics, and (4) as can be seen from the COI, even forerunners for political positions against the FPR have not been tortured or killed by the Rwandan Government, therefore the risk of serious harm to A1 or A2 (or A3 or A4) is remote and far from being substantial as required by law.

5.14  The COI of Rwanda does not support the thesis of Torture or CIDTP or Persecution because A1 is a mere supporter (affiliator) of the FDUI and a mere businesswoman selling children’s clothes from her own shop.

5.15  Of significance against the Appellants’ story is the fact that A1 produces a letter headed “To Whom It May Concern” written by Sylvain Sibomana who is General Secretary of FDU-Inkingi (dated 17 February 2912) from address “Kigali, Rwanda”, printed with telephone number 250 72863600. The writer certifies that A1 was a Member of the FDU-Inkingi. The letter has obviously been produced for the purpose of strengthening A1’s story, but in generating the letter A1 has overlooked the fact that even the General Secretary of the FDUI living in Rwanda has not been killed, while A1 would like us to believe that a mere member will be killed (if she was really a member). The letter heavily erodes into A1’s (hence also A2’s) reliability.”

28.  The Adjudicator then proceeded to arrive at the following conclusions regarding the Applicants’ claim:

“ 6.1 Having studied the whole case and the Appellants’ responses in the Duty Lawyer’s submissions, I find their story unreliable.

6.2  A1 is dishonest and unreliable: (1) she fabricated a story of assault and used a hospital certificate after going to hospital for a reason unrelated to her story of assault, using same to boost her story, (2) caused a letter to be written and produced by the General Secretary of the FDUI in order to say that she was a Member under threat of being killed, (3) dishonestly represented to the Hong Kong Immigration official as being “in transit to Addis Ababa” but did not board such a flight, (40 says her trip to Addis Ababa (capital of Ethiopia) was for her safety but she did not go, (5) says Addis Ababa was safe but decided to enter Hong Kong instead, and (6) when she knew she was refused permission to enter Hong Kong she used a non-refoulement claim in order to enter. The COI cited above, together with the letter from the General Secretary of the FDUI, taken in combination, make her asserted story woefully unreliable.

6.3  As to A2, he is dishonest and unreliable: (1) he says he is at risk despite the fact that he has had no interest in politics and has never participated in any political activity, but fabricated a story that he was disliked by the government only because he was A1’s husband, which is illogical and defies common sense, (2) he went to hospital because of hepatitis (infectious disease of the liver) when he says the beatings were to the soles of his feet, and (3) dishonestly used the hospital certificate showing “hepatitis” to “prove” his story of brutality, obviously not expecting that the content of the hospital certificate would be examined regarding medical content.

6.4  The Appellants’ asserted story is destroyed by unreliability. The appeal is dismissed, and the decisions of the Director, dated 20 June 2016 and 27 November 2017, are hereby confirmed.”    

29.  The Applicants’ case is that the entirety of the Adjudicator’s analysis as to the credibility and reliability of their claims and the conclusion reached is flawed and irrational, as those adverse findings, in particularly of “dishonesty”, are completely without any basis or foundation in evidence, and instead they were based on a series of speculative assumptions unsupported in the evidence and are illogical, and of which the Adjudicator did not provide any adequate explanation as to how he came to such a view.

30.  Mr Parker submits that the Adjudicator’s approach to assessing credibility is contrary to internationally recognized principles on a proper credibility assessment, as where an adverse credibility finding is made by a decision-maker, there must be a basis or foundation in the evidence, and that the decision-maker is not entitled to base adverse credibility finding on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition or ‘gut feeling’, as the Adjudicator did in dismissing the Applicants’ account in favour of wholly speculative findings and unsupported assumptions on holding the following:

(a)  The possible causes of medical conditions, including A1’s “high vaginal bleeding”, and A2’s diagnosis of hepatitis;

(b)  The motivations and operations of the Rwandan government, including the government’s intentions regarding A1 and A2;

(c)  The regime’s impetus in targeting A1, a ‘mere member’ of FDU-Inkingi, and A2, a person ‘who has never participated in any political activity’;

(d)  The ability of Rwandan authorities to reissue warrants, without any consideration of the principles of foreign law (by way of independent research or commissioning of experts on Rwandan law). 

