MD SALIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 166/2020

[2025] HKCFI 1650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 166 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.   The Form 86 is amended on the court’s own motion

2.   Refusal to grant extension of time in relation to the Leave Application of the Board’s 1^st Decision.

3.   The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 16 January 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was (after the amendment referred to [4] below) against the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 June 2017 and 13 December 2019 (respectively “Board’s 1^st and 2^nd Decisions”) dismissing the applicant's appeals against the decisions of the Director of Immigration (“Director”) dated 17 June 2016 and 4 August 2017 rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s 1^st and 2^nd Decisions can be viewed at the following hyperlinks: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000166_2020_files/1st_Board's_Decision.pdf

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000166_2020_files/2nd_Board's_Decision.pdf

2.  The basis of the applicant’s claim is that he would be harmed or killed by three creditors and their people because he was unable to repay the loans owed to them.  The Board’s reasoning and findings were set out in detail in the Board’s 1^st and 2^nd Decisions and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decisions.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court held a hearing on 2 April 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

4.  In the Form 86, the applicant named himself as the proposed respondent and the Board as the proposed interested party; and identified the Board’s 1^st Decision as the subject decision under review. After the court has informed the applicant of the Board’s 2^nd Decision, the applicant indicated that he also wished to include the Board’s 2^nd Decision in the Leave Application. This court granted leave to him to include the 2^nd Decision in the Form 86.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion to reflect these changes.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decisions and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.    The applicant has not provided any grounds in his Form 86.  In a letter exhibited to his supporting affirmation, the applicant stated that it was still not safe for him to return to his home country as he was still an active member of the Bangladesh National Party, which chairperson “also now in imprison for ten years for a fake case. According to that point my enemy party become more powerful and more strong since last 10 years. I lend money from them. On the other way they are pushed me to join their team but I denied”.  

7.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant submitted that he was still a member of a political party and his life was in danger.  He further stated that at the hearing before the Board, he had told the Board everything including the issues he had with his creditors.  If he were re-fouled, the creditors would chase after him for the return of the loans. He said he was still waiting for further documents to prove that he had in fact made complaints to the police in Bangladesh and his involvement with the political party. He said he did not submit these documents before as he had not been asked and that he did not know that these documents were necessary for his claim.

Board’s 1^st Decision

8.  The Board rejected the applicant’s appeal relating to grounds of torture risk[3], BOR 3 risk[4] and persecution risk[5] in the Board’s 1^st Decision.  The Board’s 1^st Decision was made after the holding of an oral hearing in which the applicant attended in person. At the hearing before the Board, the applicant elected not to testify and stated that he relied on everything in the hearing bundle placed before the Board. When the Board asked him if he was willing to answer the Board’s questions, the applicant said that he did not wish to answer any questions. Hence, the Board did not put any questions to him. Based on the applicant’s earlier written representation and the subsequent Questionnaire contained in the hearing bundle, the Board found that they contained entirely different versions of account. The Board concluded that the applicant’s account that his life was in danger from the creditors to be incredible and rejected it. The Board found that the applicant had filed to establish his claim in respect of all the three grounds.

9.  The Board next considered, in the event that the Board erred in rejecting the applicant’s credibility, the feasibility of the alternatives of the state protection and internal relocation. After having considered the relevant COI, the Board was satisfied that both of these alternative options would be viable to the applicant.

10.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, I should consider whether the Board had observed a very high standard of fairness consequent on the applicant’s election to remain silent at the hearing before the Board. In such situation, the Board should adhere to a rule of fair play and professional practice applicable to non-foulement claim hearings as laid down in the English authority of  Brown v Dunn (1894) 6 R 67, which was applied by analogy by the Court of Appeal in Re Masud Md[6] . The rule in Brown v Dunn:

“[32] … requires that if a cross-examiner intends to challenge a witness's 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 out 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 detail 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.”

11.  The rule of Brown v Dunn was considered in a later Court of Appeal decision in Buniag Renante Lulu v Torture Claims Appeal Board[7]. The Court of Appeal at [25] clarified that :

“Re Masud Md did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps or lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide the applicant an opportunity to respond if he or she wishes to. ”

12.  The above principles derived from the rule of Brown v Dunn would have required the Board to draw the applicant’s attention to the perceived inconsistencies in relation to the applicant’s claimed risks set out in the documents placed before the Board. As the Board’s finding of the applicant’s lack of credibility was entirely based on the documents alone without drawing any attention to the discrepancies that formed that basis of his finding, the Board could argubly be faulted for having failed to adhere to the rule of fair play.

13.  However, it is noted that the Court of the Appeal in both Re Masud Md and Buniag Renante Lulu referred to above also stated that the rule of Brown v Dunn is not to be applied in a straitjacket. The Court of Appeal in  Re Masud Md at [42] in fact reiterated that the rule of fair play as laid down in Brown v Dunn is not :

“intended to derogate from the principle that while the exercise is one of joint endeavor it remains for the applicant to make his case, or from the need for the applicant, in discharging his burden, to cooperate and provide all necessary information including by answering questions put to him. It is not the Board’s role to assist the applicant in establishing his claim; its role is to ensure that the claim is fairly processed. What fairness demand will depend on the facts of each case”.

