Md Nazir Ahmed Sarkar v. Torture Claims Appeal Board and Another

HCAL 519/2017

[2019] HKCFI 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 519 OF 2017

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JUDGMENT

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Introduction

1.With leave granted by this Court on 20 April 2018, the applicant now applies for judicial review of a decision dated 19 May 2017 of the Non-refoulement Claims Petition Office (“NRCPO”) which dismissed his appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) in rejecting his claim for non-refoulement protection under the Unified Screening Mechanism (“USM”).

2.The applicant’s grounds are essentially that the adjudicator acted ultra vires and/or procedurally improperly in making a finding in his decision on torture risk when the appeal/petition was only heard on BOR 2, BOR 3 and persecution risks, that it was contrary to the applicant’s legitimate expectation which arose from a previous finding by the Torture Claims Appeal Board (“Appeal Board”) with regard to his torture claim (CAT), and that the adjudicator applied the incorrect test for the persecution risk.  The applicant therefore seeks an order of certiorari quashing the NRCPO’s decision and an order of mandamus compelling the NRCPO to conduct a rehearing of the applicant’s appeal against the Director’s decision before a new adjudicator.

3.Whilst the NRCPO adopts its usual neutral stance, the application was opposed by the Director that it should not be granted as there was no failure to apply high standards of fairness or procedural unfairness or irrationality in the NRCPO’s decision, that issue of legitimate expectation does not arise, and that the relief sought is academic and unnecessary in light of the availability of internal relocation.  

4.These are essentially factual issues for the Court’s determination, and it would therefore be relevant to first set out the factual matrix and chronology of the applicant’s claim.

Background facts and chronology

5.The applicant, now aged 51, was a Sunni Muslim born and raised in Gaibandha, Bangladesh.  After completing secondary school he went on to study for a Bachelor’s degree in a university in Dhaka but did not completethe course.  It was at that time that he became involved in politics and joined the Bangladesh Workers Party (“BWP”) and later became its chairman in his local constitute.

6.In 1997 he married his wife, also a Sunni Muslim, and moved to live in Dhaka with plans to run for elections.  In view of his popularity in his party, he started to receive invitations to join the Purbo Bangla Communist Party (Sarbahara Party) (“PBCP”), a rival political party which advocated armed struggle for a new Bangladesh state, but when he refused their invitations, he was abducted one day in December 1997 by the PBCP people and was kept for two weeks in a basement somewhere in the Pabna District until he managed to escape and made his way home back to Dhaka.  

7.He did not report the abduction to the police because he believed they were all corrupt, but as he became concerned for his own safety, he began to gradually stop participating in political activities for his party.

8.On 25 March 1998 the applicant returned with his wife to his home village in Ghuridaha for the Independence Day Celebrations, and afterwards when he was on his way back to his ancestral home on his motorbike he heard a gunshot fired from behind, and although he was not hithe suspected that it was fired at him by the PBCP people, and so he abandoned his motorbike and fled to Chittagong to take shelter at his brother-in-law’s place where he stayed for about a month until one day when he saw some of the PBCP people in the market place, he decided that it was no longer safe to remain in Chittagong, and so he left and returned to his home in Dhaka.

9.On another occasion on 19 October 1998 he went with his wife to his home village in Ghuridaha for an important family meeting, and after the meeting they stayed overnight in his ancestral house when he suddenly heard someone shouting his name outside the house, he became frightened and hid on the roof, and when some men came into the house looking for him but could not find him, they threatened his wife that when they found him they would kill him.

10.After the men left the applicant discussed with his wife and decided that they should move for their safety to Syblet where they rented a house in Kazitola for their home, but one day when he saw some of the PBCP people there, he decided for his own safety he should stay away from Bangladesh for as much as possible, but in order to still make a living, he joined his friend’s garment accessories business in Dhaka as a partner responsible for travelling to China and Hong Kong to purchase goods and materials for the business.

11.Having secured his sources for purchasing materials in Hong Kong and China, he decided to form his own garment accessories business in May 1999, and would for the next several years spend most of his time away from Bangladesh travelling not just to Hong Kong and China but also all over South East Asia for his business.

12.However, when he returned to Dhaka in June 2006 after his wife had given birth to their twin sons, one evening on 14 July 2006 several armed men came to his home and abducted him to an unknown place in Gazipur where he was held until a fight broke out amongst those men and in the midst of confusions he managed to escape and made his way back to Dhaka where he hid in his brother’s place, and as he believed those men were from PBCP, he decided to depart Bangladesh for his own safety for good.

Immigration and procedural history

13.With the assistance of an agent the applicant left Bangladesh on 16 July 2006 and arrived in Hong Kong on the following day when he was permitted to remain as a visitor for 14 days, during which he travelled to China to purchase materials for his business, and after he re-entered Hong Kong on 1 August 2006 with permission to stay for a further three days, he did not depart on 4 August 2006 and had since overstayed in Hong Kong.

14.Whilst in Hong Kong he heard that his wife was missing on 18 December 2007 at a train station in Dhaka which was reported on a newspaper, but was later found in a hospital, and that he was later told that she had in fact been kidnapped and raped, for which he believed that the PBCP people were responsible.

15.After the incident his wife moved their home to another rented house in Dhaka where the landlord was an Ahmadi Muslim who persuaded her to convert her religion to Ahmadiyya after hearing what she and their family had gone through, and eventually in 2011 his wife converted to be anAhmadi Muslim, but when her family found out about it, they were opposedto her conversion and kept her locked up in her own home, of which she felt being mentally tortured. 

