CANJA CHRISTINA DOLEDO v. TORTURE CLAIMS APPEAL BOARD

HCAL 1132/2020

[2025] HKCFI 2239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1132 OF 2020

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 49-year-old national of the Philippines who last arrived in Hong Kong on 3 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 11 March 2020, but when her employment was prematurely terminated on 21 September 2019, she did not depart and instead overstayed, and was arrested by police on 4 October 2019 for theft for which she was subsequently convicted and sentenced to prison for 4 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to the Philippines she would be harmed or killed by some local drugs dealers for reporting their activities to the police which led to their arrests.

2.  The Applicant was born and raised in Valladolid, Negros Occidental, the Philippines. After leaving school she in 2005 started to come to Hong Kong to work as a foreign domestic helper, returning to her home in the Philippines only for holidays.

3.  On one such occasion in December 2017 when she returned to her home district and attended the homecoming reunion of her high school, the Applicant heard of increasing drugs dealing activities in her neighborhood in which 2 of her acquaintances Larry and Romeo were also involved, with the latter being a former schoolmate and both living in the same neighborhood, but she did not do anything before returning to Hong Kong to continue with her employment.

4.  In December 2018 when she again returned home in Valladolid for holiday, and during the evenings when she was strolling along the town plaza, the Applicant repeatedly saw young people coming in and out of Romeo’s home in rowdy behavior, of which she suspected that they were buying drugs from Romeo, and so she decided to report the matter to the police, and for which she requested that her identity be kept confidential as an informer.

5.  Shortly thereafter the Applicant heard from her brother and friends that the police had raided Romeo’s home and arrested a number of people there including Romeo but not Larry.

6.  However, several days later some unknown men came to the Applicant’s home looking for her, of whom she suspected that they were men sent by Romeo to take revenge against her, but she managed to flee from the back of her house into hiding until those men had left.

7.  On the following day the Applicant fled to Bacolod City to hide in a friend’s place before returning to Hong Kong to continue with her employment, during which she was subsequently informed by her mother in the Philippines that those men had kept coming back to look for her, and that upon his discharge from prison Romeo together with Larry had threatened to her mother that they would kill the Applicant in revenge for being an informer when she returned to the Philippines.

8.  Henceforth after her last employment was prematurely terminated in September 2019, the Applicant was afraid to return to the Philippines and instead overstayed in Hong Kong, and upon her arrest by the police for theft, and that she was subsequently convicted and sentenced to prison for 4 months, during which she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 December 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 7 February 2020 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 her 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”).

10.  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 those drugs dealers including Romeo and Larry upon her return to the Philippines as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that those unknown men were drug dealers or were sent by Romeo or Larry to harm her, that in any event it was a private dispute between her and Romeo and/or Larry 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 102 million people spread across a vast territory of more than 298,000 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 her home district in large cities such as Quezon or Davao City where it would be difficult if not impossible for anyone to locate her.

11.  On 24 February 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 May 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 June 2020 her appeal was dismissed by the Board.

12.  In its Decision the Board did not find the Applicant’s claim credible as drugs dealings and trafficking were rampant in the Philippines and were common knowledge to all the Filipino people that it did not believe that the Applicant at her then age of 44 discovered the drug problems in her home district as a novel phenomenon that she would suddenly decide to do something about it when she was there on holiday only that it rejected her claim of having made a report to the police against Romeo over his drug dealing activities in his home and in the neighborhood, that drug dealers such as Romeo should be well known to the local police that it was just a matter of resources and priority that they finally arrested Romeo and not because they had acted upon the Applicant’s information, that there was no good reason why the Applicant should see fit to report only on Romeo who was just a drugs dealer instead of on Larry who was the main culprit as drugs supplier, and that Romeo could not have known that his name and job had been used by the Applicant in Hong Kong for her non-refoulement claim for protection which may cause him to form any intention to persecute her, and concluded that her claimed fear of being harmed by him was not well-founded that her claim for non-refoulement protection failed on all applicable grounds. 

