Ab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 903/2017

[2018] HKCFI 2804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 903 of 2017

BETWEEN

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 counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 50-year-old male who claimed to be an ethnic Rohingya born in Myanmar arrived in Hong Kong on 27 July 2006 with a false Singaporean passport, and after his refugee claim was rejected by the UNHCR in 2011, he surrendered to the Immigration Department and lodged a torture claim on the basis that if he returned to Myanmar he would be persecuted, harmed or killed by the authorities due to his Rohingya ethnicity. He has since been released on recognizance pending the determination of his claim which essentially involved the central factual issue of whether he is indeed a Rohingya from Myanmar.

2.According to his claim the applicant was born in Village Dhumbhain, Arakan, Myanmar of Rohingya ethnicity.  As the Myanmar government did not recognize the Rohingyas as their citizens, his birth was not registered by the government, nor was he issued any birth certificate.  Instead it was just recorded by his village chairman, and when he was at the age of six or seven years in around 1974 or 1975, he was smuggled by his parents to Chittagong in Bangladesh to reside with his paternal uncle and his family where as a non-resident he did not receive any formal education, and that he had worked in various manual jobs such as a farmer and rickshaw driver and practices as a Muslim.

3.In 1995 when the applicant was about 27 years old, his parents arranged for him to marry a Rohingya wife, and in 1996 he intended to return to his parents’ home in Arakan, Myanmar but was warned by a fellow Rohingya living in Chittagong that situation in Arakan was worse than in Chittagong and that a payment was required to be made to the village chairman by returnees.  Nevertheless the applicant traveled back to his parents’ home in Arakan in 1996 where he was assaulted by a military group for failing to make the required payment which his parents subsequently made to the village chairman, and for which he was issued a white-coloured identity card to signify his birth in Myanmar and his Rohingya ethnicity.

4.After staying for several days in the village in Arakan, the applicant found life difficult as a Rohinyga in Myanmar and as he was apprehensive of further assaults by the Myanmar military, he paid for a travel document or permit issued by the village chairman and departed Arakan with his wife to return to his paternal uncle’s home in Chittagong, Bangladesh.

5.After his wife and paternal uncle had passed away over the years in Chittagong, and as the Bangladeshi government started to get rid of Rohingya people from its country, the applicant in June 2006 returned to his home village in Arakan in Myanmar with the assistance of an agent where he was put in forced labour in a farm by the village chairman.

6.One day in July 2006 while he was on his way to work, he ran into three drunk Buddhists in the village who verbally abused him for being a Rohingya and proceeded to assault him by punching and kicking all over his body which subsequently required medical treatment.  Later when he heard that certain military group under the Myanmar government was looking for him in the village, the applicant felt it was no longer safe for him as a Rohingya to remain in Myanmar, he therefore obtained a travel permit from the village chairman and with the assistance of an agent he first fled to Yangon, and from there he flew with the agent to Hong Kong on 27 July 2006 with a faked Singaporean passport provided by his agent which was later taken away by his agent who then disappeared.

7.The applicant then made a refugee claim to the UNHCR, but after his claim was rejected in 2011, and upon obtaining further documentary proof from his home village in Myanmar through a friend he lodged a torture claim with the Immigration Department for which he completed a Torture Claim Form (“TCF”) on 30 December 2013, and when his claim was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism (“USM”) for which he completed a Supplementary Claim Form (“SCF”) on 4 July 2014 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.In support of his claim the applicant also submitted amongst other documentary evidence his identity card and travel permits or documents issued by the village chairman of Arakan as part of the proof of his claim as a Rohingya from Myanmar.     

9.By a Notice of Decision dated 26 February 2016 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 found material irregularities and faults in the identity card and travel permits produced by the applicant as well as inconsistencies in the information provided by him in his TCF, SCF and screening interviews and his UNHCR documentations that have significantly damaged the veracity of his claim and that his claimed identity as an ethnic Rohingya is not established.

11.The Director then proceeded to assess his non-refoulement claim under all the applicable grounds on the basis and at the highest that Myanmar is the place of his habitual residence where he was born and had lived in, and found the low intensity and frequency of the past ill-treatment from the military group or the drunk Buddhists as isolated incidents and indicative of slim chance of recurrence upon his return to Myanmar, while reliable and objective Country of Origin Information (“COI”) show that state protection and reasonable internal relocation alternatives are also available to the applicant if he is to return to Myanmar.    

