RAMOS MELVIN ATIENZA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2223/2019

[2025] HKCFI 2548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2223 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.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of the Philippines who arrived in Hong Kong on 16 April 2018 as a visitor with permission to remain as such up to 30 April 2018 when he did not depart and instead overstayed, and was arrested by police on 13 August 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to the Philippines he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

Factual background of Applicant’s claim

2.  The Applicant was born and raised in Pagolingin West, Lipa City, Batangas, the Philippines. After leaving school he worked as a construction worker and store helper, and continued to reside with his parents and some of his siblings in his home district.

3.  In 2012 his father died from cancer, and as some of his siblings were without jobs, the Applicant became the sole breadwinner of the family, but as his income was limited, and as 2 of his siblings were still in school, the Applicant had resorted to borrowing small loans to meet his family’s needs.

4.  In September 2016 he was able to borrow a loan of 100,000 peso through his friend Raymond as guarantor from someone by the name of Solano whom he never met but according to Raymond was a local drug dealer, and upon obtaining the loan which he was required to repay within certain specified period, the Applicant gave the majority of the money to his mother for household expenses and for his sisters’ school fees.

5.  However, one week later the Applicant was told by Raymond that Solano had called in the loan earlier than expected, and when the Applicant said he would not be able to do so within such a short time, his friend then warned him to be careful that Solano may send his men to beat or even kill him.

6.  One day in March 2017 the Applicant was located by Solano’s men in Batangas who then beat him with the butts of their guns that he suffered a head injury and with cuts and bruises all over his body, and before they left, Solano’s men threatened him that next time they would kill him if he still failed to repay the loan.

7.  About a week later the Applicant was told by a friend of Raymond that Raymond had been killed by Solano’s men for refusing to disclose his whereabouts that the Applicant became fearful for his life and fled from his home district to hide in Cebu, but one day after some 6 months he was located by Solano’s men, and although he managed to make his escape without serious injuries, the Applicant on 16 April 2018 departed the Philippines for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 December 2018 and attended screening interview before the Immigration Department with legal representation.

Director’s Decision

8.  By a Notice of Decision dated 28 January 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Solano and his men upon his return to the Philippines as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private monetary dispute between him and Solano only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in the Philippines with a large population of 105 million people spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Quezon City or Manila where it would be difficult if not impossible for Solano to locate him.

Appeal to Board

10.  On 13 February 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 18 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 July 2019 his appeal was dismissed by the Board.

11.  In its decision the Board rejected the Applicant’s claim of having borrowed a loan for which he was subsequently unable to repay that caused him to take flight from his home country to come to Hong Kong for protection as not credible or believable upon finding that it was not necessary in the first place for him to borrow such a big loan when his family had been able to survive for the past 4 years after his father as the main breadwinner passed away, that it was unreal for his friend Raymond as the loan guarantor to tell him to run away from his liability and even died for him at the end, and that it was not business-like for Solano as the lender to call in the loan after just one week and then to have to go through the trouble of sending men to chase after the Applicant to collect the debt that the Board concluded that his claim for non-refoulement protection failed on all the applicable grounds.

Application for Judicial Review

12.  On 6 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision as his life would still be in danger in his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

13.  Nevertheless, given the fact that the Board rejected the Applicant’s claim solely on credibility without any assessment on the availability of state protection or internal relocation and on the basis that it was not accepted that he had borrowed any loan that eventually caused him to flee his country to come to Hong Kong to seek protection, and in view of the seriousness of the issue at hand and the gravity of the consequence of the Board’s decision in dismissing the Applicant’s non-refoulement claim, high standards of fairness require that the Board’s assessment and determination on credibility be scrutinized by the Court for any error of law or irrationality or procedural unfairness in such process and in its decision.

Adjudicator’s assessment on credibility of claim

14.  While it is clear from the decision that the Applicant did attend the scheduled hearing of his appeal before the Board during which he did also give evidence and answer questions from the Adjudicator, it appears that the Adjudicator relied essentially on the information provided earlier by the Applicant in his NCF and answers given during his screening interview before the Director (see [10] – [26] of Decision) in assessing the credibility of the Applicant’s claim based on his following analysis and rationale stated in the decision:

  “Raymond

  27. At the hearing, the Appellant was asked to explain why he needed to borrow such a large sum of money of 100,000 pesos in comparison to his general monthly income of 2,500 pesos. He kept on saying that Raymond told him he could act as his guarantor and he might even help him repay on half/half basis. Such strange situation remained unexplained in the hearing.