16.Meanwhile the applicant also learnt from his wife that his mother and his elder brother were killed by the PBCP people on 22 September 2009 when they came to their home looking for him during which his brother quarreled with them and was shot by those men who also shot his mother when she tried to protect his brother.  The shooting incident was also reported in the newspapers, and the applicant believed that the PBCP people were also involved.

17.The applicant therefore advised his wife that she and their sons should also leave Bangladesh for their safety and to join him in Hong Kong, which they did and arrived on 15 January 2013 to reside with him, and that under his wife’s influence he had since also been converted to be an Ahmadi Muslim.

The CAT claim

18.On 2 June 2011 the applicant was arrested by the police for overstaying in Hong Kong, and after he was referred to the Immigration Department for investigation, he raised a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) that he would be harmed or killed by those PBCP people and/or persecuted by the Sunni Muslims for converting his religion to that of the Ahmadi if he were to return to Bangladesh, for which he completed a Torture Claim Form (“TCF”) on 23 July 2013 and attended screening interview before the Immigration Department.

19.By a Notice of Decision dated 24 January 2014 the Director rejected the applicant’s torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) on the basis that his overall credibilitywas not accepted, that even taking his claim of the alleged threats and attacks from PBCP at its highest that they did not amount to torture under the Ordinance, that even assuming that his claimed risk from PBCP were true that it was confined to those areas where PBCP operated and can be avoided in other places in Bangladesh in large cities such as Chittagong or Sylhet where he had previously stayed without incidents, while reliable Country of Origin Information (“COI”) show that violence against Ahmadis had diminished recently in Bangladesh and that he can always resort to state or police protection (“the Director’s CAT Decision”).

20.The applicant then lodged an appeal to the Appeal Board against the Director’s CAT Decision, and on 10 June 2014 the Appeal Board dismissed his appeal without any oral hearing when it was similarly prepared to take his case at the highest and on his own assertion, and assessed on the basis of the materials before it that his pain and suffering at the hands of PBCP or any possible religious discrimination or persecution by Sunni Muslims did not amount to “torture” within the meaning of the statutory definition of the Ordinance, because there was nothing to indicate that they might have been inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.  The Appeal Board therefore rejected his appeal and confirmed the Director’s decision (“the Appeal Board CAT Decision”).

Non-refoulement claim under USM  

21.Meanwhile on 6 March 2014 the applicant also made a non-refoulement claim on the same basis as before under USM, and for which he later completed a Supplementary Claim Form (“SCF”) on 6 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

22.By a Notice of Decision dated 30 November 2015 the Director again rejected the applicant’s non-refoulement claim (“NRC”) on the then applicable grounds other than torture risk, namely risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) 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 33of the 1951 Convention relating to the Status of Refugees (“persecution risk”) (“the Director’s NRC Decision”).

23.In his decision the Director found no substantial grounds for believing that the applicant would be in danger of being harmed by members of PBCP or the Sunni Muslims upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them, that given the passage of time whatever adverse interest that the PBCP people might have against him would have dissipated, while there was no evidence of him everbeen subjected to religious discrimination or persecution in Bangladesh, and that in any event the availability of state protection and internal relocation alternatives would further negate the level of risk to the applicant if refouled to Bangladesh.

24.By a Notice of Further Decision dated 9 March 2017 the Director again rejected the applicant’s 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”).

NRCPO Decision

25.By then the applicant was already in the process of petitioning to NRCPO against the earlier Director’s NRC Decision, the notice/petition of which was filed on 11 December 2015, and for which he attended an oral hearing on 27 September 2016 before a different adjudicator of NRCPO and with legal representation during which he gave evidence and answered questions put to him by the adjudicator, and with submissions made by his counsel on his behalf.  On 19 May 2017 his appeal was dismissed by NRCPO which also confirmed the decisions of the Director (“NRCPO Decision”).

26.In its decision the adjudicator noted that although it was only required to deal with the applicant’s claim under BOR 2, BOR 3 and persecution risks as his torture risk under his CAT claim had already been disposed of by the previous Appeal Board, he nevertheless decided “for the sake of completeness to also address Torture Risk as the Appellant’s allegedfacts apply to all the heads of claim so that this Decision becomes a complete document covering all aspects.”  [1]

27.In doing so the adjudicator referred to Article 1 of CAT comprising what he called “The 4 Legal Elements”, and under Element 1: “Severe pain and suffering”, he found no torture risk in the applicant’s claim when he stated as follows:

“ 10. The only occasion in which the Appellant alleges assault was ‘Incident 4’, but he had not suffered any serious injury, because he was able to fly from Bangladesh to Hong Kong and did not see any doctor until he had arrived here. In Hong Kong he was only given an injection and painkillers, but did not need any major medical or surgical treatment. He has not suffered ‘severe pain and physical or mental suffering reaching the minimum level of severity on the duration of the treatment, its physical or mental effects’: Huri-Laws v Nigeria African Commission of Human and People’ Rights, CAT 225/1998 at §41.

11. Furthermore, assaults do not constitute ‘Torture’ unless inflicted by someone acting in the official capacity of the State: M.P.S. v Australia CAT 138/1999. In assaulting the Appellant, the people of the PBCP were not, nor will they be, acting for or on behalf of the national Government.