12.By a Notice of Further Decision dated 20 December 2016 the Director again rejected the applicant’s claim after receiving and considering further representations made by him through DLS relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

13.By then the applicant was in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 9 March 2016, and for which he attended two oral hearings on 18 January 2017 and 8 February 2017 before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board, and with closing submission made on his behalf by his lawyer.  On 17 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.In its decision the Board found the general credibility of the applicant questionable for various reasons including the following:

(a)  that there was no record of his arrival in Hong Kong on 27 July 2006 on foot of a false Singapore passport or any other evidence in support of his such assertion;

(b)  that based on the physical condition of the document and the lack of legible information on it that the identity card is not an authentic document which can be relied upon to establish the applicant’s identity;

(c)  that the travel documents or permits were not authentic or reliable and cannot be attached any weight insofar as they purport to show the applicant’s identity;

(d)  that there were inconsistencies or discrepancies in the applicant’s evidence which could not be explained when viewed in light of his lack of general credibility;

(e)  that the applicant was not able to communicate effectively with a Rohingya interpreter during his interview with the UNHCR and used a Hindi interpreter during his screening interviews before the Immigration Department; and

(f)  that no weight could be attached to the applicant’s evidence as to the past events that he claimed to have experienced.     

15.The adjudicator therefore concluded on the totality of the evidence that the applicant failed to establish that he is a native of Myanmar or that he is of Rohingya ethnicity, and that Bangladesh has been his country of habitual residence for most of his life in which he did not make any claim for non-refoulement protection, and concluded that his claim failed on all applicable grounds.

16.On 17 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward various grounds subsequently amended as follows for his intended challenge:

(1)  that the adjudicator was unreasonable in making an adverse credibility finding based on an unreasonable evaluation of documentary evidence;

(2)  that the adjudicator was unreasonable in attributing excessive weight to the lack of immigration records regarding the applicant’s entry into Hong Kong;

(3)  that the adjudicator failed to provide reasons for his findings that the applicant’s evidence was inherently implausible;

(4)  that the adjudicator was unreasonable in finding that he was unable to attach any weight to the documents on account of the applicant’s general credibility;

(5)  that the adjudicator made unreasonable and speculative findings based on his perception of the applicant’s language abilities;

(6)  that the adjudicator failed to take into account relevant considerations and gave inadequate reasons for his finding that the applicant ‘is more likely than not a native of Bangladesh’;

(7)  that the adjudicator was irrational and/or acted for want of jurisdiction in making a finding that the applicant had failed to establish he was of Rohingya ethnicity and that he was from Bangladesh, and was procedurally unfair in coming to such a finding without putting a case to answer; and

(8)  that the adjudicator failed to consider that the applicant is effectively stateless.  

17.As stated above, at central issue is of the adjudicator’s determination of the applicant’s claim of being of Rohingya ethnicity at risk of harm if he is to return to Myanmar, which is a question of fact based on the adjudicator’s findings of the evidence before the Board and his assessment of the applicant’s credibility, of which Ms Lau submits had a profound effect on the final determination of his appeal by the Board, and involves the relevant principles with regard to the correct approach to credibility assessment in general, including requiring a decision-maker to clearly find and identify the material facts that are fundamental to why an individual fears persecution or ill-treatment which go to the core of the claim before going on to assess the credibility of each material fact and determining which material facts are accepted, rejected or uncertain in an objective and systematic way with the correct standard of proof.

18.The relevant principles have been clearly set out by the Court of Appeal in TK v Jenkins & anor [2013] 1 HKC 526 including the correct standard of proof, and in deciding whether there is substantial ground for believing that the applicant would be at risk of harm if he is to return to Myanmar, the adjudicator would need to make findings of primary fact as to the applicant’s claim of being an ethnic Rohingya from Myanmar, where the burden lay with the applicant to convince the Director and the adjudicator that what he said was true subject to high standards of fairness and on the balance of probabilities under the civil standard.

19.Recently in Re Tutul [2018] HKCA 552 and Re Litoun Mounsy [2018] HKCA 537, the Court of Appeal has reiterated the general propositions that the role of the Court in a judicial review of non-refoulement cases is not to provide a further avenue of appeal, as the primary decision makers are the Director and the Board, and though in such cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board, as the assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director, and that the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. 

