RE MASUD MD

CACV 341/2021

[2021] HKCA 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 341 OF 2021

(ON APPEAL FROM HCAL NO 2816 OF 2018)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

A.  Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To dated 26 May 2021 [2021] HKCFI 1497, refusing leave to apply for judicial review (“Deputy Judge’s Decision”).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“Board”)  dated 3 December 2018 (“Board’s Decision”).  In the Board’s Decision, the Board upheld the decision of the Director of Immigration dated 31 October 2017 (“Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

2.  On 7 July 2021, the applicant filed a Notice of Appeal against the Deputy Judge’s Decision, after the Deputy Judge granted an extension of time so to do.  He has also filed skeleton submissions on 23 August 2021.

3.  At the hearing before this Court on 27 September 2021, the applicant was invited to provide information additional to the written materials which had already been provided to the Court.  The applicant confirmed that he had nothing further to add and was content for his case to be resolved based on the papers before the Court.  At the conclusion of the hearing, judgment was reserved.

B.  Background

4.  The applicant is a national of Bangladesh.  He came to Hong Kong in January 2015, he says to seek protection.  He was arrested by the police in Hong Kong on 3 January 2015 for being a suspected illegal immigrant and was subsequently referred to the Immigration Department. He lodged his non-refoulement claim on 10 January 2015.

5.  The details of the applicant’s original claim, as stated in his non-foulement claim form (“NCF”)  dated 9 October 2017 and supplemented by the record of screening interview conducted by an immigrant officer with him dated 24 October 2017, were set out in §§7, 44 to 47, and 59 of the Board’s Decision.  His personal background, confirmed by him in the oral hearing before the Board on 15 October 2018, was set out in §40(i)  to (iii)  of the Board’s Decision.

6.  Briefly stated, the applicant’s claim was based on the fear that, if he were to return to Bangladesh, (a) he would be harmed or even killed by Awaimi League (“AL”)  supporters due to the applicant’s support and membership in the opposing Bangladesh National Party (“BNP”)  and (b) he would also face false charges laid against him by Bangladeshi police, arising from the conflicts between AL and BNP.  He provided the following information.

7.  The applicant was from the Munshigonj District of Bangladesh.  He was a member of the young wing of BNP since 2013.  He was promoted to the position of General Secretary of the young wing in January 2014. After the promotion but before the general election which was held on 5 January 2014, the applicant received threats from a man known as Arif that he should either quit BNP or leave the country, or he would be beaten to death.  That was the first time he was contacted by Arif.  Arif was the President of the student wing of AL and he also lived in the Munshigonj District.  Following the general election on 5 January 2014, AL forcefully took power and BNP initiated a large-scale protest.  The applicant and other BNP supporters were beaten up by the AL leaders in the protest.  The applicant was hospitalized after he was beaten up.  The police also framed a “false case of fighting” against him for his participation in the protest.  With the threat from Arif and the false case against him in mind, he decided to leave his home in the Munshigonj District and fled to Dhaka to stay with his paternal aunt for a few months.  After that, he moved to stay with another aunt, also in Dhaka.  The applicant continued to received threatening calls from AL people when he was away from home.  From January 2014 to October 2014, he received face-to-face threats about 8 to 10 times.  He later made arrangement to travel to Hong Kong via Guangzhou and eventually departed Bangladesh on 1 January 2015.

8.  Apparently, subsequent to the screening interview conducted on 24 October 2017, the applicant offered evidence (by submitting copies documents purportedly issued by various Bangladeshi authorities and by way of oral testimony during the Board hearing on 15 October 2018)  to the effect that the alleged false charge against him referred to an incident on 25 April 2014 in Munshigonj. As will be seen below, the Board considered this later version as being inconsistent with the applicant’s original evidence in his NCF and his screening interview, and placed substantial weight on it in reaching its decision.

C.  The Board’s Decision

9.  Following the Director’s Decision, the applicant appealed to the Board.  In the Board’s Decision, the torture risk[1], the BOR 3 risk[2], the persecution risk[3] and the BOR 2 risk[4] were assessed.  The Board rejected the applicant’s non-refoulment claim on all grounds.

10.  The appeal before the Board was heard on 15 October 2018. The applicant appeared in person and was assisted by an interpreter qualified in the Bengali and English languages.  For reasons explained in §39 of the Board’s Decision, the hearing did not last for long.  After the applicant had confirmed some background information and answered a few questions, the applicant indicated he did not want to further participate in the hearing and wished to rely on his written submissions since he was feeling unwell and depressed because of his family and his situation.  The Board expressed that it would like to discuss with the applicant matters concerning his claim, including the newly obtained documents regarding the false criminal charges against him in Bangladesh.  The Board explored the option of adjourning the hearing but the applicant reiterated that he would prefer to rely on the information already available to the Board.

