AKTER SALMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2300/2019

[2025] HKCFI 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2300 of 2019

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Leave Application be granted; and

2.  The Applicant to file and issue an originating summons within 14 days of this judgment.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 8 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 1 August 2019 (“Board's Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 13 April 2018 (“Director's Decision”) rejecting the applicant's non-refoulement claim.

2.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 10 December 2024. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Background

3.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

4.  The applicant was a Bangladesh national. She first came to Hong Kong as a foreign domestic helper. Her second employment contract on 24 May 2016 was prematurely terminated and was required to depart on 2 December 2016. She did not depart, and instead overstayed. On 23 October 2017, she was arrested by police for overstaying. On 7 December 2017, the applicant lodged a non-refoulement claim, which was considered under all applicable grounds - the risk of torture, BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3] under the USM.[4] The claim was based on a fear that if refouled, she would be harmed or killed by her husband.

5.  The applicant averred that in 2013, the applicant married the husband through an arranged marriage. After the marriage, she found out that her husband was a big leader of a political party, Awami League, and already had a first wife and a child. Whilst the applicant was living with her, the husband assaulted her almost every day by punching and slapping her. She sometimes lost consciousness and suffered bruises. She later witnessed the killing by her husband of the first wife. The husband also engaged in different kinds of illegal activities including drugs and women trafficking. The applicant was forced to help the husband with the illegal activities. When the applicant refused to cooperate, the husband hit her with a hot iron. After 6 months living with the husband, the applicant escaped to her parents’ home. The husband came to her parents’ home with a group of his friends. They hit her and her parents, who required treatments in hospital. After the husband’s abduction of her niece in March 2014, the applicant decided to come to Hong Kong. The applicant claimed that if she were refouled, her husband would sell, harm or even kill her.

6.  In the Director’s Decision, the Director decided against the applicant’s claim on all the applicable grounds. The Director found that the level of risk and harm from the husband was low. It also found that there was no evidence suggesting that the husband and his friends had acted in any official capacity. Nor were there any involvement of government officials. After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

7.  On 26 April 2019, the applicant attended a hearing before the Board. After the applicant’s rights and the hearing procedure were explained to her at the hearing, the applicant answered the questions raised by the adjudicator for the Board. The applicant adopted the information in her hearing bundle, which she previously submitted as her evidence. In the Board’s Decision, the adjudicator found that the applicant’s general credibility to be doubtful, and that her account of events relating to the ill-treatments by her husband vague and generalized. The adjudicator found that applicant’s evidence not credible. The Board was not persuaded that the applicant gave a truthful and reliable account of her experience during the 6 months when she lived in her husband’s house after the marriage. The Board was unable to attach much weight to the applicant’s assertions of fact in relation to the core part of her case. On her claimed fear of risk of serious harm in the future, the Board concluded that her fear was based purely on her own speculation and hearsay evidence. The adjudicator concluded that he was unable to attach any weight to the applicant’s hearsay evidence or speculation unsupported by credible evidence. While the Board accepted that the applicant did experience domestic violence at the hands of the husband during the period when she lived with him, it rejected the applicant’s account of other experiences including the evidence of being compelled to assist the husband in his illegal activities or the abduction of her niece. The adjudicator did not accept that the applicant’s allegation of the husband assault on the applicant and her parents. The Board believed that the applicant’s evidence that she was admitted to hospital for 1 week was a fabrication. Owing to the general credibility issue, the Board therefore did not believe that the applicant would be subjected to ill-treatment of any sort at the hands of the husband if the applicant were to be refouled. The Board rejected the applicant’s appeal and confirmed the Director’s Decision.

The applicant’s proposed grounds of challenge

8.  In the applicant’s Form 86, the applicant contended that the Board was in breach of procedural fairness and acted in a procedurally unfair manner in dealing with the applicant’s appeal. In her supporting affirmation dated 9 August 2019, the applicant put forward a number of complaints totally 18 paragraphs against the Board’s Decision under the heading ‘Factual Background and Chronology”. The complaints were very badly drafted [5]and I believe they were not drafted by the applicant but by a legally unqualified person. Doing the best I can, I will summarize the applicant’s complaints below.