31.  Mr Parker therefore submits that it was wrong in principle for the Adjudicator to reject the entirety of the Applicants’ detailed claims, which were amply supported by unchallenged documentary evidence, based on his assumptions about how the Rwandan authorities would act in these circumstances.

32.  Furthermore, Mr Parker submits that the Adjudicator wrongly approached the facts through the prism of his own experience, assumptions, and speculation, as shown by the following aspects of his decision:

(a)  That it “defies common sense” that A1’s abductors would take her to Kigali Main Hospital “which is inconsistent with the intention to kill on the part of her alleged abductors …” (§5.2);

(b)  That it also “defies common sense” that A1 would be sent to hospital without being put under guard, and to be discharged by the hospital after treatment (§5.3);

(c)  That A2 was given food and sent to hospital for treatment during his detention, “meant that the men had not wanted to kill him as he now claims” (§5.7); 

(d)  That it “defies common sense” that A2 would be able to arrange “smooth passenger” for him to go into Tanzania as a wanted person (§5.8);

(e)  That there is “no logical basis” for the Rwandan authorities to target A2 given that he had never participated in any political activity (§5.10); and

(f)  That A1’s ability to obtain a letter from the General Secretary of the FDU-Inkingi is Implausible because he is “openly accessible” and “has not been killed” (§6.2).

33.  Mr Parker argues that it is evident from the above that the Adjudicator did not conduct an objective or fair assessment about the plausibility of the Applicants’ claims at all, as he simply asserted that key aspects of the claims were not believable without any basis at all for that assertion.

34.  Nor did the Adjudicator, Mr Parker submits, fairly and properly assess key documentary evidence submitted by the Applicants, and wrongly dismissed this evidence on the basis of purely speculative findings, and hence his conclusions that they were “dishonest” and “unreliable” were irrational.

35.  Those documentary evidence include the following:

(a)  A summons issued by the National Police of Rwanda dated 9 June 2014 requiring A1 to appear before Muhima Police Station [HB/1/197];

(b)  A Notice of Wanted Person issued by the Prosecution Department of the Circuit Court of Nyarugenge dated 30 July 2014 against A1 stating that she is wanted for the offences of “spreading rumours aiming at inciting the public to rise up against the state” [HB/1/201];

(c)  A temporary arrest warrant issued by the Circuit Court of Nyarugenge dated 23 June 2014 against A1 on the said charge as above [HB/1/195];

(d)  A subpoena to A1 issued by the Prosecution Department of the Circuit Court of Nyarugenge dated 23 July 2014 requiring her to attend court to be heard on the said charge [HB/1/200];

(e)  A1’s Medical Certificate issued by University Hospital Center of Kigali dated 2 January 2015 in which it was stated that she has been “Tortured by unknown people”, that “She has been seriously injured”, and has “High vagina bleeding” [HB/1/193-193a];

(f)  A letter from the General Secretary of FDU-Inkingi, Sylvain Sibomana, dated 17 February 2012 confirming inter alia that A1 is a member of the FDU-Inkingi and that she was tortured and is targeted by the Rwandan authorities as a result [HB/1/194];

(g)  A2’s Medical Certificate dated 13 April 2015 diagnosing him with inter alia hepatitis [HB/10/194]; and

(h)  Marriage Certificate of A1 and A2 dated 28 September 2011 [HB/10/430].