11.  The Board then decided that as the applicant was reluctant to discuss his claim in person, it would consider the claim on the basis of the available information before it and concluded the hearing (§42 of the Board’s Decision).

12.  Besides the brief oral evidence given during the Board hearing, it appears that the bulk of the available information before the Board was the written materials which the Board set out in §9 of the Board’s Decision: (a) the applicant’s written representation dated 10 January 2015; (b) his completed NCF dated 9 October 2017, (c) the written record of the screening interview conducted by the immigration officer dated 24 October 2017, (d) the Director’s Decision dated 31 October 2017, (e) the applicant’s Notice of Appeal/Petition dated 10 November 2017, (f) an arrest warrant issued by the Chief Judicial Magistrate in Munshigonj on 26 August 2014 against the applicant, (g) a complaint letter issued on 25 August by the same Magistrate, (h) an “Initial Facts Statement” issued by the same Magistrate on 8 June 2017 and 8 July 2017; (i) a letter to the officer in charge of the Munshiganj police station by a police officer requesting action be taken against the applicant and his associates for a number of alleged criminal offences on 25 April 2014, (j) a letter appeared to be signed by the President of the Bangladesh Nationalist Youth Party, dated 8 August 2017, and (k) country of original information (“COI”)  from a variety of sources.  Also among the written materials considered by the Board was the appeal statement submitted by the applicant which the Board did not consider to be material to its decision (see §83).

13.  Items (a)  to (c)  were the documents which contained the applicant’s original evidence of his claim, and those together with the COI at item (k)  were the evidence before the Director.  Items (f)  to (j)  were translated documents (translated from Bengali to English)  concerning criminal charges against the applicant which were only made available to the Board shortly before the hearing. From §59 of the Board’s Decision, it is tolerably clear that items (f)  to (j)  were only submitted by the applicant after his screening interview and were probably not available to the Director before his decision was made.  As for item (i), the letter appeared to be signed by the President of the Bangladesh Nationalist Youth Party, but it is not clear at what stage it was provided by the applicant.

14.  The Board found the available information to contain inconsistencies, gaps and a lack of particulars, which it would have liked further to discuss with the applicant.  The Board also had doubts as to the provenance and veracity of the translated documents, on which the Board wanted to seek clarification from the applicant.

15.  The Board’s concerns ultimately led it to the conclusion that the applicant was not a witness of truth.  In §72, the Board stated:

“The Board has carefully considered the Appellant’s claims and had regard to the principles and the law as outlined above. Having done so, and having regard to the internal incoherence of his statements, their consistency with each other and the relevant level of detail he has been able to provide, the Board has formed the view that the Appellant is not a witness of truth. As discussed above, there are many inconsistencies to which the Board [sic] has not been able to adduce sufficient evidence to make out the Appellant’s claim.”

16.  As shown in §§40(iv), and 49 to 54 of the Board’s Decision, before the oral hearing was shortly concluded when the applicant declined to participate further, the Board did ask a few questions in an attempt to address some of the Board’s concerns about the applicant’s case. But the Board did not have the benefit of oral evidence from the applicant to clarify the Board’s concerns about the applicant’s claim.

17.  It is clear that the applicant’s reluctance to give further oral evidence was fatal to his claim.  The Board came to view that the written materials before it, without further clarification or supplement by way of oral evidence from the applicant, were insufficient for it to be satisfied that the applicant had discharged his burden in establishing the facts of his case.  The applicant’s refusal to participate in the oral hearing even led the Board to conclude that no weight should be attached to his written assertions (which were mere assertions in the Board’s view).  This is clear from §§76 to 78 of the Board’s Decision:

“76.   …The burden upon the Appellant in terms of his factual claims is a relatively light one, as set out above, but it cannot be discharged merely by making a set of limited written assertions, which are untested and contain insufficient detail and inconsistencies.  The Appellant decided to appeal against the decision made by the respondent and in order to discharge his part of the “shared” burden of proof, was required to attend the hearing to give evidence, to answer the Board’s questions and deal with matters needing clarification.  His failure to participate in this process leads the Board to conclude no weight can be attached to what are essentially mere assertions.