10.  Since the Board’s rejection of the applicant’s claim was primarily based on its adverse finding on the applicant’s general credibility, it is necessary to therefore briefly discuss the applicable principles for credibility assessment.

Principles Applicable to Credibility Assessment

11.  According to the guidelines laid down in the UNHCR’s[6] “Beyond Proof: Credibility Assessment in EU Asylum Systems” (May 2013 ed), any findings by a determining tribunal must be explained and supported by the evidence, and adverse credibility findings should not instead be based on unfounded assumptions or subjective speculations : supra at p 41:

“Credibility findings have to be explained and supported by the evidence. Where the determining authority finds a lack of credibility, there must be a basis or foundation in the evidence. This derives from the requirement that the assessment of the application must be individual, impartial, and objective. It finds further support in the case law of the European Court of Human Rights, which suggests that the assessment of credibility should be based on the examination of the statements and the documents submitted in support of the claim. The Court further indicated that the credibility of such statements should be questioned only where inconsistencies affect the core of the applicant’s story. Similarly, the Committee against Torture has stated that state authorities must be able to substantiate a finding that a claim is not credible.

Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence. Adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings. ”

12.  The UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-edited 1992) provides guidance to decision-makers in conducting refugee status determination. It instructs that while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and the examiner. In all appropriate cases where the statements are not susceptible of proof, if the applicant’s account appears credible, and unless there are good reasons to the contrary, he should be given the benefit of the doubt: : See paras 195 and 196 of the Handbook.

13.  The Court of Final Appeal (“CFA”) in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at 206 adopted the similar approach on the application of high standards of fairness in the consideration of these types of claims.

14.  The UK Court of Appeal held that when determining 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: see Y v Secretary of State for the Home Department [2006] EWCA Civ 1223.

15.  The credibility assessment discussed in Prabakar has also been applied in ST v Betty Kwan [2014] 4 HKLRD 277:

“39. … high standards of fairness require the Director, or for that matter, the adjudicator to adopt an active role in screening a CAT claim. They are not permitted to simply sit back and put the torture claimant to strict proof of his claim. Depending on the facts, it may be appropriate for them to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant. For instance, where it is readily apparent that something has gone amiss such as the proof documents in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. On the other hand, there may be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention. The exercise of determining whether a torture claim is valid is one of “joint endeavor”. Prabakar, para 54; TK v Jenkins [2013] 1 HKC 526, paras 21, 24 and 25…

40. Secondly, an adjudicator should ask himself whether there is anything in the 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. An adjudicator simply cannot assume, no matter how good the legal representative of the torture claimant may be, that the legal representative (or for that matter, the torture claimant) would be able to foresee all the points that might be troubling the adjudicator after reading the petition and supporting material.

…

42. Another example is where the adjudicator is of the view that a certain factual or legal point is relevant to the determination in question which has not been dealt with adequately or at all in the petition. An obvious situation is where the adjudicator is aware of an important authority on a material point which has been omitted or touched on superficially only in the petition. This is all the more important if the authority is one against the torture claimant. But, even if the authority is in his favour, circumstances may be such that it should still be fairly drawn to the attention of the applicant so that he can, if he wishes, fully develop and make use of the authority and other related cases or matters to his advantage in pursuing his petition.

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.”

16.  Another important matter is the need for a decision maker to assess all the evidence as a whole. In the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection (31 January 2004), it provides that a tribunal, when assessing and making credibility finding in refugee claims, should consider and assess all the evidence (both oral and documentary). It should not just selected portions of the evidence, but should assess all parts of evidence together. 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. 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: See s 2.2.1 and 2.1.2, Assessment of Credibility in Claims for Refugee Protection (supra).