12. There is no evidence of physical or mental pain or suffering which satisfies ‘Element 1’. I realize that the lack of ‘Element 1’ in the past does not mean no torture in future, but the evidence does not establish substantial grounds showing a foreseeable and real risk.

13. Accordingly the appeal also fails under ‘Torture Risk’ due to a reason in addition to and independent of that stated in paragraph 9 above.”

28.The adjudicator then went on to find that the applicant’s claim also failed under BOR 2, BOR 3 and persecution risks, and that in any eventhe would be safe to live in Bangladesh at least other than in his home village.

Judicial review

29.On 16 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the NRCPO Decision, and as noted above, with leave granted by this Court on 20 April 2018, his challenge against the NRCPO Decision now before the Court are based on the following three grounds:

(1)   that the adjudicator acted ultra vires and/or was procedurally improper in making a finding in his decision on ‘torture’ when the Petition was only heard on BOR 2, BOR 3 and persecution risks;

(2)   that contrary to the applicant’s legitimate expectation which arose as a result of a previous Appeal Board’s finding with regard to ‘torture’ that conceded that the applicant was ‘at real risk of serious pain or suffering, or indeed death’, the adjudicator subsequently and without giving reasons, substituted his own finding that there was no such risk.  Further and/or in the alternative, in the absence of any demonstrable irrationality, relevant consideration or fresh material justifying such departure, the adjudicator acted in such a manner as to create an inconsistency which was procedurally improper; and

(3)   that the adjudicator acted ultra vires by applying the incorrect legal test for persecution and in substituting his own test for persecution in the assessment of risk.    

30.As the factual matrix giving rise to the first two grounds are the same, with Ground (1) being concerned with the jurisdiction of the adjudicator in making any finding as to ‘torture’, which is essentially a factual issue as to what finding that he had indeed made, while Ground (2) is concerned with the effect of his such findings, specifically as to the assessment of risk which the applicant argues run counter to the findings and assessment of risk by a previously constituted Appeal Board, which essentially leads to the policy on the processing system under USM as to legitimate expectation and/or inconsistency, as well as the applicable principles of res judicata and/or issue estoppel, of which I propose to deal with first before returning to the factual issue under Ground (1).

Ground (2)

31.For this Ground which the applicant argues is concerned with the effect of the adjudicator making findings specifically as to the assessment of risk that run counter to the findings and assessment of risk made by a previously constituted Appeal Board, Ms Lau, who also appeared for the applicant in his appeal/petition to NRCPO and his subsequent leave application for judicial review, submits that whilst closely connected and arising out of the same complaint, Ground (2) can be argued as ‘legitimate expectation’, and further and/or in the alternative ‘inconsistency’.

32.For the scope of legitimate expectation, Ms Lau relies on the leading case of Ng Siu Tung & Ors v Director of Immigration [2002] 1 HKLRD 561, (2002) 5 HKCFAR 1, where the Court of Final Appeal stated a number of propositions governing the doctrine as it should be applied in Hong Kong (§§94 – 98) as follows:

(i)   The law requires that a legitimate expectation arising from a promise or representation, the expectation being that the promise or representation, would be honoured and properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker;

(ii)   Unless there are reasons recognized by law for not giving effect to legitimate expectations, effect should be given to them.  Where the conduct of the public official has given rise to a legitimate expectation, fairness requires that, if effect is not given to the expectation, the decision-maker should express its reasons so that they may be tested by a court in the event that the decision is challenged;

(iii)   Even if the decision involves the making of a political choice by reference to policy considerations, the decision-maker must make the choice in light of the legitimate expectation of the parties;

(iv)   It follows that if the decision-maker does not comply with the third requirement just stated, the decision will be vitiated by reason of failure to take into account of a relevant consideration. The failure to take account of the legitimate expectation constitutes an abuse of power.  Once the court has established such an abuse, it may ask the decision-maker to exercise his discretion by taking the legitimate expectation into account.

33.Ms Lau therefore submits that as the thresholds for torture and BOR 3 are the same save for the requirement for the involvement of a state official for torture, and as it is evident from the reasoning given in the Appeal Board CAT Decision that having undertaken an assessment of risk, that adjudicator found that the applicant had met the thresholds for torture save for the involvement of a public official, it is this finding that constitutes the ‘representation’ giving rise to a legitimate expectation.

34.As these findings were made by a properly constituted Appeal Board whose decision is considered finally determined, Ms Lau submits that the applicant had a legitimate expectation that the findings as to the assessment of risk would continue to stand and that any subsequent NRCPO decisions would adopt such findings, which were to his benefit when faced with the same material facts, and in the absence of any change in circumstances as applied to BOR 3 would prima facie lead to a substantiated claim, and hence his appeal/petition was materially and directlyaffected by the failure of the adjudicator of NRCPO to take the representation into account in that the outcome of his appeal/petition would have been materially different if he had, and for which the adjudicator failed to give any reasons for failing to give effect to the said representation.

35.Ms Lau submits that in the NRCPO Decision, the adjudicator departed from the findings on the assessment risk made in the Appeal Board CAT Decision without giving any reasons, specifically that it was clear he did not arrive at a different findings on the basis that the Appeal Board CATDecision had been irrational, or had been misled, or on the basis of any fresh material that entitled him to depart from the first findings, and accordingly it was an unjustified departure which gave rise to inconsistency.