  28. The Appellant mentioned that Raymond was his close friend who he came to know in the years of 2009 or 2010 in the shopping mall in which he worked. He did not know what he did for a living because he did not tell him. Usually, they contacted each other over the phones once in a while. That is all the Appellant could tell about Raymond.

  29. It was pointed out to the Appellant that Raymond did not appear to be a close friend of him. It was also asked why Raymond was prepared to die for him. The Appellant said that he could not explain.

  30. Q43: “Raymond’s friend TOLD YOU THAT Raymond died because he refused to disclose your whereabouts to Mr. Solano. When did you acquaint this friend of Raymond?”

        A43: “So I knew this friend of Raymond once when he was accompanied by Raymond and came to see me.”

        Q44: “Apart from being told that Raymond was killed by the gangsters of Mr. Solano, is there any other evidence made you believed this is a fact?”

        A44: “No other evidence” (RSI)

  31. Regarding the conduct of Raymond. I re-quote a passage here for easy reference: (see para 18)

“Raymond advised me that if I could not repay the loan amount immediately, Mr. Solano would arrange his gangsters to locate me, beat me or even kill me if I could not pay for it. He further told me that I should get a passport so that I could go elsewhere if it is needed.” (NCF, Answer 35, para 5)

  32. Regarding the loan, Raymond acted as a guarantor. The Appellant was asked, from what he knew about the circumstances, why Raymond, as a guarantor of his loan, could ask him to run away to avoid his liability to repay the loan. The Appellant admitted that he could not explain. I find Raymond seemed to be an unreal person.

  33. On the whole circumstances, I do not believe there was such a person that played the role of Raymond in securing a loan for the Appellant.

Was a big loan necessary?

  34. The Appellant father, who was making about 5,000 pesos a month, died in 2012. The loan of 100,000 pesos was borrowed in September 2016. Within this period of four years, in order to make ends meet, the Appellant explained that he kept on borrowing in small sums. Therefore a large sum of money, which the Appellant should fully understand he could not repay in his circumstances, should not have suddenly become necessary.

  35. However, the Appellant explained how he spent the money in one week. He gave 25,000 pesos to his two sisters who were still in school as their tuition fees. He used 20,000 pesos to pay for expenses of his journey to Hong Kong and the balance of 55,000 pesos to his mother for household expenses for as long as the money could last. As sole breadwinner of the family, he had no idea what would happen if the fund he left with the family ran out one day. It seemed that he did not borrow to support a family left to him by his deceased father. The big loan of 100,000 pesos was totally unnecessary for a family that had survived for four years immediately before it.

Was there such a loan?

  36. According to the Appellant, although there was no written loan agreement, there was an “agreement” that the loan would be repaid over a certain period of time. I believe the payments over this specified period of time would carry interest that would become income to the lender or Solano. Therefore there should be no incentive for a lender to recall the loan at least as early as one week.

  37. It would not be “business-like” for a lender such as Solano, who was said to be rich and powerful, to re-call a loan within a week and to create the trouble of sending people out for debt-collection.

  38. However, the Appellant asserted that such situation did arise and his “close friend” Raymond was prepared to and did die for him.

  39. The Appellant claimed that there was such a loan which Solano within a week called back and threatened to kill him if he was unable to repay his loan. Such loan did not appear to be real.

  40. On the whole circumstance of this case, I do not accept there was such a loan that eventually made the Appellant take flight to Hong Kong.

Well-found fear of persecution

  41. The Appellant’s fear of persecution arose from a loan of 100,000 pesos obtained from Solano which, according to him, he was unable to repay.

  42. I have found in effect that both the loan as described by the Appellant and Raymond who helped secure the loan were not real.

  43. Assuming the Appellant did obtain a loan of 100,000 pesos from Solano, I find the way the Appellant allocated the fund, namely, 25,000 pesos for sister’s education, 20,000 pesos for the expenses of his journey to Hong Kong and the balance of 55,000 pesos to his mother for household expenses, suggested that he was cheating Solano as he had no intention of repaying him. He created the so-called “persecution” from Solano which he benefitted in terms of money and which he used as basis of claim for non-refoulement protection in Hong Kong. I find such a loan could not be used as ground in relation to “persecution risk”.