20.With these principles in mind, I now turn to consider the grounds put forward by the applicant for his intended application. 

Grounds (1) and (4)

21.Grounds (1) and (4) which relate to the adjudicator’s consideration of the original documents and their impact on the applicant’s credibility can be considered together, of which Ms Lau submits that the adjudicator clearly made a finding that the documents produced by the applicant are not authentic thereby raising an allegation of forgery as opposed to mere unreliability, when the burden therefore passes to the adjudicator which he failed to discharge that the documents were forged, as he relied on no evidence beyond his own non-expert and uninformed observations which were limited to the fact that the information contained therein appeared to be incorrect, that they were worn and appeared to have been tampered with, of which Ms Lau submits is therefore based on a number of inferences as opposed to cogent evidence which is required in an allegation of forgery, as it was held in RP (proof of forgery) Nigeria [2006] UKAIT 00086 that mere unfounded inference will not suffice to satisfy the high standard of proof in an allegation of forgery and such a finding must be supported by actual evidence.

22.Ms Lau further points out that the adjudicator in assessing the authenticity of the identity card took an irrelevant consideration into account of its physical condition, when he stated that “The original of this document is in very poor condition and contains very little legible information” [57], and that “Based on the physical condition of the document and the lack of legible information on it, I am not persuaded, even to the low standard required, the identity card is an authentic document …” [65], and submits that how worn a document is has no rational bearing on its authenticity but could rather be in support of the fact that it is in fact genuine and old, and it was therefore unreasonable or otherwise irrational for the adjudicator to make a finding on authenticity on that basis.

23.Ms Lau further submits that there is no suggestion that the adjudicator consulted any country expert or conducted any COI search into documentation used by the Rohingya and made no enquiries into the type, availability, form, substance or appearance of documents commonly held by Rohingya, nor is there evidence that he did consider the well-documented difficulties for Rohingyas in getting documentation or the refusal of Myanmar authorities in giving citizenship to Rohingyas, both issues being directly relevant to the physical condition of the document, and that he failed to clarify how he believed the documents to be inauthentic, and instead he placed the burden on an illiterate applicant and his poorly funded lawyer from DLS to prove a matter that not only was he better placed to prove but was bound to prove by virtue of his allegation of forgery.

24.Ms Lau argues that an allegation of forgery is highly material to the assessment of credibility, and the adjudicator found that by providing what he considered to be non-authentic documents the applicant’s general credibility was damaged, and by making such a finding without discharging his own burden and by casting an excessive burden on the applicant, the adjudicator was unreasonable and unfair, and that it was also unreasonable for him to simply state that he placed no weight on the documents merely on the basis of having previously drawn adverse inference as to the applicant’s credibility, and hence when one considers Grounds (1) and (4) together, the Kafkaesque quality of the adjudicator’s decision-making becomes quite apparent that on one hand because the applicant has produced documents of dubious authenticity, he is not credible, and on the other hand, because he is not credible, the documents cannot be attributed any weight, and hence this viciously circular logic made it impossible for the applicant to make his case.

25.In the Board’s decision the adjudicator made the following findings in respect of the applicant’s identity card:

“ The Identity Card

57. The original of this document [HB 89 – 92] is in very poor condition and contains very little legible information. The lamination is not intact and the document appears to have been tampered with. The image in the photograph is very faint and appears to be an image of a child. The height of the holder is stated to be 4′4″ (4 feet, 4 inches). The date of issue is stated to be ‘10-7-94’.

58. I pointed out to the Claimant that card appeared to have been tampered with and seemed to contain entries in different inks. He replied ‘Because of the time and the way it has been handled, the inscriptions are fading and much of it has disappeared.’

59. I asked him when the photograph on the document had been taken. He said ‘Before leaving Bangladesh some time in 2006, I took this photograph.’ On his own evidence, the Claimant was 28 years old in 2006. I observed that the photograph appeared to be that of a child. The Claimant relied ‘Yes. But this is my photo.’

60. When asked during the 1^st interview about the height recorded on the identity card, the Claimant said ‘This must have been a mistake made by the village Chairman.’

61. I asked if the Claimant was maintaining that he was 4 feet 4 inches tall at the age of 28 years. He replied ‘I’m not literate. I can’t read or write. I received this from the Chairman and I don’t know what’s written there. Still, I don’t know what’s written there. The Chairman might have made a mistake in writing.’