Legal principles applicable to judicial review

17.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

18.  This court will adopt and apply the above applicable principles when considering this Leave Application.

19.  As set out in the Board’s Decision (para 7 above), the adjudicator primarily determined the applicant’s appeal purely on his assessment of the applicant’s general credibility. In the circumstance, I should examine the applicant’s complaint in para 10 of the affirmation (see para 9 (2) above).

20.  In the Board’s Decision, the adjudicator examined the applicant’s claim with reference to several key events: the husband’s killing of the first wife, the applicant’s return to her parents’ home and the assaults by the husband; the hospitalization after the assault and the abduction of the applicant’s niece. After referring to these accounts of events, the adjudicator found that the applicant’s credibility was doubtful (para 62); her assertion “inherently lacked credibility” (para 63) “vague, generalized” (para 64), and that she made up her evidence as she went along (para 67). He found the applicant’s evidence was mostly hearsay and speculative, and thus did not attach any weight to it. The adjudicator then concluded that “I am not persuaded on the balance of probability, that the [applicant] is giving a truthful, and reliable account of her experiences at the hands of [her husband] during the 6 months that she lived in [her husband’s] house after her marriage” (para 68).

21.  The Board’s findings on the applicant’s general lack of credibility are exclusively within the realm of the Board. It is trite that a court in a judicial review will not interfere with. The matter that gives this court concern is the Board’s contradictory finding on the applicant’s credibility. After the adjudicator had rejected (at para 68) the applicant’s account of her experiences during the 6 months she lived with the husband, he then stated that he accepted the applicant’s evidence that the applicant “did experience domestic violence at the hands of [her husband] during the period that she lived with ‘her husband” see: para 74. While the adjudicator had given the reasons for his rejection of the applicant evidence on the past events, he did not explain why he accepted the past domestic violence inflicted by the husband.

22.  It is not uncommon that the majority of non-refoulement claims are largely unsupported by documentary evidence. The applicant’s assertions were similarly substantially uncorroborated. Her evidence of the domestic violence inflicted by her husband before she left for her parents’ home and all the other past events were equally uncorroborated evidence. Hence, the quality of evidence in relation to the domestic violence she had been subjected to during the period she lived with her husband is the same as the other versions of the events that the adjudicator rejected. However, the adjudicator did not explain why he had chosen to accept that part of evidence in relation to the domestic violence and reject the other parts of the evidence on past events. As discussed in para 16 above, a determining tribunal when assessing a claimant’s credibility, should not “just selected portions of the evidence” whether to accept or to reject. Since the crux of the applicant’s case is based on her fear of being tortured or harm by her husband, the adjudicator’s accepting of the domestic violence the applicant had suffered would have been an important finding in favour of the applicant’s appeal. Having regard to the Board’s acceptance that the applicant did suffer from domestic violence, it is reasonably arguable that the Board had not applied the principle of the benefit of the doubt in her case: see Prabakar (supra.)

23.  In the circumstances, I am of the view that on the credibility issue, the Board’s finding risks an arbitrary application of assessment standards, and the applicant’s Leave Application is not without merits.

24.  Apart from making an adverse credibility finding, the adjudicator did not consider other materials, which might have been relevant to her claim. There was no determination on state protection and the question of relocation. As the CFA has reiterated in paras 51 and 52 in Prabhakar that the high standard of fairness requires a decision maker to consider all relevant matters when assessing this sort of claim. One of the relevant considerations would include the conditions of the country of origin. I therefore conclude that the adjudicator has failed to make adequate enquiry into the applicant’s country conditions. In my view, the ground stated in paras 10 and 15 of her affirmation (see para 9(4) above) are reasonably arguable.

25.  In conclusion, of the applicant’s four complaints this court summarized in para 9 above, I am of the view that sub-para (2) and (4) are reasonably arguable. As for sub-para (1), the Board’s Decision shows that the Board has conducted the proceedings fairly. I am unable to find any procedurally unfairness. In relation to sub-para (3), since the Board made no determination on the COI, this complaint simply is not relevant.

Conclusion

26.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated in para 9(2) and (4) above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

27.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as the respondent and the Director as the interested party.

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