MS v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 520/2019

[2021] HKCA 979

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 520 OF 2019

(ON APPEAL FROM HCAL NO 208 OF 2019)

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REASONS FOR JUDGMENT

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Hon G Lam JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung given on 1 November 2019 refusing leave for the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Adjudicator of the Non‑Refoulement Claims Petition Office (“Board”) dated 22 November 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 26 February 2016 and 16 June 2017 respectively rejecting the applicant’s non‑refoulement claim. 

2.  At the conclusion of the hearing of the appeal, we allowed the appeal and granted leave to apply for judicial review based on Grounds 1, 2 and 4 of the Amended Form 86.  We made no order as to costs except that the applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.  We now give the reasons for our decision.

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally in 2007 and was arrested by the police on 1 July 2007.  He lodged a non‑refoulement claim on 26 October 2007.

4.  The applicant claimed that he was a shop owner in Pakistan and joined the Pakistan Peoples Party and, with the support of his uncle who was Secretary of the Party, became the Party’s Vice‑President in the Manzoor Abad area.  The applicant claimed that he had been attacked and threatened by members of a rival political party, Pakistan Muslim League (Nawaz), who vandalised his shop and assaulted him.  Further details of the applicant’s claim have been summarised by the judge at [3] to [5] of the CALL‑1 Form and by the Board at [35]‑[77] of its decision.

5.  By a Notice of Decision dated 26 February 2016, the director decided against the applicant’s claim.  This decision covered the BOR 3 risk,^[1] the persecution risk,^[2] and the torture risk.^[3]  By a Notice of Further Decision dated 16 June 2017, the Director assessed the applicant’s claim based on the BOR 2 risk,^[4] and decided against him.

6.  The applicant appealed to the Board.  The Board held a hearing on 15 May 2018.  Both the Director and the applicant were legally represented.  At the start of the hearing, the applicant informed the Board that he had a headache.  The applicant’s lawyer (Mr Chong), assigned by the Duty Lawyer Service, informed the Board that the applicant wished to apply for an adjournment because of the headache and that a doctor had given him a sick leave certificate for the day.

7.  Government counsel for the Director submitted that the Board should first find out whether the applicant was going to give evidence, for if he was minded not to give any evidence, then the hearing should continue.  Further, he submitted that the Board was not bound to adjourn the hearing merely because the applicant had a sick leave certificate.

8.  Initially, Mr Chong indicated that the applicant would not be giving evidence.  The Board thereupon said the application for adjournment was dismissed.  However, when the Adjudicator explained the procedure for the remainder of the hearing to the applicant, the applicant said he did not say that he did not wish to give evidence, but that he was not feeling well enough to give evidence.  If a new hearing was arranged, he might be able to give evidence.

9.  The Adjudicator remarked that the applicant claimed to have suffered two head injuries in 2014 but had never been diagnosed with any physical injury to his brain.  The Adjudicator also observed that the claim of headache was entirely subjective and said that in the circumstances, he was not persuaded that that alone was sufficient to warrant an adjournment of the hearing.  The Board then stood the case down for the applicant to give instructions to and receive advice from his lawyer. 

10.  After the brief adjournment, Mr Chong informed the Board that the applicant’s stance was that he was “not in a position to explain anything or to answer any question today”. 

11.  The Board decided to refuse to adjourn the hearing, giving brief reasons for that decision.  Among other things, the Board said:

“ I note that the history of this case … in the recent past has been plagued by claim of health on the part of the brain or relating to two incidents of head injury which he claimed to have suffered at home in 2014. … As I say the claim of … headache is entirely subjective … I am satisfied that the Claimant’s medical condition had been fully explored and that he is not suffering from any great injury or other condition as a result of the two bangs to his head which he received. … So I am refusing the application for adjournment today. …”

12.  The Board then proceeded to hear submissions from both parties on the appeal, and reserved its decision at the end. 

13.  By a written decision dated 22 November 2018, the Board dismissed the appeal in respect of all four grounds for non‑refoulement protection.  At [78]–[95], the Board observed that while the applicant claims to have suffered head injuries, he failed to attend many of the medical examinations scheduled for him.  The Board observed at [22] and [95] that:

“ 22. I was satisfied that the application for adjournment was a stalling tactic by the Claimant. I was satisfied that the Claimant’s headache was not a genuine reason for his election not to give evidence. This undermined the general credibility of the Claimant.”