62. I again asked if it was correct that he was 4 feet 4 inches tall at the age of 28. The Claimant replied ‘It’s wrong.’ When I observed that, at least as regards the height of the holder, the identity card was not reliable; the Claimant said ‘Even so, the document is mine.’

63. I also pointed out to the Claimant that the identity card purported to show on its face that it had been issued on 10 July 1994 whereas the Claimant had said that he had been given the identity card in 1996 and had only returned to Myanmar in 2006. The Claimant responded ‘I don’t know. I can’t say anything about this.’

64. In the Immigration Officer’s Notice of Decision, other apparent deficiencies in the identity card are referred to.

65. Based on the physical condition of the document and the lack of legible information on it, I am not persuaded, even to the low standard required, that the identity card is an authentic document which can be relied upon to establish the Claimant’s identity.”

26.Whilst it may seem simplistic in the way the adjudicator phrased in paragraph 65 as to his findings on the identity card, it is clear from the preceding paragraphs that he did not just consider the physical condition of the identity card or the lack of legible information on it in arriving at his conclusion, but that he also took into account, if not more so, the inherent implausibility of the applicant’s age and height in relation to the image shown in the photo on the card, or the discrepancies as to the various dates and years over its issue as referred above, as well as the applicant’s answers to the various questions raised about those discrepancies at the hearings of which the adjudicator had had the benefit of direct and personal observation of the applicant during the hearing, and that it was on the totality of the evidence that the adjudicator arrived at his conclusion of his assessment of the authenticity or reliability of the identity card.

27.In fact, it is clear that the adjudicator also referred to those deficiencies observed by the Director of the card in its decision, and to show the complete picture it would be relevant to recite them here his observations in paragraph 10.1 of his decision [B1:106–107]:

“ (i) the identity card holder’s name is different from the name you all along provided for your non-refoulement claim;

(ii) date of birth of holder is read 194– (the last digit was unidentified) while your reported year of birth is 1968. The insertion of any number into the missing place would make up an age far much older than your reported age;

(iii) father’s name is ‘Daw (middle name illegible) Ahmmad’, partly different from ‘Kabir Ahmed’ as you have reported in the TCF and SCF;

(iv) date of issue is 10 July 1994, unmatched with your claim that you returned to Arakan from Chittagong in 1996 (First Return), for which the card was issued by the village chairman in that trip;

(v) your height was recorded as 4 feet 4 inches upon the issuance of the card which appears not commensurate with your actual measurement as an adult in 1994 or 1996;

(vi) the card lacks the signature of the holder;

(vii) the holder’s address is different from what you have reported in the TCF, SCF and the Interviews; and

(viii) photo of the holder is not discernible.”

28.As for the applicant’s temporary travel documents or permits which he claimed to have obtained from the village chairman on the two occasions when he left Arakan, the adjudicator found that they appeared to have been tempered with and that their authenticity also questionable, and that he was not persuaded that they are authentic or reliable documents and that he was unable to attach any weight to them in relation to the applicant’s identity for the reasons set out in paragraphs 66 – 70 of the decision [B1:134–135].

29.The adjudicator then concluded in the decision as to his findings of the applicant’s documents as follows:

“ 72. The Claimant’s evidence relating to the purported identity card inherently lacks credibility. His account of how he came to obtain the other original documents also lacks credibility. I am not persuaded, even to the low standard required, that the Claimant obtained these documents in the circumstances described by him and I am unable to attach any weight to the documents insofar as they purport to show the identity of the Claimant.

73. The fact that the Claimant has submitted documents of such clearly dubious authenticity in support of his claim further damages the general credibility of the Claimant.”  

30.Thus brings me back to the applicant’s submission that the adjudicator was unreasonable in making an adverse credibility finding based on an unreasonable evaluation of the documents as not authentic thereby raising an allegation of forgery as opposed to mere unreliability, the shared burden of which the adjudicator failed to discharge, and then used the applicant’s failure to meet the excessive burden to make an adverse credibility finding.

31.In the leading case with regard to the authenticity of documents, Tanveer Ahmed [2002] UKIAT 00439, which Ms Lau submits should be the approach adopted in Hong Kong, it set out the following principles:

(1)  In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

(2)  The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

(3)  Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it.  The allegation should not be made without such evidence.  Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable.  The decision maker still needs to apply principles (1) and (2).