77.  As discussed earlier, the Board invited the Appellant to attend a hearing as the available information provided by him was insufficient and the Board had a number of questions in order to clarify aspects of his claims.  Although the Appellant was interviewed by the Immigration Department, the Board still had some questions regarding his claims the Board concluded it would be necessary to question the Appellant thoroughly in order to properly establish the facts of the events he has claimed which has led to his claimed risk of harm. However, the Board was unable to do so because although he did attend the hearing, the Appellant said he essentially wanted to rely on information he had already provided to the Department and that he was unable to continue with the hearing.

78.  The Board is required to make an independent decision in relation to the Appellant’s international protection claim.  The conclusions reached by the respondent do not bind the Board.  Due to the Appellant’s reluctance to continue with the hearing, and the limited and insufficient information submitted with his NCF and at interview, his account of events continues to stand as mere assertions and little or no explanation of various matters concern has been provided.  The Board’s concerns are set out in more detail below”

18.  The Board summarized its concerns in §§79 to 82:

“79. The first concern to be dealt with is the timing of the Appellant’s application for his first China visa and passport which was in November 2013 and reasons for doing so at that time. This was prior to the Appellant’s claimed appointment as a General Secretary of the youth wing of the BNP. He has provided a letter purporting to be from the President of his branch of his organization and the concerns about this letter were discussed earlier, not least is the person who has written this letter has not identified himself or herself. There is therefore a question as to the Appellant’s claimed position with this organization. The Board did not have the opportunity to asking the Appellant about his involvement or details of his commitment to this group, why he joined, his knowledge of BNP politics and the general political situation in the timeframe he has referred to.

80. Another concern was the sequence of events claimed by the Appellant, apart from the application for the China visa and passport. This includes the nature of the threats he claims to have received; the frequency of those prior to his being appointed General Secretary and after; whether he did indeed have any face to face encounters with people he claims were threatening him; his reason for flight after the protest; details of how he could be identified by police as having participated in the protest; the reasons for his being targeted and whether anyone else in the BNP youth wing was targeted and allegedly falsely charged with offences for the January 2014 protest.

81. The Board was also concerned with the reason the Appellant had submitted documents, namely the arrest warrant, complaint and details of charges made against him which do not refer to the January 2014 protest but refer to another event in April 2015 [sic] which he did not originally mention in his claims. The Board had questions in relation to how these documents were obtained, how they were served on him, how his friend had acquired them and why he was relying on them and why he had provided these as they do not support his original claims.

82.  The Appellant has also claimed to have fled his home area and lived in Dhaka in two separate places for a reasonable amount of time without being located either by the police by any AL members, although he has claimed that he threatening phone calls continued.  According to the Appellant he managed to live in Dhaka from around January 2014, with some secret visits to his home and one attendance at a BNP meeting in April 2014, after which he left the country on 1 January 2015 without incident.  If, as he has claimed an arrest warrant was issued for him in or around January 2014, it is likely, according to the COI that he may have been questioned or stopped when trying to leave the country.”

19.  At §83 of the Board’s Decision, after the summary of its key concerns, the Board repeated that “Without further information, the Board is not satisfied the Appellant has established any of the facts he has asserted” (emphasis added).

20.  It is not apparent from the Board’s Decision whether the Board’s view was formed before, during or after the Board hearing.  From §39 of the Board’s Decision, whilst the Board did tell the applicant that the Board would like to further discuss his claim with him, it does not appear that the applicant was warned that his case was bound to fail unless he continued to participate in the oral hearing.

D.  The Deputy Judge’s Decision

21.  On 10 December 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The Deputy Judge quoted the applicant’s grounds for judicial review at paragraph 22 of the Form CALL-1 ([2021] HKCFI 1497)  and set out his reasons for refusal at §§22 to 28:

“22. The Applicant advanced the following grounds in support of his application for leave to apply for judicial review:

(1)  the Applicant was not educated;

(2)  no lawyer was provided to him for advice;

(3)  the Board did decide the case on assumption, even without considering many serious evidence provided; and

(4)  reversal of the Decision of the Board and Director of Immigration as they both infer no case in the absence of another evidence.

23. As for the first ground, the fact that the Applicant is uneducated is a disadvantage in that he may not fully understand the law and his rights. But that as such is not a ground for appeal unless as a result he did not have a fair trial or that his disability was taken advantage of by the decision maker. Having rigorously examined the Director’s Notice, the Board’s Decision, the non-refoulement claim forms and all the available documents with anxious scrutiny, the Court was unable to find the slightest suggestion that the Director or the Board had taken advantage of his disability. He was provided with an interpreter qualified in the Bengali and English languages. The Board explained to him there were issues which the Board wanted to discuss with him relating to his case. The Applicant said he did not wish to answer the questions to be raised by the Board because he said he was unwell. The Board offered him an adjournment. He refused and affirmatively insisted to rely solely on what he had submitted in writing and refused to answer questions. The Board was satisfied that the Applicant understood his rights and exercised his option. Respecting his wish, the Board had him to confirm his identity and the truthfulness of the documents he relied on. Then, the Board undertook a joint endeavour with the Applicant by relying on his documents and written submissions to assess his fears and risks. The Board reminded itself of the applicable legal principles, the burden of proof and standard of proof, and considered all the applicable grounds under the USM. The Court was satisfied that the Applicant was in no way disadvantaged by his lack of education.