“ 95. The Claimant’s evidence, including the medical reports, raised issues relating to the general credibility of the Claimant. His failure to attend the scheduled interviews, and the reasons which he provided to explain this, seems to have been designed, and intended, to delay and/or obstruct the determination of his claim for non‑refoulement protection. This seriously undermines the general credibility of the Claimant.”

14.  Under the heading “Credibility of the Claimant”, the Board observed at [96]–[101] that:

“ 96. The information provided by the Claimant inherently raised questions relating to the Claimant’s general credibility. For that reason, I directed that a [hearing] be conducted at which the Claimant would have an opportunity to give evidence and to answer questions in relation to the factual basis of his claim for non‑refoulement protection.

97. For the reasons set out, the general credibility was undermined to the extent that I was not prepared to accept the written assertions of the Claimant, which were not supported by other credible evidence, at face value.

98. In this appeal/petition, it is incumbent upon the Claimant to satisfy the Board, albeit to a very low standard, that there is a real risk that he will be subjected to the ill‑treatment or serious harm which he fears if he is refouled to Pakistan.

99. In the absence of oral evidence from the Claimant, the Board is unable to determine issues relating to his general credibility. In the circumstances, the Board is unable to determine which, if any, of the past events which the Claimant says occurred, and his claimed past experiences, actually occurred.

100. In the circumstances, the Board is unable to establish, even to the low standard applicable, if there is a real risk that the Claimant would suffer the ill‑treatment he claims to fear, if he is refouled to Pakistan.

101.   On the totality of the evidence, the Claimant has failed to establish, even to the low standard required, that there is a real chance, that he will suffer ill‑treatment of any sort if he is refouled to Pakistan.”

15.  The Board observed at [102] that:

“ Much of the Claimant’s evidence relates to facts which are not within his own knowledge and is based solely on what he was told by others. Such evidence amounts to hearsay. While hearsay evidence is not, of itself, inadmissible, the weight which can be attached to such evidence is greatly reduced. Hearsay cannot prove the truth of facts asserted by way of such evidence. Speculation can rarely, on its own, support any element of the Claimant’s case.”

16.  The Board held that the applicant failed to establish a case under any of the applicable grounds even to the low standard required.

The judge’s decision

17.  The applicant filed a Form 86 on 22 January 2019, which was later amended on 5 June 2019, to seek leave to apply for judicial review of the Board’s decision.  The following grounds for judicial review were advanced in the amended Form 86, as summarized by the judge at [15] of his decision:

(a)     Error of law/misdirection in law: failing to consider the materials and evidence for the Board notwithstanding that the applicant did not give oral evidence at the appeal.

(b)     Illegality: failure to make factual findings/no adequate reasons: this ground overlaps with the first ground, but additionally, in finding that it could not determine whether there were real risks of harm as the applicant claimed because the applicant did not give evidence, the Board failed to give sufficient reasons and its finding should be set aside, relying upon Re Hidayah [2018] HKCA 595.

(c)     Procedural unfairness: failure to adjourn the appeal as the applicant had produced medical evidence to show his headache, coupled with the history of the same medical problem.  It was unreasonable for the Board to disbelieve him without evidence to disprove his medical evidence and to conclude that it was a stalling tactic.

(d)     Procedural unfairness: failure to afford the applicant a reasonable opportunity to be heard: before the Board reached the conclusion that it would not believe the applicant because of the general credibility issue arising from its view that the applicant had engaged in stalling tactics, it was incumbent upon the Adjudicator to advise the applicant of such potential finding and advise him if he wanted to give evidence under those circumstances.  The Board had failed to discharge its duty.

18.  The judge refused to give leave for judicial review, and gave the following reasons at [22] to [31] of the CALL‑1 Form:

“ 22. Ground (1) cannot stand under section 37ZD(1) of the Ordinance. Counsel argued that general credibility refers to the person of the applicant, not to the facts he stated in his evidence, which should be assessed without taking into account of his personal character. I am unable to differentiate the applicant’s personal credibility from the credibility of the evidence in relation to the facts. If the Board did not believe the applicant, it did not believe the evidence he gave. The evidence of facts was given by him. It is up to the Board to consider whether what he said was believable. The law allows the Board to take the factors into consideration to determine the credibility, which covers the applicant and the evidence he gave to the Board. Counsel argued that the Board had failed to adopt the approach he submitted and therefore did not find the primary fact. I disagree. I shall cover this argument in Ground (2). The Board has given reasons for its findings. Ground (1) fails.