32.In that case the appellant, a citizen of Pakistan, appealed against the determination of an adjudicator which found that certain arrest warrant and FIR produced by him in support of his claim for asylum in UK from persecution by the authorities in Pakistan were not genuine, on the grounds that the adjudicator’s rejection of their authenticity was based on an approach which incorrectly placed the burden on the appellant.

33.In dismissing the appeal and in setting out the above principles, the Appeal Tribunal stated as follows:

“ 35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).

36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are cost and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document of scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office.

37. We accept Ms Panagiotopoulou’s statement that the Respondent alleged that the documents produced by the Appellant were forgeries.  It is not clear whether the Adjudicator found that the documents were forgeries.  He did not state in terms that they were.  This is a case in which it was not necessary for the Adjudicator to make a specific finding as to whether the documents were forgeries.  The Adjudicator’s finding about two of the documents was in the following terms, ‘I do not accept that there is a reasonable likelihood that either the warrant or the FIR is genuine’.  He went further and found that the documents had been ‘manufactured’.  It is clear that the Adjudicator gave little or no weight to these documents.  He could have been even more specific, as was the case when he said that he gave no weight to the letter from the MQM in Pakistan.  On the evidence these conclusions were open to him, as were his conclusions in relation to the country evidence.  It is clear that he looked at the documents and oral evidence in the round. Very properly, he considered the question of whether, even if the documents were false, the Applicant’s story could be true.  On the evidence the Adjudicator was entitled to reach his conclusions in relation to the documents and the evidence as a whole.  This evidence supports the final conclusions that the Appellant has not established either a well-founded fear of persecution for a Convention reason or that his human rights would be infringed.” 

34.In the present case the adjudicator clearly stated in his decision that he found the general credibility of the applicant questionable for several reasons [54], including the absence of credible evidence of how he entered Hong Kong, and the discrepancies and inconsistencies between what he stated to UNHCR and in his TCF [55 – 56, and 74 – 80], and that the adjudicator did clearly look at the documentary and oral evidence in the round, as he stated in [71] on the totality of the evidence and on balance of probabilities that he was not persuaded that the documents are authentic or reliable and was therefore unable to attach any weight to the documents in relation to the Claimant’s identity, a conclusion which he was entitled to reach on the evidence before him and with the benefit of hearing the applicant in evidence at two oral hearings, and whilst in raising the issue of authenticity the allegation of forgery may appear to have been inferred, it was in my judgment not necessary for him in the circumstances to make any specific finding as to whether the identity card was a forgery, as he for the reasons stated clearly gave no weight to that document. In the premises I do not find any basis or merit in Grounds (1) or (4) of the applicant.

Ground (2)

35.As for the complaint in Ground (2) that the adjudicator was unreasonable in attributing excessive weight to the lack of immigration records regarding the applicant’s entry into Hong Kong, Ms Lau submits that whilst a decision maker may take into account as damaging a claimant’s credibility any behavior that the Board considers is designed to or likely to be designed to conceal information, mislead or obstruct or delay the handling or determination of the claimant’s claim, the amount of weight that ought to be attributed to this fact lies at the center of the applicant’s complaint under this ground, as there are many reasons why a person seeking asylum will lie about their travel route, and that even if the adjudicator was of the view that there was something inherently implausible about the applicant’s account of how he entered Hong Kong, it was a peripheral and not material matter and therefore that view should not have been attributed such weight that it affected or pre-judged the applicant’s general credibility with regard to the core or material facts of his claim.

36.In his decision the adjudicator considered the lack of immigration record of the applicant’s entry in Hong Kong as follows:

“ 55. The Claimant says that he arrived in Hong Kong on 27 July 2006 on foot of a Singaporean passport in the name of Shah Alam. A search of Immigration Department records revealed no record of such an arrival.

56. There is no other evidence to support the Claimant’s assertion that he used the false passport, nor any other credible evidence to support his assertion regarding the date and manner of his arrival in Hong Kong.  This damages the general credibility of the Claimant.”