14.  After having carefully taken into account the principles discussed above and all the materials before me, I am nonetheless satisfied that the Board had correctly applied the law relating to all the three grounds in the Board’s 1^st Decision and observed a very high standard of fairness.

15.  First, the applicant had chosen to abdicate his responsibility of discharging his burden of proof when he was given an opportunity to do so at the hearing. It is not apparent from the Board’s 1^st Decision that the applicant had given any reason for his decision  in not cooperating with the Board at the hearing, and to provide all necessary information including by answering questions put to him.

16.  Secondly, as stated in the passage quote in [13] above, “it is not the Board’s role to assist the applicant in establishing his claim and its role is to ensure that the claim is fairly processed.”  From the Board’s 1^st Decision , I am satisfied that the Board had taken great care in ensuring fairness upon learning that the applicant’s decision not to testify.  As recorded at [15] of the Board’s 1^st Decision, when the Board learnt that the applicant elected not to testify, the Board informed the applicant that

“…he was entitled to elect not to testify and that I would draw no adverse inference from his election. I asked him if he was willing to answer my questions and told him that, as he had elected not testify, he was not obliged to answer them and that I would draw no adverse inference if he declined to do so. The Appellant said that he did not wish to answer any questions. I therefore did not put any questions to him.” (Emphasis added)

17.  The passage quoted above demonstrates that the Board was clearly mindful of the importance of not drawing any adverse inference against the applicant for his election not to testify and not to answer any questions.  There is no suggestion that the applicant’s election in not giving evidence and his refusal to answer the Board’s questions was fatal to his appeal against the Director’s earlier decision. Neither can it be shown that Board has drawn any adverse inference from the applicant’s election to remain silent at the hearing.

18.  Thirdly and most importantly, the Board’s 1^st Decision in dismissing the applicant’s appeal is not just premised on the finding of credibility, but also on its conclusion of the availability of the alternatives of state protection and internal relocation by taking into account of the relevant COI. 

19.  In the circumstances, I am satisfied that the Board had adopted the high standard of fairness by not drawing any adverse influence from the applicant’s election is not to testify, and by reminding itself of the low standard of proof required when assessing the applicant’s credibility.   The applicant had chosen not to cooperate with the Board, and not provide all necessary information to discharge his burden of proof.

20.  In any event, the applicant did not in his supporting affirmation or his submissions at the hearing advance for any grounds on the basis of unfairness arising from the Board’s handling of his election not to give evidence. The applicant’s submission before me that he had told the Board everything at the hearing is plainly a lie.  The applicant’s other assertion that his political involvement would expose him to risks is a new claim, which was not before the Board. All in all, I am not satisfied that there are merits in the intended challenge.

Board’s 1^st Decision was out of time

21.  The applicant was required to file a Leave Application for judicial review within 3 months. In this case, the Leave Application in respect of the Board’s 1^st Decision is late for about 2 years and 4 months. When considering if an extension should be granted, a court will have regard to :

(i)    The length of the delay;

(ii)   the reason for the delay;

(iii)  the prospect of success of the intended appeal; and

(iv)  the prejudice to the respondent if an extension of time were granted.: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

22.  In this case, the delay is lengthy. A good reason for the delay shall be required.  The applicant’s explanation for the delay was only provided in the hearing upon this court’s probing.  Apart from stating that he was not aware of the rules, the applicant gave no other explanation for the delay. Ignorance generally is not a good reason for delay.  In the circumstances, after having taking into account the serious delay, the lack of good reason, and the lack of prospects of success in his intended challenge against the Board’s 1^st Decision, this court will be disinclined to exercise its discretion to grant leave to the applicant to file the Leave Application in respect of the Board’s 1^st Decision out of time. 

Board’s 2^nd Decision

23.  The Board’s 2^nd Decision only deals with applicant’s claim under BOR2 risk[8].  The Board decided that it was unnecessary to hold an oral hearing for this appeal in relation to the BOR 2 risk as the Board took the view that the applicant’s submissions and the notice of appeal had provided no additional information.  After having rejected in full the applicant’s account of the 3 creditors in the Board’s 1^st Decision, the Board found that the applicant was not at risk of being subjected to the BOR2 risk of torture.

24.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s 2^nd Decision, nor were such grounds identified in the Form 86 or otherwise. 

Conclusion

25.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.   In the present case, it is plain that the applicant had failed to advance grounds that have real prospects of success to challenge the Board’s Decisions. The Board’s findings of the applicant’s lack of credibility, and of the reasonable availability of state protection and internal relocation, are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

26.  For the reasons stated above, I am of the view that the applicant’s intended challenge to the Board’s Decisions is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[9].

Orders

27.  The Form 86 is amended on the court’s own motion

28.  Refusal to grant extension of time in relation to the Leave Application of the Board’s 1st Decision.

29.  The Leave Application be dismissed.

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