23. For ground (2), Counsel relied heavily on Re Hidayah [2018] HKCA 595, in which the Court of Appeal set aside the Board’s Decision for the reason that the Board held that it was unable to determine whether the applicant was under real risks as alleged. However, it must be born in mind that in this case, the applicant was absent. No oral evidence was available to assist the Board to make the decision. The Court of Appeal stated in §15:

‘ … There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well‑founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well‑founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.’ (emphasis added)

24. This case has to be differentiated from that case in that:

a. the applicant was present at the hearing and he elected not to give evidence himself upon legal advice from his legal representative;

b. it was unable to determine the credibility of the claim because the applicant gave no evidence and the Board found that the applicant failed to establish his case, which is a fact found by the Board; in other words, the Board did not believe his evidence on the facts;

c. the Board, having taken into consideration the facts set out in paragraph 11 above, was able to come to its conclusion.

25. The Board had given its reasons in support of it finding of the fact that the applicant had failed to establish his claim, ground (2) fails.

26. Ground (3) is, in my view, not a valid ground. This is a procedural discretion for the Board at the hearing. The Board, having considered all the evidence before it, particularly taking into consideration of the facts set out in paragraph 11 above, which the applicant did not dispute, came to its decision not to adjourn the matter. The fact that the applicant produced the medical evidence at the hearing did not mean that the Board must accept it. The Board did not dispute that it was an authentic document. However, it refused to accept the fact that because of headache, the applicant was unable to give evidence. The medical evidence did not spell this out. It is up to the Board to make an evaluation under the circumstances. In fact, according to the Board’s Decision, although the applicant said that he would give evidence if the hearing was adjourned, he had, upon legal advice, decided not to give evidence himself.

27. Ground (4) is also, in my view, a non‑point. The applicant was legally represented throughout the hearing. The applicant has the right to elect to give evidence or not to give evidence. High standard of fairness does not require the Board to give advice to the applicant as his legal representative was present.

28. Ultimately, this Court has to consider whether the applicant’s judicial review has a reasonable chance of success. The Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676 §14 held that the test for whether leave should be granted depends on whether the applicant could show that he had a reasonable prospect of success in his intended judicial review. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

29. This Court has to take into consideration of the Director’s Decisions and the Board’s Decision. The Court of Appeal in Re: Kartini held that both the Director and the Board have the power to make investigation into the facts and make determination accordingly. Although the court in AM v Director of Immigration & Another (unreported, HCAL 102/2012, McWalters J., 20 November 2013) held that the Board has the power to hear the case de novo, this does not mean that the Director’s Decision is wholly reversed by the Board unless the Board specifically did so in the Board’s Decision.

30. I have, in my previous decision Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non‑Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19, held that the Board should not re‑hear the case wholesale without reason, rendering the unified screening mechanism of the Immigration Department otiose. This is because under the Ordinance, the Board may accept the findings of the Director and adopt them unless to do so would be unjust. This is also for good case management, saving costs and time for the process. In this case, the Board came to the same conclusion as the Director in relation to the findings that the applicant’s claim was not credible and his claim of risks were not established. The Director went further to consider state protection and internal relocation, which were not reversed by the Board. The applicant has not disputed the Director’s findings.

31. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Grounds for appeal

19.  The applicant filed a Notice of Appeal dated 11 November 2019 which he had apparently prepared by himself.  It is unnecessary to set out here the grounds stated therein, since the applicant was subsequently legally represented, and a Supplemental Notice of Appeal was filed by his lawyers on his behalf on 9 March 2020. 

20.  At the appeal before this court, the applicant was represented by Mr Francis Ngan of counsel.  The Director took a neutral stance and was excused from attendance.  Mr Ngan abandoned the third ground for the proposed judicial review and the related ground of appeal.  The remaining three grounds of appeal in the Supplementary Notice of Appeal were as follows:

(1)     The judge erred in holding to the effect that the Board was entitled to reject the applicant’s non‑refoulement claim if it found that he was not a credible person.  The judge’s reasoning was contrary to the legal principles set out in SM (section 8: judge’s process) Iran [2005] UKIAT 00116 and Re Hidayah [2018] HKCA 595 at [15].