37.The applicant’s claim of how he entered Hong Kong is a question of fact that can clearly be verified by his immigration record with the Immigration Department, and the absence of which shows that the applicant did not tell the truth about how he entered Hong Kong, as there is no allegation of mistake or error against the Immigration Department for the absence of such record, and that whatever reasons the applicant might have to lie about his travel route or method of entering Hong Kong such as those suggested by Ms Lau, of which there is no evidence that they applied to the applicant’s case, in my judgment the adjudicator was entitled in the circumstances to take that into account and find that it did damage the applicant’s general credibility, as how and from where he came to Hong Kong were clearly relevant to the determination of the core issue as to his nationality and ethnicity where the burden of proof lay with the applicant, and which the adjudicator was certainly required to take into consideration, and when the veracity of such evidence became questionable, the adjudicator was entitled to find that the applicant’s credibility as a result had been damaged.

Ground (3)

38.As for the applicant’s complaint in Ground (3) that the adjudicator failed to provide reasons for his findings that the applicant’s evidence was inherently implausible in [69] and [72] of the decision when he stated that ‘the Claimant’s evidence as to how he obtained document (b) is inherently implausible and lacks credibility’ and ‘his account of how he came to obtain the other original documents also lacks credibility’ which led him to be ‘unable to attach any weight to the documents insofar as they purport to show the identity of the Claimant.’, as a decision-maker is not entitled to make his own assumptions, conjecture or speculation, nor should they use their own common sense in assessing a torture claim because what is ‘common’ sense in Hong Kong may be ‘uncommon’ sense in another place: ST v Betty Kwan [2014] 4 HKLRD 277.

39.The document purported to be the applicant’s identity card has already been dealt with above, while the other original documents submitted by the applicant as to his identity were the travel documents or permits which he claimed to be provided by the village chairman in 2006 for him to leave Myanmar, and a subsequent one obtained by his Indian friend from the village chairman in 2011 with the same photo of the applicant taken in 2006, and again to give the complete picture as to the adjudicator’s finding about them, this is what he stated in the decision:

“ The Temporary Travel Documents

66. The Claimant submitted the original documents [(a) HB 93/94 and (b) 97]. He says that he was given document (a) by the village Chairman on 13 July 2006, the day following the attack on the Claimant by the 3 drunk Buddhists.

67. Document (a) appears to have been tampered with since it contains entries which appear to have been overwritten on the original entry. When I pointed out to the Claimant, he replied ‘This was made by the Chairman. Since I don’t read and write, I accepted it. It’s with me now.’ Taking the evidence as a whole, I am not persuaded that document (a) is an authentic document or that it can be relied upon to establish the Claimant’s identity.

68. Document (b) contains a photograph of the Claimant which the Claimant says he had taken in Yangon when he was brought there in 2006 (‘2006 photograph’) prior to his departure from Myanmar. The Claimant says that document (b) was obtained from the village Chairman by an Indian friend of the Claimant who comes to Hong Kong frequently.

69. The Claimant says that he gave the 2006 photograph to his Indian friend who took it to the chairman of the Claimant’s village in Myanmar and the Chairman then issued document (b). The Claimant’s evidence as to how he obtained document (b) is inherently implausible and lacks credibility.

70. The authenticity of the document is, on its face, questionable. The document purports to be number 1492/2011, but in the entry ‘Dated’, the year has been altered from ‘2011’ to ‘2012’. The ‘Days Permitted’ for travel also shows the year as 2011.

71. On the totality of the evidence I am not persuaded that documents (a) and (b) are authentic or reliable documents and I am unable to attach any weight to the documents in relation to the Claimant’s identity.”

40.Whilst the adjudicator may not have stated specifically in such terms, it is clear that he did take into account of the facts that document (a) appeared to have been tempered with, that there were discrepancies and alteration as to the year in document (b), the explanation given by the applicant as to those discrepancies and the way the documents were obtained, all of which he concluded on the totality of such evidence that he was not persuaded that they are authentic or reliable to enable him to attach any weight to them in relation to the applicant’s identity, a conclusion which he was entitled to reach in the circumstances that I do not find this ground reasonably arguable.

Ground (5)

41.For Ground (5) in which the applicant complains that the adjudicator made unreasonable and speculative finding based on his perception of the applicant’s language abilities when he stated that ‘The Claimant was not able to effectively communicate in the Rohingya language with the Rohingya interpreters during the interviews at the UNHCR office in Hong Kong.’, of which Ms Lau submits does not adequately explain the circumstances, nor does it justify the adjudicator’s conclusion that the applicant is not Rohingya, and that he was selective in his use of the information in the UNHCR determination which was unreasonable and procedurally improper for him to do so without any real independent assessment or further enquiry into the applicant’s language capacity and the reasons behind it in concluding that as the applicant could not communicate effectively in Rohingya and was therefore likely not to be of Rohingya ethnicity, notwithstanding the fact that he had spent most of his life in Bangladesh which explains why his Rohingya language was interspersed with Chittagong.