36.Ms Lau submits that consistency is a principle of good administration, and unjustified departure from previous findings leads to inconsistency, uncertainty and even arbitrariness, as natural justice and relevant cases and authorities indicate that favorable credibility findings should not be rejected in the absence of any fresh evidence, and any departure must be justified.

37.As a result of the adjudicator’s different findings in the NRCPO Decision, Ms Lau submits that there is now an anomalous situation where there are two different findings of fact within one claim, despite the relevant parts of the legal tests for torture and CIDTP being the same as well as the facts giving rise to the claim also being the same, and there being no changesin facts nor circumstances at any time, it is self-evident that as well as beingprocedurally improper, irreconcilable or conflicting judgments are contrary to the principles of natural justice and undesirable in the execution of good administration.

38.Alternatively, Ms Lau argues that this ground can be reviewed for unreasonableness, as the findings in the previous appeal are evidently a relevant matter that ought to have been taken into consideration by the adjudicator, but to the contrary and despite having had those previous findings brought to his attention by counsel for the applicant in both written and oral submissions, he declined to address the matter in the NRCPO Decision which may be challenged as not being Wednesbury reasonable.

39.Further and in the alternative, Ms Lau argues that if it were to be found that NRCPO acted within powers in overriding the findings of the previous Appeal Board, the principles of procedural fairness and natural justice demand that there ought to have been clear reasons given for such departure with adequate notice in advance to the applicant so as to afford him the opportunity to make meaningful representations in response, and the absence of which to the applicant is procedurally unfair.

40.As noted above, Mr Hew for the Director argues that Ground (1) can only be material and found a basis for judicial review or relief if Ground (2) succeeds, but Ground (2) must be rejected as:

(a)   the real issue is what principles relating to re-litigation, whether res judicata or otherwise, operated in the present context;

(b)   in any event there is no basis for any complaints;

(c)   there is also no factual basis for the declarations sought;

(d)   in any event, as all of the Grounds stand, there is no point in granting the application or any of the relief sought given the availability of internal relocation.

41.Mr Hew submits that notions of legitimate expectation/ consistencies cannot be used to circumvent the real issue, namely the approach of NCRPO towards issues of res judicata, and the approach suggested by the applicant in the core complaint of Ground (2) is in fact misguided, as when properly analyzed:

(a)   the complaints fall under the aegis of what principles should be applied within the present system to handle past factual findings, which are governed solely by the approach to be taken in relation to re-litigation/res judicata;

(b)   legitimate expectation has no place in the discussion, as both the “expectation” and its “legitimacy” fall to be determined byreferring to the relevant legal principles by which the tribunals such previous findings of fact.  It cannot and should not be used to circumvent these important matters of policy, which have been analyzed by both the Hong Kong and UK Courts of Appeal;

(c)   there is no basis for the suggestion that previous “favourable findings” can and should enjoy some special status over other types of findings. 

42.The starting point, Mr Hew submits, is to appreciate the policy and intent of the USM, and in line with high standards of fairness, the Court of Appeal has decided that the correct approach to principles of res judicata/re-litigation is to require that each Appeal Board, or in the case of NRCPO, to ensure that it makes a correct assessment on each occasion, entirely unfettered by previous decisions and without reference to prior determinations of non-refoulement claims based on torture risk. 

43.As pointed out by Mr Hew, non-refoulement protection on the basis of BOR 2, BOR 3 and persecution risks became available only upon the commencement of USM in March 2014, as prior to that, non-refoulement protection was extended only on the basis of CAT claim assessments made by the Director or the UNHCR, and the Director and Appeal Board/NRCPOhave therefore put in place a system where USM claims made on the grounds other than torture would be decided without reference to or reliance on any prior decision of the Appeal Board or the UNHCR based solely on torture grounds.

44.Statutorily, torture claims are processed in accordance with the provisions of Part VIIC and Schedule 1A of the Ordinance, in which section 37W entitles a person to claim non-refoulement protection, and section 37X lays down the proceedings by which that claim is made.

45.Once that claim is made, section 37ZI(1) requires that, unless it is withdrawn, an immigration officer must:

“ … decide whether to—

(a) accept the claim as established; or

(b) reject the claim.”

46.The right of appeal to the Appeal Board is set out in section 37ZR which provides:

“ Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

…

(b) section 37ZI(1)(b) (decision rejecting a torture claim); … “

47.As for the practice and procedure of the Appeal Board, section 37ZU states that Schedule 1A “has effect with respect to the Appeal Board and its members and to the proceedings of, and procedural and other matters concerning, the Appeal Board.”

48.In Schedule 1A, particularly relevant is section 18(1) which provides that:

“ In an appeal under section 37ZR, the Appeal Board has the powerto review the merits of the case, and accordingly it may consider—

(a) the same evidence that was before an immigration officer; and

(b) if subsection (2) applies, evidence that was not before the immigration officer.”

49.In order that it can review the merits of the case, the Appeal Board/NRCPO is given the power by section 21 to administer oaths and affirmations and to “receive and consider any material by way of oral evidence (on oath or otherwise) or written statements or documents (by affidavit or otherwise)”, whereas under section 22 the Appeal Board/NRCPOhas the power to direct a person to attend as a witness before it and to answer any questions, on oath or otherwise, or to produce any documents.

50.Under section 23 the Appeal Board/NRCPO may confirm or reverse the decision of the immigration officer but must give its decision with reasons in writing, and that its decision is final.