36.  Mr Parker submits that these documentary evidence supported the following important elements of the Applicants’ claims but which the Adjudicator had irrationally dismissed without any or proper evaluation or assessment:

(a)  A1’s membership and active support in FDU-Inkingi;

(b)  That she was identified and targeted by the Rwandan authorities with charges which she claims to be false;

(c)  That these allegations/charges were brought against A1 because of her political affiliations and activities; and

(d)  That both A1 and A2 sustained physical injuries and adverse health conditions as a result of their reported detention, torture and assault. 

37.  Mr Parker also submits that the Adjudicator’s findings involve a misapplication of the burden and/or standard of proof in that he resolved points of apparent doubt or ambiguity against the Applicants at every turn, and is thus an erroneous application of the burden and standard of proof which amounts to an error of law.

38.  In assessing of and making credibility finding in claims for refugee protection by a decision-maker, the Immigration and Refugee Board of Canada, Legal Services Refugee Protection Division, “Assessment of Credibility in Claims for refugee Protection”, dated 31 January 2004, Section 2.1.1 provides that when assessing the credibility of a claimant, all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, while Section 2.1.2 provides that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.

39.  In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated [Section 2.1.2].     

40.  Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings: see UNHCR, “Beyond Proof: Credibility Assessment in EU Asylum Systems”, May 2013, p.41.

41.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him or her, as provided by the UK Home Office in its guidance set out in Asylum Policy Instruction: Assessing credibility and refugee status, version 9.0, 6 January 2015 at Section 5.6.4:

“ Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

42.  In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behavior and responses on the part of the claimant which run counter to what would be expected; and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at interview.

43.  Such views and approach have been adopted by the Hong Kong Courts, and in ST v Betty Kwan [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a protection claim when it stated at §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. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

44.  As pointed out by the Applicants, it has also been recognized that authoritarian states can act in unpredictable ways, and in a manner that defies apparent logical analysis, as it was stated in RAA v The Secretary of State for the Home Department, Upper Tribunal, PA/07424/2018, 31 May 2019 at §33, citing Abdul Omar Suleyman v The Secretary of State for the Home Department 16242 (1998):

“ It is clear to us that a repressive regime … may well act in ways which defy logical analysis. A person who is genuinely a victim of such a regime may well find that the partial account he is able to give of its activities as they have affected him is not something which will stand up to a strictly logical analysis. The regime may seem to govern by confusion; it may engage in other activities, of which the Appellant knows nothing; it may simply behave in a way which a person sitting in safety in the United Kingdom might regard as almost beyond belief.”

45.  In Y v SSHD,supra, Keene LJ observed at §25:

“ There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘  An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’ ”  

46.  In the present case, the Applicants argue that this is precisely what the Adjudicator did in the Decision by wrongly approaching the facts through the prism of his own experiences, assumptions and speculation as noted above, nor did he conduct an objective or fair assessment about the plausibility of their claims or with a proper assessment of the documentary evidence submitted by them before the Board, thereby arriving at such findings on the credibility of their claim that are unfair, unreasonable and irrational. 

47.  In the premises, and given the ways the Adjudicator had dealt with the credibility assessment of the Applicants’ claims as set out in his Decision and as noted above, it is in my view that Grounds (1) – (4) of the Applicants are reasonably arguable for their intended challenge.

Ground (5): Error of Law in Assessment of Persecution on Political Opinion

48.  This Ground argues that the Adjudicator erred in his finding of no logical basis for the Rwandan government to arrest A2 as a wanted person and that his story was “illogical and defies common sense”, as the Applicants submit that there is nothing whatsoever illogical or improbable about a repressive regime persecuting the husband or wife of a political dissident, that the regime may do so as a means of getting information about the spouse’s whereabouts or activities, as was their case here, or simply as a means of trying to crush dissent, but nowhere in the Decision did the Adjudicator articulate why this is “illogical and defies common sense”.