24. As for the Applicant’s complaint about lack of legal representation before the Board, the fact is he had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview. All the benefit that legal representation could have afforded him is contained in his written submissions and non-refoulement claim form presented to the Director, which were also presented to the Board. He also had the services of a qualified interpreter at the oral hearing before the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefit which legal representation could have afforded him was before the Board. In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.

25. As for his complaint that the Board decide the case on assumption, even without considering many serious evidence provided by him, this is not true. As mentioned in paragraphs 14 to 16, the Board had directed its mind to the legal principles and its duty to undertake a joint endeavour with the Applicant to assist him to prove his case. The Applicant’s so called “serious evidence” is just his own unsupported assertions. The Board tried to ask questions of the Applicant which if properly answered might remove ambiguities and doubts and boost his case of risks and fears. But he refused. The Board’s Decision was not based on assumption but on the Applicant failing to discharge his burden of proof even to the relatively low standard. There is no substance in this ground.

26. The Applicant’s last ground is just an appeal against finding of facts by the Board. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[12].

27. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. It gave clear reasons for its findings summarized in paragraphs 16 to 21 above. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Board’s Decision was utterly without fault.

Conclusion

28.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable. There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.”

22.  Whilst the Deputy Judge recognized that the applicant’s refusal to given further oral evidence was fatal to the applicant’s claim in the Board’s reasoning, he did not see any grounds of appeal arising from that because it was the applicant’s own choice to rely on the written materials before the Board.

E.  Grounds of appeal

23.  The applicant filed the Notice of Appeal dated 7 July 2021 to appeal from the Deputy Judge’s Decision.  His stated grounds of appeal are that he will face hardship if he were to returned to his home country, that the Board significantly relied on news sources which are not officially recognized, or are simply hearsay, or on cases which are outdated considering the dramatic changes, and that the lack of credible sources of information has resulted in the Board making groundless speculations.

24.  The applicant lodged written submissions on appeal 23 August 2021.  In addition to reiterating the factual background of his claim and repeating the grounds in his Notice of Appeal, the applicant raised a number of arguments which could be summarized below:

(1)  the Deputy Judge erred by not applying the principles of irrationality and procedural unfairness or the required high standards of fairness to the Board’s decision;

(2)  the Deputy Judge did not properly analyse the applicant’s claim, and his decision was unreasonable;

(3)  the Board failed to give a sufficient chance to the applicant to arrange relevant evidence for his claim and appeal; and

(4)  the Board’s failure to evaluate and make a finding as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh, and to analyse and assess whether state protection exists, was irrational; and the Board misdirected itself as to the extended meaning of state protection.

F.  Discussion

25.  Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established salient principles which this Court has adopted in dealing with appeals of non-refoulement cases.

26.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board, the Court should not usurp the role of the Director or the Board, and will only intervene if public law grounds for doing so are established.  See: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14; Re Md Shohel Sheak [2018] HKCA 714 at §13.

27.  Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at §§§38 and 39.

28.  In other words, the Deputy Judge in this case was not tasked to make primary fact findings of the applicant’s claim.  His responsibility was to examine whether the Board made any errors in assessing the applicant’s case.

29.  In an appeal against the Deputy Judge’s refusal of leave to apply for judicial review, the Court of Appeal would only examine the Deputy Judge’s Decision in light of the grounds advanced by the applicant. It is not the role of this Court to examine Board’s Decision afresh as if it is a fresh application for judicial review.  If no viable ground is put forward to reverse the Deputy Judge’s Decision, the appeal should be dismissed.

30.  The applicant’s grounds of appeal as stated in the Notice of Appeal and his skeleton submissions were prepared without the benefit of legal representation.  Broadly speaking, the applicant’s grounds of appeal were that there was procedural unfairness, irrationality or error of law in the Board’s Decision and that the Deputy Judge’s failure in taking into account those matters has rendered the Deputy Judge’s Decision unreasonable and erroneous in law.

31.  Having carefully considered the materials before this Court, 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’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.

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 behaviour 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-foulement claim hearings which require a high standard of fairness.