51.It is therefore clear that the Ordinance has provided for a two tier administrative structure for the processing of torture claims, with the first tier by an immigration officer and the second tier by a member of the Appeal Board/NRCPO who will often be a legally qualified person, invariably a former judge or magistrate.

52.Such approach has indeed been judicially noted and approved:C v Director of Immigration (2013) 16 HKCFAR 280 at §§93 – 98 where it was noted that USM is independent from UNHCR; and in AW v Director of Immigration [2016] 2 HKC 393, the Court of Appeal noted that it was most unlikely that what had transpired in the CAT proceedings could have much relevance to the fresh proceedings relating to BOR 3 risk and persecution risk claims under the USM, as Kwan JA stated at §§63 – 65:

“ 63. … Regardless of what the Director’s stance might have been all along, I am satisfied on the basis of the Director’s stance made known to this court by his counsel’s submissions that this should eliminate any risk that the decisions under CAT might be‘misused’ or that they might influence a decision under the USM on the applicant’s BOR 3 risk and persecution risk claims.

64. The Director’s stance accords with the principle that an assessing officer has a statutory public duty to make a correct assessment on each occasion, and that no estoppel can avail to prevent him doing so. This principle applies in all situations where powers have to be exercised in the public interest (Administrative Law by Wade and Forsyth (11th Ed) at pp 204 to 205). As the Court of Final Appeal has held in C, to exercise his statutory power of removal, the Director must carry out his independent assessment and apply his mind independently to the correctness of the determination by the UNHCR (at §§93 to 98). The Director and the TCAB clearly have a public duty to consider the BOR 3 risk and persecution risk claims under the USM unfettered by whatever findings that might have been made in respect of the CAT claim.

65.   Furthermore, given the circumstances the adjudicator reached his decision in the CAT claim, and in light of subsequent decisions on the need for an oral hearing after the decision of the Court of Appeal in ST v Betty Kwan, it is most unlikely that what had transpired in the CAT proceedings could have much relevance to the fresh proceedings relating to the BOR 3 risk and persecution risk claims under the USM.”  

53.In Re Moshsin Ali [2018] HKCA 549, the Court of Appeal re-affirmed this two-tier process and summarized a number of important features as follows:

“ 44. There are a number of important features of this two tier process:

(1) there is no limitation imposed on the board in carrying out its review function such as by being required to find appellate error before it can reverse the decision being reviewed;

(2) the board is independent of the Immigration Department and can receive new evidence that was not before the immigration officer;

(3) the board is presided over by a person with legal training;

(4) the unrestricted nature of the board’s review function, the power it is given and the processes it employs provide an opportunity for a claimant to raise with the board any defect in the proceedings before the immigration officer and for the board to cure any such defect; and

(5) the board’s decision brings finality to the administrative processing of the claim by the provision of a reasoned decision.”  

54.Mr Hew submits that there are good reasons for this approach being approved and upheld by the Court of Appeal, in that firstly in our non-refoulement system, where administrative decision-making heavily concerns the public interest, the decision-making body has a duty to make each assessment independently, and less weight will be attached to concernsof finality because “res judicata, like other forms of estoppel, is essentially a rule requiring a party to accept some determination of fact or law“: Wade & Forsyth, Administrative Law, 11^thEdition (2014) at pp 204 – 205.

55.Secondly, Mr Hew submits, as a matter of policy and as approved in AW, the requirement must work both ways if it is to ensure that non-refoulement claimants will not be unduly prejudiced by prior “adverse” findings, as otherwise claimants whose prior CAT claim had been refused on the basis that the factual findings established no torture risk would necessarily have such unfavourable findings taken into account in dealing with their USM BOR 2/3 risks and persecution risk claims, and a fortiori if an oral hearing had been held on the first occasion and the claimant was disbelieved as to the crucial aspect of his case.

56.Mr Hew argues that high standards of fairness is therefore satisfied by way of the aforesaid approach where the authority has a duty under USM to consider the applicant’s claim unfettered by whatever findings previously reached, and that this approach where each case is considered as a whole and afresh and without reference to or reliance on any prior decisiondiverges both significantly and clearly in the applicant’s favour from the more traditional approach of pure issue estoppel which can and has been applied in the public law context: see Commissioner of Registration v Registration of Persons Tribunal [2018] HKCFI 2173, or an approach akin to issue estoppel as adopted in certain public law cases in that while there should still be finality in litigation but subject always to the discretion of the Court to depart from them if the wider interests of justice or exceptional circumstancesso require: see R v Home Secretary, ex p Momin Ali [1984] 1 WLR 663, 669; E v SSHD [2004] QB 1044 sub nom, [2004] EWCA Civ 49. 