  44. I find the Appellant has no well-founded fear of persecution as described by him in the Philippines.

Genuine and substantial risk to life

  45. All the considerations applied to the last topic apply here and vice versa.

  46. In dealing with the loan, I have in effect found that the lender, Solano, did not appear to be real. According to the Appellant, he only knew his name and what he was from Raymond. It was absolute not business-like for a rich and powerful “loan shark” to recall loan in a week and to send people to look for the Appellant for so many years.

  47. I find the risk to life as asserted by the Appellant is not genuine and substantial in the Philippines.”

Discussions

15.  Based on such analysis it appears that the Adjudicator disbelieved the Applicant’s claim as not credible essentially for the following reasons:

(a)  That in the first place it was not necessary for the Applicant to borrow such a big loan of 100,000 pesos for his family that had been able to survive for 4 years after the death of his father as the major breadwinner;

(b)  That it was unreal for Raymond to be willing to act as the loan guarantor and then to advise the Applicant to run away from his liability to repay the loan and even died for him;

(c)  That it was not “business-like” for Solano as the lender to call in the loan within just one week and then to have to go through the trouble of sending out his men to chase after the Applicant to collect the debts;

(d)  That even if the Applicant did borrow such a loan from Solano, that he had no intention of repaying the loan and instead used it as a basis for his claim for non-refoulement protection in Hong Kong that such a loan could not be used as a ground for persecution risk.

16.  Firstly, it was the Applicant’s case both to the Director and the Board that after the passing of his father as the main breadwinner of the family, and with 2 of his siblings still at school and nobody else in the family with a job except himself earning only half of what his father was able to prior to his death that the Applicant needed more money to support the family, which was why he asked his friend Raymond to help borrowing money for him, and which in my view is nothing unusual or out of the ordinary in such circumstances of the Applicant and his family for the Adjudicator to find the loan unnecessary.

17.  Secondly, according to the Applicant’s case, Raymond borrowed the loan for him from Solano whom the Applicant knew nothing about but was told by Raymond to be a “famous big drug dealer”, but there is nothing in the evidence to suggest that Solano was also a money-lender or a “loan shark” as described by the Adjudicator ([46] of Board’s decision), and as there was no evidence of any written loan agreement or any terms of the loan other than that it was to be repaid “over a certain period of time”, nor for that matter any evidence as to how did Raymond obtain such a loan from Solano and on what terms, or what was the relationship between Raymond and Solano, or why did Solano decide to call in the loan earlier than the certain period of time, or whether Raymond did disclose everything about the loan to the Applicant, of which there is not any information or evidence disclosed or referred to in the Board’s decision. As such, there is simply no proper or sufficient basis for the Adjudicator to find that Solano was in the business as a money-lender or loan shark, or that the loan would carry interest over that certain period for the Adjudicator to find that it would not be “business-like” for Solano to call in the loan after just one week other than his own subjective assumptions conjectures or speculations, and that if the Adjudicator indeed had such issues over the loan that the credibility of the Applicant’s evidence would be so impeached, there is nothing in the decision that such questions had ever been raised or put to the Applicant during the hearing or thereafter so as to give him an opportunity to reply or explain or otherwise deal with them before the Adjudicator was to make any adverse finding against his claim.

18.  Thirdly, it seems to me there is also no proper basis for the Adjudicator to find that the Applicant was cheating Solano or had no intention of repaying him simply on the way the Applicant allocated the fund on his family and himself, and therefore to proceed to find that the Applicant had no well-founded fear of persecution as described by him in the Philippines.

Applicable principles

19.  The principles and methods for assessing the credibility of a non-refoulement claim are well established. Whilst the burden of proof lies on an applicant to establish his claim, it is for the decision-maker charged with determining his status to assess the validity of the evidence and the credibility of the applicant, and in doing so, all of the evidence both oral and documentary must be considered and assessed, and not just parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision maker must still go on to access the evidence which is found to be credible and determine the claim as the totality of the evidence warrants, as the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, December 2011 (“UNHCR Handbook”) elaborates as follows:

  “196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary evidence or other proof, and cases in which an applicant can provide evidence of all his statements will be an exception rather than the rule. In many cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in many cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit.

  197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself in. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

  198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

  199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

  …

  201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straws”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” …

  202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an “underserving case”.