49.  On the contrary, Mr Parker submits, that the Applicants’ factual account make a compelling case for a finding that A2 was targeted due to an imputed political opinion, and/or due to his association with his wife, as he had clearly stated in his Answer to Question 35 of his NCF [HB/1/164-168]:

(a)  That he was not targeted and did not suffer any harm until he tried to flee Rwanda with A1 and A3 when he was arrested;

(b)  That A2 was taken in for questioning and asked about his wife’s whereabouts; and

(c)  That A2 continued to be detained and repeatedly tortured because he was not willing to inform on his wife.   

50.  Mr Parker submits that the concept of ‘political persecution’ embraces both a person’s actual opinions as well as those imputed in him by the agent of persecution, and as such the Adjudicator failed entirely to assess A2’s claim as a case of persecution on grounds of imputed political opinion of A1, and that by requiring active political engagement or some sort of leadership position in opposition politics in order to prove political persecution, the Adjudicator imposed an arbitrary and incorrect threshold that is devoid of any legal foundation.

51.  It has in fact been held in Gomez v Secretary of State for the Home Department [2000] (00/TH/02257, 24 November 2000), that it is not necessary to show political action or activity in order to prove persecution on account of political opinion at §24:

“ In order to show persecution on account of political opinion, it is not necessary to show political action or activity, although action activity or conduct may be an important indication of political opinion: UNHCR Handbook para 81. As the Tribunal noted in Orlov (18505) the distinction between political actions and political beliefs is of limited value in asylum law, for a political belief may be manifested in more than one way …”

52.  It is also accepted that political opinion may be express or imputed: see R v Secretary of State for the Home Department ex parte Jeyakumaran (28 June 1985) [1994] Imm AR 45; Adan and Lazarevic v Secretary of State for the Home Department [1997] Imm AR 251; Secretary of State for the Home Department v Patrick Kwame Otchere [1988] Imm AR 21; Asante [1991] Imm AR 78; Duodo (5803); Darko (7315); Quijano (10699); Bobe (10838); Nsimba (13176); Okwu (14518); Boteju (18630); UNHCR Handbook para 80. 

53.  Given the Adjudicator’s finding of no logical basis for the Rwandan government to arrest A2 in the circumstances of his arrest and his connection to A1 as noted above, I agree that this Ground is reasonably arguable for the Applicants’ intended challenge.    

Grounds (6) & (7): Error of Law in Assessment of Pain & Suffering

54.  In these 2 Grounds the Applicants submit that the Adjudicator erred in his finding that their claims did not reveal “serious ill-treatment and/or serious harm” to establish a substantial future risk of serious harm, which is unsustainable as both A1 and A2 had clearly reported being subjected to severe acts of physical and mental abuse but which the Adjudicator did not consider or consider properly at all, and that had they been properly analyzed, they would have been accepted as ill-treatments of sufficient severity to meet the threshold and to constitute persecution, cruel treatment and/or torture.

55.  Mr Parker submits that the Adjudicator’s decision is additionally unsustainable as he assumed that an absence of future risk meant that the Applicants’ claims could not be categorized as sufficiently severe to fall within a protection ground, which he argues is an elementary legal fallacy and contrary to the forward-looking approach involved in determining non-refoulement claims, as a person who has never been the victim of past mistreatment may be at risk of it in the future, while a person who has been a victim of mild mistreatment may well be at risk of more severe mistreatment in the future.    

56.  As a matter of law, there is no requirement for a claimant to show past ill-treatment or severe injury or serious harm in order to establish risk of future harm, as it was held by Hon McWalters J (as McWalters JA then was) in AM v Director of Immigration [2014] 1 HKC 416 when he stated at §119:

“ The reasoning of the Adjudicator suggests that he was of the view that there had to be past exposure to torture in order to establish substantial grounds for believing there is a future danger of torture. I would have quashed the Adjudicator’s decision on this ground as well.”