42.The relevant part in the Board’s decision when the adjudicator referred to the applicant’s language is as follows:

“ 81. The Claimant’s explanation does not offer a reasonable, or credible, account for the discrepancies referred to above. The Claimant was not able to effectively communicate in the Rohingya language with the Rohingya interpreter(s) during the interview at the UNHCR office in Hong Kong.

82. In completing the TCF, SCF and during his interviews with the Immigration Officer, the Claimant was assisted by a Hindi interpreter. At the hearing he also spoke in Hindi. On his own evidence, the Claimant is a Muslim who has spent most of his life in Bangladesh.

83. Having regard to the Claimant’s general lack of credibility, I am unable to attach any weight to the several original documents which the Claimant has submitted for the reasons to which I have already referred.”  

43.The statement in paragraph 81 that the applicant was unable to communicate in Rohingya language during his interview at the UNHCR is derived from the UNHCR Determination and its accuracy as to fact is not disputed by the applicant, while the statement in paragraph 82 as to facts was based on the applicant’s own evidence, all of which only formed part of the evidence taken into account by the adjudicator in his discussion and assessment of the applicant’s credibility, as he had on more than one occasion clearly stated that it was on the totality of the evidence that he was not persuaded that the applicant is of Rohingya ethnicity.

44.Further, in the UNHCR Determination the applicant stated that his mother tongue was Rohingya with which he used to communicate for eight years in Myanmar while working for the village chairman within the Rohingya community [B2:148–149], in his TCF he also stated Rohingya as his first language [B2:156], and in the Director’s decision it was recorded that the applicant speaks Rohingya, Chittagong, Hindi and Urdu [B1:92:6.1], all of which the adjudicator was entitled to take into account in assessing the applicant’s credibility as to his claim, which he did by applying the correct standard of proof, and that it was clearly not the sole or the determinative factor but rather part of the totality of evidence which led to his eventual findings against the applicant, of which he was perfectly entitled to make under the circumstances and I do not find any merit in this complaint of the applicant.

Grounds (6) and (7)

45.Grounds (6) and (7) can be considered together, in which the applicant complains that the adjudicator failed to take into account relevant consideration and disregarded the majority of his testimony including all past events and evidence relating to his identity but inexplicably accepted one fact that he has spent most of his life in Bangladesh in arriving at the conclusion that he is a native of Bangladesh, which Ms Lau argues is an unbalanced view of the evidence before the Board, and that it was irrational and/or want of jurisdiction without putting a case to answer which was procedurally unfair to the applicant.

46.Ms Lau submits that most jurisdictions do not have any requirement for an applicant’s statement to be confirmed or corroborated by documentary or other evidence in order to be accepted by a tribunal or decision-maker in recognition of the fact that because of their circumstances it is often impossible for applicants to adduce such corroborative evidence in support of their application, and in Hong Kong there is no requirement under the Ordinance for any fact to be proved by way of documentation, and hence the adjudicator acted in excess of jurisdiction and/or procedurally unfair in refusing to accept the applicant’s Myanmar nationality/Rohingya ethnicity on the basis that he did not have documentation to prove the same, and that whilst the applicant’s identity was contested at the Board’s hearing, his nationality was not, and it was never put to him that the adjudicator was minded to make a finding that he was from Bangladesh and therefore he was denied the opportunity to make worthwhile representations and/or sufficient time to respond or adduce further evidence, and hence he was not afforded a fair hearing.

47.As the adjudicator had correctly stated the central issue of the applicant’s claim in the Board’s decision, first at the beginning in paragraph 1: “The Claimant says that he is a native of Myanmar and of Rohingya ethnicity …’ [B1:123], and in paragraph 22 in respect of the applicant’s claim: ‘The Claimant says that he is of Rohingya ethnicity and was born in Myanmar …’ [B1:128], hence it was necessary for him to determine not just whether the applicant was of Rohingya ethnicity but whether he was a Rohingya from Myanmar upon which the applicant based his claim of risk of harm from the authorities in Myanmar, as otherwise if, for example, he were a Rohingya from Bangladesh, it would not be necessary for the adjudicator to assess any risk if the applicant were to return to Bangladesh in relation to which he did not make any non-refoulement claim.