13.  On 8 June 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s Decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor was she able to do so at the hearing of her application other than a complaint of being detained by the Immigration Department at Castle Peak Bay Immigration Centre (“CIC”).

14.  Nevertheless, given the seriousness of the issue at hand and the gravity of the consequences of the Board’s Decision to reject the Applicant’s claim essentially based on its adverse findings on her credibility without any consideration of the availability of state protection or internal relocation alternatives when her claimed risk was said to come from drugs dealers in her home country where drugs problems and trafficking activities were acknowledged by the Board to be rampant, high standards of fairness require that its reasons or basis be scrutinized by the Court for any error of law or irrationality or procedural unfairness in its assessments and determination.

15.  Firstly, in its assessment of the Applicant’s credibility, it appears that the Board relied heavily on the materials and information provided in her NCF and answers given to the Director during her 1^st tier screening process (see [14] – [28] of the Decision), and while the Applicant did also give testimony at her appeal hearing before the Board, of which she was said to rely on the case as set out on paper with little that she wanted to add (see [6] of Decision), neither did the Adjudicator appear to have asked her any questions or raised any issues with her over the credibility of her claim during the hearing, and if he did, it is not apparent in the Decision.

16.  As noted above, the Board in [14] – [28] of the Decision referred extensively to various information and answers given by the Applicant earlier to the Director details of what she heard and saw of drug dealing activities in or around Romeo’s house, her subsequent report to the police which led to a raid on Romeo’s house and the arrest of a number of people including Romeo, and thereafter threats made to her mother against the Applicant, it seems therefore clear to me that the first obvious questions to ask are: Did the Adjudicator have any doubts or issues over any of these information provided by the Applicant? If so why were they not raised to her during her appeal hearing before the Board? And if they were, what were her evidence or answers? Again they are not apparent at all in the Decision.

17.  Whether or not any issue was taken with any of the information provided by the Applicant as noted above, as it is not at all apparent in the Decision, the Adjudicator went on to reject her claim of having informed on the drugs dealing activities in her neighborhood to the police for the following reasons in the Decision:

“30. The Appellant left the Philippines in 2005 to work overseas and never came home to settle down. In December 2018, she went home on home leave only.

31. It was the Appellant’s case that she had been away from home for 13 years and in her short home leave, she took it upon herself to do something for the local community to which she had little intention to return to in the near future.

32. Drugs and drug trafficking should be rampant in the Philippines and this situation must be a common knowledge to all the Filipino people. I do not believe that the Appellant, who is now 44, discovered the drug problems in her home village or town as a novel phenomenon and suddenly decided to do something about it even though she was just there on holiday.

33. At the hearing, the Appellant admitted that she only complained against Romeo. She did so in order to make the community safe.

34. “I then decided that I should report the matter to the local police. I therefore went to the Valladolid Police Station and complained to the police that Romeo was dealing in drugs. I also complained that his drug-dealing activity influenced the community and makes it unsafe.”

35. However, she should have known that the main culprit was Larry.

36. In her home leave in 2017, the Appellant had come to know, if not earlier, that Larry and Romeo belonged to the same drug-dealing syndicate.

37. “From my classmates, I heard that some people from other batches have become drug dealers in the neighbourhood. The drug dealers include Larry dela Cruz (“Larry”) and Romeo Martin Jr (“Romeo”). Both were acquaintances of mine and Romeo was my primary classmate. I am not close to either of them, but know that they both live in the neighbourhood. Larry and Romeo both belong in the same drug-dealing syndicate and Larry supplies to Romeo.” (see para. 14)

38. At the hearing, the Appellant agreed that in the drug-dealing syndicate, Larry was the supplier and a key person in such activities. She also disclosed that her sister Celsa married Genobis who was a drug addict in the neighbourhood and she had seen Larry visiting his place often.

39. If the Appellant had even intended to make the community to which she belonged safer, and decided to report the drug dealers to the police, she did not have better reason to report just Romeo.