57.  In ON v Torture Claims Appeal Board/Non-refoulement Claims Petition Office (Unrep., HCAL 663/2017, 18 December 2018), Hon Campell-Moffat J also held as follows:

“ 31.  The Convention does not define “persecution”. The phrases “severe injury” and “serious harm” are not restricted to physical injury or harm. According to Art 9(1)(a) of the EC Council Directive 2004/83/EC, acts of persecution must:

(a)   be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or

(b)   be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in a).

It covers “many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment”.

32.     There is no requirement of past ill-treatment or severe injury or serious harm, in order to establish risk of future harm: AM v Director of Immigration at §§ 118-9 per McWalters J. These may be indicators of future harm but they are not a pre-requisite in order to establish a well-founded fear of future harm.”

58.  In the premises and given the finding of the Adjudicator of no “serious ill-treatment and/or serious harm” in the Applicants’ claims to establish a substantial future risk of serious harm as noted above, I agree these Grounds of the Applicants are reasonably arguable for their intended application.

Ground (8) Error of Law in failure to consider whether Prosecution would amount to Persecution

59.  In this ground the Applicants target the Adjudicator’s finding that the police arrest warrant and court summons served on A1 amount to legal sanctions and hence the Applicants cannot be considered refugees in law as erroneous in that he had fundamentally misapplied the principles of lawful sanction, as Mr Parker submits that a repressive State may well draw on the courts and the justice system as a tool of oppression, using it to carry out what is in truth political persecution, as McHugh J in the High Court of Australia in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 stated:

“ Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason.”

60.  Mr Parker further submits that if it were found that all persons subject to arrest are “fugitives” and cannot be refugees in law, then those facing political prosecutions would be excluded from protection, and that it would also be a nonsensical interpretation of the principles of lawful sanction, because evidence of political arrest and detention is often the strongest and more common evidence of state persecution.

61.  Mr Parker further submits that given the widespread consensus that the current regime in Rwanda is totalitarian and repressive, and as stated in A1’s NCF that the police and court documents ordering her arrest and prosecution is clear evidence that the Rwandan government was acting to suppress dissent and opposition from the FDU-Inkingi and its members, hence in finding that such political prosecutions constitute legal sanction, the Adjudicator erred in the law upon which leave to judicially review the Decision should be granted.

62.  The Adjudicator’s finding on this issue is in paragraph 10 of the Board’s Decision when he stated:

“ On the Appellants’ alleged facts both A1 and A2 had fled Rwanda in order to avoid arrest and the due process of the law. Whether they are innocent or guilty is not for the TCAB to say, but legal sanction is not “Torture” per exclusion within “Element 4”. Furthermore, a fugitive is not a “refugee” under refugee law; see UNHCR Handbook (1979) Chapter II at §56. The Appellants are not entitled to be classified as refugees.”

63.  As pointed out by the Applicants, while the Adjudicator referred to §56 of the UNHCR Handbook for the general principles, he did not proceed to consider the subsequent paragraphs which provide distinction between a ‘refugee’ and a ‘fugitive from justice’ and which should be read together as follows:

“ 56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.

57. The above distinction may, however occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.

58. Secondly, there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well founded fear of persecution”. In such cases the person concerned is a refugee. It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.

59. In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.”

64.  In her NCF A1 clearly stated that those arrest warrant and court summons were “tactics used by the ruling party against me for my political views were different from theirs”. Whether that was indeed the case or not as to the purpose behind those documents served on her, it should have been properly considered and assessed by the Adjudicator, and I agree that Ground (8) is in the circumstances reasonably arguable for the Applicants’ intended challenge of the Adjudicator’s finding that they were not entitled to be classified as refugees.

Leave for Judicial Review

65.  In the premises and for all the reasons given, I conclude that all the Applicants’ proposed grounds have met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I grant leave to the Applicants to apply for judicial review of the Board’s decision based on those grounds, and direct that they shall file and issue an originating summons within 14 days, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

66.  I also make an order that the Applicants’ cost be in the cause of the application, and to be taxed on Legal Aid Regulations.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1