(2)     The judge erred in holding that the Board had given reasons in support of the finding that the applicant had failed to establish his non‑refoulement claim.  The judge wrongly considered the Board’s rejection of the applicant’s non‑refoulement claim as the finding of fact. This is contrary to the principle in TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31] that the decision‑maker is under a duty to make findings on the applicant’s relevant factual assertions.

(3)     The Board erred in relying on the applicant’s conduct prior to the appeal/petition to reject his credibility and hence his non‑refoulement claim.  Such concern was not raised by the Board prior to or during the hearing of the appeal.  The Board should have adjourned the hearing to allow the applicant to address the Board’s concern in this respect.

Discussion

21.  Given that we have only decided that Grounds 1, 2 and 4 meet the requisite arguability threshold and the application for judicial review itself still needs to be determined by the Court of First Instance on those grounds, we shall confine ourselves to the following brief reasons.

22.  As can be seen from the extracts from the Board’s decision set out in [14] above, its reasoning was essentially as follows.  The applicant’s general credibility was undermined by his behaviour throughout the conduct of his non‑refoulement claim.  His claim primarily depended on his factual assertions including hearsay evidence.  The applicant’s credibility was therefore important.  Because the applicant did not give oral evidence at the appeal, the Board was unable to assess his credibility and hence the veracity of his claim.  The applicant therefore failed to prove his claim even to the low standard applicable.

23.  The judge, in [22] of his decision, appears to have put the applicant’s general credibility and the damage thereto under section 37ZD(1) at the forefront, without distinguishing between a dent to a claimant’s credibility based on the section 37ZD(1) grounds and the assessment of the primary facts alleged by the claimant for his non‑refoulement claim.

24.  With great respect, it seems to us reasonably arguable that the Board erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination, that whilst section 37ZD of the Immigration Ordinance (Cap 115) provides that certain behaviour may be taken into account as damaging the applicant’s credibility, those matters are not necessarily the starting point of a decision on credibility, and that the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round.  See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].

25.  In Re Hidayah, the non‑refoulement claimant did not appear at the appeal hearing before the Board.  In its decision, the Board stated that it was unable to determine the credibility of her assertions and whether there was a real risk of harm, and dismissed her appeal accordingly.  This Court (Chu JA and Mimmie Chan J), allowing the appeal and giving leave to apply for judicial review of the Board’s decision, said:

“ The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well‑founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well‑founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

26.  Although the ground on which leave was given in that case was that the Board had failed to give sufficient reasons for its decision, this passage highlighted the point of general relevance that even where the Board is unable to test a claimant’s credibility by questioning him at the hearing, it should not thereupon simply conclude that it cannot come to any findings on the claimant’s case which depends on his credibility.  As to the points made by the judge in [24] of his decision, the fact that the applicant was present in this case made no difference, because what the Board focused on was the lack of opportunity to test the applicant’s credibility by questioning him.  Whilst it can be said that the Board did not accept the applicant’s evidence, on the reasons given by the Board this was not because it had assessed the assertions of primary facts in their context and rejected them, but because it was unable to determine the facts in the absence of oral evidence from the applicant (see [99] of the Board’s decision), which was arguably an erroneous approach.  As to the applicant’s conduct in the proceedings relating to his non‑refoulement claim, it would appear that the Board was particularly unimpressed.  But such matters should not be “given a status and a compartment of their own rather than taken into account … as part of a global assessment of credibility”: JT (Cameroon) v Secretary of State for the Home Department [2009] 1 WLR 1411 at [16].

27.  Further, it seems to us reasonably arguable that, in the circumstances of the present case, 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[5]), the Board should in fairness have mentioned that possibility to him in general terms at the hearing.  The fact that the applicant was legally represented (relied upon by the judge at [27] of his decision) does not necessarily mean that the applicant knew through his lawyer that the application for adjournment would be taken against him; there was no submission by the Director’s government counsel that any adverse inference should be drawn from the application for adjournment.

28.  For these reasons, we allowed the appeal and granted leave to apply for judicial review on Grounds 1, 2 and 4.  We should record that at the hearing, we added the caveat that in the light of the history of this matter, it was incumbent on the applicant and his legal representatives to prosecute the application for judicial review with despatch.