57.These propositions, Mr Hew submits, are in fact supported by a number of UK cases which set out an approach which is said to be not dissimilar from that in AW v Director of Immigration, starting with the UK Immigration Appeal Tribunal’s decision in Devaseelan v SSHD [2002] UKIAT 00702, where the IAT was concerned with a second application for asylum to a second tribunal, and held that given the principles of fairness, consistency and finality, even in the absence of a rule of res judicata, that:

(a)   first decisions when put before the second tribunal are treated as “not binding” but as something that “may be built upon” such that the outcome “may be quite different from what might have been expected from a reading of the first determination only”; (§37)

(b)   the second tribunal must realize that the issue before him is not the issue before the first tribunal.  Time has passed and the situation may be different.  Appellants may want to ask him to consider arguments or evidence that were not, or could not be, raised before/prevented to the first adjudicator; (§38)

(c)   whilst there are certain guidelines that should be borne in mind,it is for the second tribunal to decide “which of them is or are appropriate in any given case”. (Guideline 8 within §§39 – 42)

58.These guidelines were approved and upheld by the UK Court of Appeal in the similar case of LD (Algeria) v SSHD [2004] EWCA Civ 804, where it was observed that the fundamental obligations are those set out at Devaseelan and Guideline 8 within, and that they are “not the language of res judicata nor estoppel.  And it is not open to be construed as such.” (at §30)  

59.In Ocampo v SSHD [2006] EWCA Civ 1276, where the issue on appeal was whether the AIT erred in law in its consideration of the appellant’s and his daughter’s credibility in their evidence before them in support of his unsuccessful appeal against refusal of asylum, having regard to the acceptance by a special adjudicator of the daughter’s credibility in her similar evidence to him in her earlier successful appeal against refusal of asylum, in dismissing the appeal Lord Justice Auld in giving the judgment of the Court stated:

“ 24. In my view, it is at the very least doubtful whether the principles of res judicata or issue estoppel have any application,certainly in their full rigour, to appeals before immigration tribunals, any more than they do to successive claims for judicial review; see e.g. R v Secretary of State for the Environment, ex p Hackney LBC [1984] 1 WLR 592; and R (Munjaz) Mersey Care NHS Trust & Ors [2003] 3 WLR 1507, CA, per Hale LJ, as she then was, giving the judgment of the Court at paras 78 and 79, while allowing for the possibility in appropriate circumstances of abuse of process as a means of preventing the re-opening of a matter. And the recent approach of the Court of Appeal in E & R v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] INLR 268, was to treat Ladd v Marshall principles as starting points, with a discretion to depart from them in exceptional circumstances; see per Carnwath LJ, givingthe judgment of the Court at para 82. The Devaseelan guidelines, in their application to fact finding by successive immigration tribunals, represent much the same approach, as Judge LJ, as he then was, giving the judgment of the Court in Djebbar, indicated in approving the Devaseelan guidelines:

‘ 28. … The second application is a fresh application, requiring proper consideration on each merits as it may enjoy, approaching the issues contemporaneously. Although it is indeed a ‘fresh’ application, a second or subsequent application is not and is not deemed to be a first application, and it is not properly to be treated as if it were. Re-litigationof issues which have already been resolved is contrary to the public interest, and nothing in the process suggests that the first application should or must automatically be treated as irrelevant to second applications arising in cases like those with which we are presently concerned. If the first application may be relevant, then the extent of its possible relevance and the proper approach to it should be addressed as a matter of principle. That is what the [Devaseelan] guidance purported to provide.’

25. In my view, the Devaseelan guidelines are as relevant tocases like the present where the parties involved are not the same but there is a material overlap of evidence, as the Immigration Appeal Tribunal observed in TK Georgia, at paragraph 21 of their determination. Clearly, the guidance may need adaptation according to the nature of the new evidence, the circumstances in which it was given or not given in the earlier proceeding and its materiality to securing a just outcome in the second appeal alongwith consistency in the maintenance of firm immigration control. It should also be borne in mind, as Hooper LJ pointed out in the course of counsel’s submissions, that admission of new evidence may, as a matter of fairness, operate for, as well as against, a claimant for asylum. In immigration matters, as in other areas of public law affecting individuals, public policy interests of firmness, consistency and due process may have to be tempered with considerations of fairness in particular circumstances.

26. Accordingly, in my view, the AIT rightly rejected any application in the circumstances of this case of the strict principles of res judicata or issue estoppel and, with them, the contention that they could only take account of, and rely upon, the new evidence if the dishonesty of the appellant had not been previously establishable. Equally untenable, in my view, was Mr O’Callaghan’s recourse, in his submissions to this Court to the suggestions: 1) that the AIT, in acting as it did, in some way interfered with the daughter’s status as a refugee acquired as a result of the Adjudicator’s finding in her favour; and/or 2) that that finding was a judgment in rem so as to render by implication his acceptance of her evidence, and effectively that of the appellant in the same proceeding, as conclusive of its effect against all persons including the Secretary of State in the appellant’s appeal. The daughter’s status as a refugee is not affected by any finding in reliance on new and cogent evidence that the appellant lyingly supported her in her successful appeal against refusal of asylum. To the extent that it may reflect on the credibility of her evidence in her appeal and in the appellant’s appeal, it has no effect at all on her status as a refugee. And, as I have said and Mr O’Callaghan has acknowledged, any finding of the Adjudicator in the daughter’s appeal in reliance upon the appellant’s evidence, cannot, as a matter of res judicata or issue estoppel or, under the principles of Ladd v Marshall, be binding against him.

…

29.   In the circumstances, it is my view that, as a matter of common-sense and fairness, the AIT rightly took into account whatMr O’Callaghan has acknowledged to be material inconsistencies in the appellant’s two accounts, the second of which was not before the Adjudicator in his daughter’s appeal and which logically, legally and fairly affects the final outcome of his appeal. Reliance by the Secretary of State on the new evidence is not a collateral attack on her refugee status or otherwise an abuse of process.  It also follows, in my view, that the AIT did not, in the circumstances, need to go as far as they did in the Ladd v Marshalldirection to justify their reception of the ‘new’ compelling evidence.  They had sufficient flexibility of the Devaseelan kind to take the decision it did regardless of that consideration.  Such an approach, as Miss Greaney submitted, has proper regard for thepublic interest, as well as that of individual applicants for asylum,in giving effect to a consistent and fair immigration policy of according, so far as possible, such status only to those who satisfy the criteria for it.” 