40. In the circumstances as described by the Appellant, which she easily observed in her two short home leaves, it appeared that dangerous drugs must be rampant in the community. In such community, drug dealers must be well known people as they had to “push” the drugs among people as widely as possible. This made it easy for any people to contact them to obtain the drugs. In the same way, these drug dealers should also be well-known to the police.

41. If the Appellant who did not live in the community could know that Larry and Romeo belonged to the same drug-dealing syndicate, there was no reason why the police did not know and needed her report.

42. There should not be any doubt that dangerous drugs were rampant in the Philippines as a whole and on local levels in particular. The police must be in command of the problem and it is always a matter of resources and priority in dealing with such problems.

43. I do not believe that Romeo was arrested by the police acting immediately upon the Appellant’s information.

44. In the whole circumstances as put forward by the Appellant, I do not accept that the drug-dealings were a novel situation in her community only in 2017. She must have experienced such situation during her life growing up in the community up to the time she left it to go overseas in 2005.

45. Therefore there was no good reason why she should see fit to report just a drug-dealer, Romeo, to the police during her short home leave.

46. I do not believe the police needed her report and immediately acted on it to arrest Romeo.

47. I find that the Appellant never made any report to police against Romeo in the Philippines and Romeo never knew that his name and job was used in Hong Kong by the Appellant as ground for the claim non-refoulement protection.

48. I find that Romeo never intended to persecute the Appellant and the Appellant fear of his persecution was not well-founded.

49. I have found that Romeo never knew that the Appellant treated him as threat to her life.

50. The risk to life, as alleged by the Appellant, could not be genuine, not to say substantial.”

18.  It seems from the above that the Adjudicator found that the Applicant had never made any report to the police against Romeo based on the followings:

(a)  That drugs problems were rampant in the Philippines and a common knowledge to all the Filipino people that it was not believed that the Applicant at the age of 44 discovered them in her home village as a novel phenomenon that she would suddenly decide to do something about it by reporting to the police even though she was just there on holiday;

(b)  That the Applicant knew that Larry was a drugs supplier and hence the main culprit that she should have reported him to the police instead of just on Romeo only;

(c)  That the police would have been fully aware of the drugs activities in the Applicant’s neighbourhood but that it was a matter of resources and priority in dealing with such problems that Romeo was arrested shortly thereafter but not because they were acting upon the Applicant’s complaint.

19.  The Adjudicator then proceeded to find that Romeo would not have known that the Applicant had somehow involved him in her non-refoulement claim in Hong Kong so as to somehow form any intention to harm or persecute her upon her return to the Philippines.

20.  There did not however appear to be any factual or evidential basis or any relevant COI upon which the Adjudicator could rely on to make his such findings other than his own subjective assumptions, conjectures and speculations, nor did he appear to have raised any of them to the Applicant or asked her to respond to any of his such issues or assumptions at the hearing or thereafter.

21.  The principles and methods for establishing and assessing 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.”

22.  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.

23.  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.

24.  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.”

25.  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.’ ”

26.  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.”

27.  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.”

28.  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’.”

29.  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.”

30.  In the present case, by acknowledging that drugs problems in the Philippines were rampant as evidenced in the relevant COI available before the Board, it seems that the Adjudicator rejected the Applicant’s claim to have reported the drugs activities in her neighborhood to the police against Romeo based on his own subjective assumptions, conjectures and/or speculations without proper evidential basis that the Applicant “who is now 44 discovered the drug problems in her home village or town as a novel phenomenon and suddenly decided to do something about it even though she was just there on holiday”, or that drug dealers such as Romeo should be well-known to the local police who did not need the Applicant’s report, or that the arrest of Romeo was just a matter of resources and priority of the police and not due to the Applicant’s report, or that the Applicant should have reported on Larry as the drugs supplier instead of just on Romeo, or that Romeo could not have known of the Applicant’s report against him so as to form any intention to harm or persecute her.