37.  In concluding that the applicant was “not a witness of truth” (§72)  that “without further information, the Board is not satisfied that the Appellant has established any of the facts he has asserted” (§83), it seems the Board meant that it disbelieved the truth of the applicant’s account of events personal to himself and the authenticity of the documents be submitted, but not the general factual background of political violence in Bangladesh asserted by him.  Indeed, at §68 of the Board’s Decision, the Board accepted on the independent COI that politically motivated violence occurs in Bangladesh and especially around the time of general elections, and that political opposition members were reportedly actively targeted by the government following the general election in 2014 and some were arrested.

38.  As reflected in §§49 to 60 of the Board’s Decision, it appears that the Board was able to ask questions regarding two aspects of the evidence: (1) the timing of and the reasons for the applicant’s application for his first passport and China visa and (2) the timing of the incident leading to the alleged false criminal charge(s).  Even then, though with the benefit of hindsight and from the Board’s perspective one would perhaps be able to tell the inconsistencies that generated the lines of questioning, it is far from certain that the applicant would be able to appreciate the specific points of concern held by the Board.  But it does not appear that the Board had expressly pointed out even in general terms the perceived inconsistencies or the conclusions which might be drawn, and we do not think the perceived inconsistencies are incapable of intelligible explanation.

39.  Further, other than on those two areas, it seems that no other questions were put by the Board to the applicant (because the hearing was concluded).  Nor was his attention drawn to other perceived inconsistencies, gaps, lack of particulars in the applicant’s asserted facts (based on an assessment on the written materials before the Board)  to alert the applicant to the fact that, essentially, his entire account of events including the translated documents would not be accepted by the Board unless he continued to answer questions in the oral hearing.

40.  As shown in §§23 to 25 of the Deputy Judge’s Decision, he was aware that the applicant’s refusal to answering questions raised by the Board was detrimental to the applicant’s case.  But he considered that, in light of the applicant’s declining to participate in the oral hearing, there was nothing improper for the Board to make its assessment based on the available written materials and to reach the conclusion as it did.

41.  We bear in mind that, as provided by section 8 of Schedule 1A to the Immigration Ordinance Cap 115, the Board may determine an appeal without a hearing if the Board, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be determined without a hearing.  Therefore, the Board is not mandated to order an oral hearing or to request oral evidence from the applicant.  We also note that if a claimant fails to appear in a scheduled hearing before the Board, the Board could still proceed to assess the primary facts asserted by the claimant based on the papers before it and to make a decision: see, for example, Re Hidayah [2018] HKCA 595 at §15.

42.  In the present case, since it was the applicant who declined to give further oral evidence or to adjourn the hearing, it might be said that the oral hearing was stopped at the request of the applicant, so that the Board should be entitled to proceed to a determination based on the papers and whatever little oral evidence was provided by the applicant before the hearing was concluded.  Nothing said above is intended to derogate from the principle that while the exercise is one of joint endeavour 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 demands will depend on the facts of each case.

43.  We acknowledge that the Board was perhaps in a difficult position.  The Board clearly wished to raise matters with the applicant, and was frustrated in its attempt to do so.  But the Board still apparently did not explicitly put to the applicant questions on matters which were in its view determinative – such as the inconsistency in respect of the false charges, the events occurring in January and April 2014, the provenance and authenticity of the translated documents, as well as the COI related to provenance and authenticity of the translated documents.

44.  Therefore, on the particular facts of this case, we think it reasonably arguable that a procedural unfairness occurred, because:

(1)  an oral hearing was ordered, suggesting that the Board was of the view that this case could not be resolved without an oral hearing;

(2)  an oral hearing was in fact held and attended by the applicant, bringing into play all the rules applicable to an oral hearing;

(3)  two apparently crucial aspects of evidence were explored by the Board in the brief oral hearing, but the questions asked arguably fell short of what would be required by the rule in Browne v Dunn;

(4)  other matters of concern, which were determinative in the Board’s decision, were not directly explored, nor were the consequences (or potential consequences)  of that apparently directly put to the applicant.

G.  Conclusion

45.  To meet the threshold for granting leave to apply for judicial review, the applicant has to show reasonable arguablility, and we have come to the decision that that threshold was met.  The Deputy Judge erred in refusing leave in that he failed to take into account the reasonable argument of the procedural unfairness we have identified above.  We think that argument is a proper one to raise within the broadly drafted grounds 3 and 4 set out in the Form 86.

46.  We will allow the appeal and grant leave to apply for judicial review on the ground that the Board’s Decision may have been tainted by procedural unfairness or the lack of high standard of fairness to which the applicant was entitled.