60.In AA (Somalia) v SSHD & AH (Iran) v SSHD [2007] EWCA Civ 1040, the UK Court of Appeal upheld the Devaseelan guidelines and affirmed Ocampo in applying them in these two cases before the Court withthe common issue arises in cases where there is overlapping evidence of fact in two separate cases that “In X’s asylum/human rights appeal what weight,if any, should be given to a finding of fact made in Y’s favour which assists Xand which was made by a tribunal when allowing an asylum/human rights appeal in respect of Y?”, where Hooper LJ, who also sat in Ocampo, held that the second tribunal should have regard to the factual conclusions of the first tribunal but must evaluate the evidence and submissions as it would in any other case:

“ 29. … In cases where the parties are different, the second tribunal should have regard to the factual conclusions of the first tribunal but must evaluate the evidence and submissions as it would in any other case.If, having considered the factual conclusions of the first tribunal, the second tribunal rationally reaches different factual conclusions, then it is those conclusionswhich it must apply and not those of the first tribunal. In my view Ocampo and LD do not stand in the way of this simple approach. Both cases make it clear the first decision is not binding and that it is the fundamental obligation of the judge independently to decide the second case on its own individual merits. All that I am doing is simplifying and clarifying the law. Simplification and clarification have the advantages of making it easier for immigration judges for whom the law is already far more complicated than it should be and of making it less likely that there will be appeals on whether the second tribunal was, or was not, bound by the decision of the first. It also has the advantage that the same rule applies whether the previous decision was in favour or against the secretary of State.”

61.Mr Hew submits that these cases demonstrate the fundamentalflaws in the applicant’s arguments which are based on legitimate expectation/ consistency in that the “legitimacy” of any “expectation” created by the first decision must be assessed in accordance with how the relevant system treats issues relating to res judicata/re-litigation, as even if there were an “expectation” created by such prior judgment and/or the declaration of finality, it can only be “legitimate” if enforcing it would not be contrary to the relevant applicable legal principles in that system which govern issues of res judicata/re-litigation, as after all, that is all the applicant can reasonably expect, bearing in mind any relevant considerations of policy and principles.  

62.I agree, and this is in effect what was held in Ng Siu Tung when the Court of Final Appeal stated in §101:

“ In making out a case for relief in accordance with the principles stated above, the applicants must first establish the existence of a legitimate expectation on their part. Though the concept of ‘legitimate expectation’ is somewhat lacking in precision, it is now firmly established that to be legitimate, the expectation must be reasonable (A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at p.636, per Lord Fraser of Tullybelton), that is, reasonablein the light of the official conduct which is said to have given rise to the expectation. Whether an expectation is legitimate in this sense depends, at least in part, upon the conduct of the relevant public authority and what it has committed itself to. Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect. The requirementof legitimacy means that judicial decisions ‘must be founded notonly on what the claimant factually expected, by also on what the claimant, bearing in mind any relevant considerations of policy and principle, was entitled to expect’. (For an illuminating discussion, see Mark Elliott, ‘The Human Rights Act 1998 and the Standard of Substantive Review’ [2001] CLJ 301, especially at p.319). It follows that, to the extent that an expectation of a benefit which cannot legally be accorded, it is not a legitimate expectation. As noted earlier, this question is a critical question in this case.”

63.I also agree that there cannot be any suggestion that high standards of fairness require that only “favourable findings” be taken into account or accorded special status given the approved approach in AW v Director of Immigration when the applicant’s BOR 3 risk and persecution risk claims are to be considered afresh by a different immigration officer from the one who rejected his CAT claim, and in his appeal to the Appeal Board/NRCPO, the appeal is also to be handled by a different Board member or adjudicator other than the one who determined his previous appeal in respect of his CAT claim, that the previous decisions made by the Director andthe adjudicator in relation to the applicant’s CAT claim will not be provided to the new immigration officer or new adjudicator who is to handle the applicant’s BOR 3 risk and persecution risk claims under the USM, and that although the materials previously supplied by the applicant under his CAT claim will be taken into account under the USM, the applicant will also be given an opportunity to provide further information and/or representation if he should see fit to do so.

64.For these reasons I agree with the Director that the applicant’s complaint fails whether analyzed as legitimate expectation or inconsistency,and that in any event I do not see how any expectation, let alone a legitimate one, could have arisen from the NRCPO Decision, as the only clear and unambiguous commitment made by the Government is that his CAT claim would be “finally determined”, and that there is nothing to suggest that all and any future tribunals dealing with his other claims would be bound by the facts of that determination, which thus brings me to the central issue of the applicant’s complaint under Ground (1): what exactly were in fact the findings in the Appeal Board’s decision on the applicant’s CAT claim?