48.In the premises the adjudicator was entitled to determine the applicant’s claim as to both his ethnicity and his nationality for the purpose of assessing his asserted risk of harm upon his return to his home country, and upon the adjudicator’s finding that Bangladesh has been his country of habitual residence, or on his own evidence where he had resided for most of his life, it would have been open to the adjudicator to find no future risk of harm to the applicant in Bangladesh in relation to which he did not make any claim for non-refoulement protection, and I do not find error or procedural unfairness in his determination of the applicant’s nationality.     

Ground (8)

49.As for Ground (8) that the adjudicator failed to consider that the applicant is effectively stateless, Ms Lau submits that despite the fact that he does not have Bangladesh citizenship or a Myanmar passport and that the difficulties faced by Rohingya in establishing citizenship and the deliberate policies of the Myanmar government in denying the Rohingya Myanmar citizenship with frequently changing and increasingly restrictive laws for establishing the same including outlawing of the white identity cards such as that held by the applicant after 2015 are well known, it would have been obvious to the adjudicator that the applicant was essentially stateless, as the Director in his decision took a self-contradictory position that whilst the Myanmar government did not accept Rohingya, the Immigration Department would nonetheless seek to return the applicant to Myanmar if removal procedure were put into effect, and whilst it was not for the adjudicator to consider the actual return of the applicant to Myanmar, it was incumbent upon him to consider the likelihood of persecution if the applicant was so returned in these circumstances.

50.The argument that the applicant is effectively stateless and that the Director’s position is self-contradictory is in fact based on erroneous assumptions and not supported by the findings of either the Director or the Board.

51.The Director’s suggestion of internal relocation alternatives within Myanmar available to the applicant was in fact preceded by his finding that the applicant’s claim of Rohingya ethnicity was not established, and as he was not politically involved in Myanmar it was open for him to return to Myanmar without any risk on the finding that he was not a Rohingya but that he came from Myanmar.  On such basis the applicant was not stateless, nor was the Director’s suggestion of relocation to Myanmar in the circumstances self-contradictory.

52.As for the Board, its position is even clearer on the basis of the adjudicator’s findings in paragraph 89 of the decision [B1:138]:

“ On the totality of the evidence, the Claimant has failed to establish that he is a native of Myanmar or that he is of Rohingya ethnicity. On his own evidence, Bangladesh has been his country of habitual residence for most of his life but the Claimant does not make any claim for non-refoulement protection in relation to Bangladesh.”

53.Again in his consideration of the applicant’s claim under torture risk, the adjudicator stated [B1:140]:

“ 104. For the reasons set out, I am not persuaded, even to the low standard applicable, that the Claimant has established that he is a native of Myanmar or that he is of Rohingya ethnicity. On the basis that he is, more likely than not, a native of Bangladesh he has failed to establish that there are substantial grounds for believing that he would be liable to be subjected to ill-treatment of any sort if he is refouled to Myanmar.

105. The Claimant does not raise any claim for non-refoulement protection under Section 37U of the Ordinance in relation to Bangladesh.”

54.Given his findings as to the applicant’s identity and his country of habitual residence, of which the adjudicator was entitled to on the evidence and for the reasons I have already alluded to above, and having proceeded to find no substantial grounds for believing that the applicant would be subjected to ill-treatment or any applicable risks if refouled to Myanmar or Bangladesh, of which again the adjudicator was entitled to make such an assessment on the evidence before the Board, I do not find any basis in this ground or that it is reasonably arguable.

55.In her skeleton submission Ms Lau concluded that the case involved a number of grounds which she submits as reasonably arguable, but none of which I have for the reasons set out above found to be reasonably arguable, whilst being fully conscious of the fact that had there been any doubt over the Board’s findings as to the applicant’s identity, high standards of fairness would have required that he be given the benefit of a judicial review given the current plights of the Rohingya people in Myanmar, but having proceeded to further consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, ultimately I am unable to find any error of law or procedural unfairness or irrationality in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

56.In the premises and for these reasons I do not see any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.     

Dated the 28^th day of December 2018.

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