31.  Furthermore, notwithstanding having raised such questions or issues on the credibility of her claim, it seems that the Adjudicator never put any of them to the Applicant during her appeal hearing at all or thereafter for her to reply or respond, of which high standards of fairness would require him to do so, as held by the Court of Appeal in Re Masud MD [2021] HKCA 1449, when Coleman J in giving the judgment of the Court explained as follows:

“31. … we have come to the view that the Board, in coming to its decision, had not accorded the procedural fairness or high standard of fairness that the applicant was entitled to. Having decided to call an oral hearing and when such hearing was indeed held and attended by the applicant in person, all the rules of fairness that are required in an oral hearing would come into play.

32. One of such rules that may be of relevance is the rule in Browne v Dunn [13]. The rule requires that if a cross-examiner intends to challenge a witness’ evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

33. There is also no need to put every minute details of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.

34. We are not aware of any Hong Kong cases in which the Court explicitly held that the rule in Browne v Dunn should be observed in proceedings before the Board. However, the rule has been expressly applied by analogy by the courts in Canada in applications for judicial review of decisions by their Refugee Protection Division of the Immigration Refugee Board: see Torishta v Canada (Citizenship and Immigration), 2011 FC 362, at §13; recently followed in Abdelrahman v Canada (Citizenship and Immigration), 2021 FC 527 at §§19-20.

35. Further, in MS v Torture Claims Appeal Board [2021] HKCA 979, without explicitly invoking the rule in Browne v Dunn, this Court held that, as a matter of fairness, a claimant should be made aware of the point if the Board were to draw an adverse inference from the claimant’s behavior in conducting his claim. There, the claimant made an application for adjournment during the hearing before the Board on the basis that he had a headache. The Board came to the view that the application was a “stalling tactic” and the general credibility of the claimant was undermined because of that. In §27, this Court held that it was reasonably arguable that:

‘before concluding that the applicant’s application for adjournment of the appeal based on his headache on the day was a ‘stalling tactic’ (and therefore a matter that could be and was taken into account as damaging his credibility under section 37ZD), the Board should in fairness have mentioned that possibility to him in general terms at the hearing.’

36. In any event, since the rule in Browne v Dunn is essentially a rule of fair play and professional practice as at present advised we can see no reason why it should not by analogy apply in non-refoulement claim hearings which require a high standard of fairness.”

32.  Having acknowledged from the relevant COI that drugs problems were rampant in the Philippines, but in rejecting the credibility of the Applicant’s claim of having made a report to the police of the same against Romeo on the basis of those issues raised above, and that for which the Applicant did attend the hearing before the Board to give evidence and answer questions, it does not appear that the Adjudicator had expressly pointed out even in general terms those perceived inconsistencies to the Applicant at the hearing or anytime thereafter to give her any opportunity to reply or respond or explain, and hence it seems to me reasonably arguable that the Board failed to apply procedural fairness or high standards of fairness in its assessment of the credibility of the Applicant’s claim.

33.  As a matter of fact, regardless of his findings on the credibility of the Applicant’s claim, the Adjudicator should and could have proceeded to assess, as the Director did in his decision, whether state protection and/or internal relocation would be available to the Applicant upon her return to the Philippines so as to minimize or negate her claimed risk in case that it was real, but which the Adjudicator somehow did not do so at all, nor did he in fact proceed to confirm the Director’s decision, as required by Section 23(1) of Sch. 1A of Part VIIC of the Immigration Ordinance, or Section 22.1 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”).

34.  In the premises, and for all these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that the Board (1) erred in its assessment and determination of the credibility of the Applicant’s claim by relying on subjective assumptions, conjectures and/or speculations without evidential basis or relevant COI in support; and/or (2) failed to apply high standards of fairness and/or procedural fairness in failing to raise any issues with the Applicant as to the credibility of her claim and/or to put any of those issues or questions which it considered as undermining her credibility either at the appeal hearing or thereafter so as to give her any opportunity to reply, respond or explain to such issues, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

35.  Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and direct that she shall file an disuse 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