  203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence of some of his statements. As explained above, (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

  204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

20.  In other words, the rejection of some of the evidence, or even all of the applicant’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 applicant’s situation and evidence regarding persons who are similarly situated.

21.  As credibility findings have to be explained and supported by the evidence, and where the decision-maker finds a lack of credibility, there must be a basis or foundation in the evidence, which derives from the requirement that such assessment must be individual, impartial, and objectively based on the examination of the statements of the applicant and the documents submitted in support of his claim, and speculations will occur when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculations, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p41.

22.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general COI and/or the applicant’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.”

23.  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 applicant which run counter to what would be expected, as observed by Keene LJ at §25:

  “There seems to me to be very little dispute between the parties in 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 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 by 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 ship’s 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.’”

24.  In ST v Betty Kwan [2014] 4 HKC 419, the Court of Appeal identified such dangers of adopting personal assumptions, conjecture or speculations in assessing a non-refoulement protection claim when its screening process is not an adversarial one but rather in the nature of a joint endeavor, as Cheung CJHC (as he then was) in giving judgment of the Court explained 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 the 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.”

25.  Furthermore, given the considerable difficulties that applicants normally face in gathering evidence to support their claims, the principles of the benefit of the doubt should often be applied in appropriate cases, as stated in the UNHCR Handbook above which recognizes that notwithstanding the efforts of an applicant, and indeed also of the determining authority, to gather evidence pertaining to the material facts asserted by the applicant, there may still be some doubt regarding some of the facts, in which case the need for the principle is reinforced by recognition of the fact that an applicant’s life and/or integrity may be put at grave risk if non-refoulement protection is wrongfully declined, as it was emphasized by the European Court of Human Rights in RC v Sweden, No. 41827/07 (Judgment), ECtHR, 9 March 2020 at para.50:

  “The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof.”

26.  The application of the principle of the benefit of the doubt therefore allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance Asylum Instruction, Considering Asylum Claims and Assessing Credibility, February 2012 at para. 4.3.4:

  “[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision-maker must come to a clear finding as to whether the fact can be accepted or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

27.  As noted in UNHCR Beyond Proof, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators as appropriate in light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt, as it so stated at p50:

  “If, following such assessment, there is nevertheless an element of doubt in the mind of the decision-maker as regards the credibility of some asserted relevant facts, and there is no other evidence to support that fact, the decision-maker should consider whether it is appropriate, in all the circumstances, to apply the principle of the benefit of the doubt. The application of the principle of the benefit of the doubt, as explained in the UNHCR Handbook, allows the decision-maker to accept an asserted material fact as credible even though there may be no evidence other than the applicant’s statements to support the fact, and thereby reach a clear and unambiguous conclusion regarding the asserted facts of the application.”

28.  In the present case, the Adjudicator dismissed the Applicant’s appeal and rejected his claim solely on his assessment and determination on credibility without proceeding to make any assessment of the availability of state protection or internal relocation given what the Adjudicator had determined as to the private nature and localized risk in the Applicant’s claim if it were real, as did the Director in his decision, of which the Adjudicator somehow also did not confirm (see Conclusion in [70] – [71] of the Board’s decision), as all adjudicators are required to do by Section 23(1) of Sch. 1A of Part VIIC of the Immigration Ordinance, or Section 22.1 of the Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme for the Board upon determination of the claim either to confirm or reverse the Director’s decision.

29.  As such, and on the basis of these findings of the Adjudicator as noted above and set against the factual basis of the Applicant’s claim as stated to the Director and the Board as well as in his evidence given before the Board, it is in my view reasonably arguable that the Adjudicator had erred in his such findings and determination of the credibility of the Applicant’s claim for the reasons given above, and thus meeting the threshold for leave to be granted to apply for judicial review of the Board’s decision as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

30.  Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds that the Board (1) erred in law in its assessment and determination of the credibility of the Applicant’s claim without proper or sufficient evidential basis and/or by relying on subjective assumptions, conjectures and speculations; (2) failed to apply high standards of fairness and/or procedural fairness in failing to raise issues with the Applicant as to the credibility of his claim and/or to put any of those issues or questions which it considered as undermining his credibility either at the appeal hearing or thereafter in writing so as to give him an opportunity to reply explain or to deal with such aspect of his evidence; and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as 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