Ground (1)

65.For this complaint the applicant’s argument is that whilst the appeal of his previous torture claim was rejected, the Appeal Board had made the following findings in its decision:

“ 32. Past incidents in involving the Appellant directly did not involve serious physical harm. However, there were two kidnappings and some violence. Serious mental suffering would necessarily be involved. There has been further and lethal violence against family members. On that occasion one of the assailants, according to the Appellant’s newspaper cutting, said that if the Appellant had been there, they would have ‘finished him today’. That amounts to a direct threat against the Appellant’slife. I think it must be taken as a real threat because the assailantscame armed with firearms. It may be that the homicides were notpremeditated, but if the same people were to come looking for theAppellant, armed with firearms, even if they did not set out to killhim at once, there would be a serious risk that that would happen.

33.   I would accept that there is a real risk that if refouled, the Appellant is at risk of serious physical pain or suffering, indeed death which is the most serious of all, from PBCP members.  It is of course true that we are now in 2014, and the first kidnapping took place in 1997.  However, the family killings in 2009 and the threat then uttered suggest that the PBCP have long memoriesand could still come after the Appellant if he were refouled.  It is reasonable to accept that the PBCP would do this for purpose of punishing him for getting away with their secret information, and/or to coerce him and even kill him to ensure his silence.”

66.Ms Lau therefore submits that there was a clear finding that theapplicant had met the thresholds with regard to torture under Article 1 of CAT for (i) severe pain or suffering; (ii) being intentionally inflicted; (iii) for a specific purpose, but that the appeal concerned only a torture claim, and that it only failed under the fourth limb or element to establish involvement or acquiescence of a state official and the appeal was refused accordingly:

“ 50. … while the Appellant may be at risk of severe pain or suffering at the hands of the PBCP if refouled, there is nothing to indicate consent or acquiescence on the part of public officials which might bring that pain or suffering within the statutory definition of ‘torture’.”

67.Ms Lau submits that subsequently under the transitional arrangements which were designed to bring the statutory CAT regime into line with the administrative USM scheme in which the applicant had submitted his SCF, that the threshold for torture and BOR 3 were the same save that under BOR 3 there is no requirement to prove official involvement or consent.

68.Ms Lau submits that while torture or CIDTP is not defined under HKBOR for BOR 3, it was held in Ubamaka Edward Wilson v Secretary for Security [2013] 2 HKC 75 that the two main requirements for invoking protection is that the ill-treatment (physical or mental suffering) that a claimant would be subjected to if expelled attains a ‘minimum level of severity’ and that there is genuine and substantial risk of being subjected to such treatment, which requires the same analysis of the facts as deciding a torture claim that requires the decision-maker to consider whether there are substantial grounds for believing that the torture claimant would be in danger of being subjected to torture if he were to be returned to the country in question, and that it is indeed the habitual practice of the Director when screening on all three available grounds under the USM to consider the level of severity and likelihood of risks across all three grounds in his decision before relying on this overall analysis to consider each ground individually.

69.Ms Lau argues that whilst it was recognized in the present case that meeting the threshold for CIDTP did not necessarily mean a successful claim, as both availability of state protection and the viability of internal relocation have a bearing on the final decision, and the Appeal Board did not rely on either of those grounds to refuse the claim, as it concluded in its decision that:

“ 67. I conclude on the basis of the papers before me that the Appellant, if refouled, is at real and personal risk of severe pain or suffering at the hands of PBCP but that such pain or sufferingwould not amount to ‘torture’ within the meaning of the statutorydefinition shown above, because there is nothing to indicate thatit might be inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.”

70.Ms Lau submits that therefore in the applicant’s non-refoulement claim under USM before the Director that it was specifically argued in his written submission that the Director should not depart from such findings of fact by a previous properly constituted Appeal Board, that a legitimate expectation had arisen whereby the applicant expected that the findings with regard to his risk of harm would continue to stand, that it cannot be the case that the applicant must reconcile himself to being once at risk and no longer at risk based on the same facts and against the same criteria, that it was not possible for the Director to rely on the fact that torture and BOR 3 are separate grounds, distinct and insulated from each other when the reality and net result is that the applicant faces being refouled to a country where a properly constituted appeal board has made a finding that he would be at real risk if so refouled, and that affirming the Director’s NRC Decision notwithstanding the factual findings in the Appeal Board’s Decision would (i) fail to meet the high standards of fairness required, (ii) give rise to inconsistency, procedural unfairness and irrationality; and (iii) contrary to the applicant’s legitimate expectation.

71.Notwithstanding this, Ms Lau argues, and despite having specifically sought to convey the unique circumstances of the case in both written and oral submission made for the applicant in his petition against the Director’s NRC Decision before NRCPO, the adjudicator failed to address these points, and instead sought to deal with the procedural inconsistency by simply “for the sake of completeness” that he proceeded to find, as he did in paragraphs 10 – 12 of his decision as stated above, that there was no evidence of physical or mental pain or suffering that would satisfy the first limb or element of the requirement for torture.

72.Ms Lau therefore submits that since the torture claim of the applicant had been ‘finally determined’ by a properly constituted Appeal Board, as intended by the policy makers that torture claims under the statutory scheme pre-USM be considered “finally determined” which is evidenced from the letter addressed to non-refoulement claimants on 7 February 2014 outlining the transitional arrangements for implementation of the USM, and in which it stated “if the Board eventually confirms the ImmD’s refusal on your torture claim, your torture claim will be treated as finally determined under the Ordinance.  That said, you may still file a petition against the ImmD’s refusal decision regarding your claim in relation to BOR 3 and/or persecution risks at a later time ….”

73.This is also evidenced, Ms Lau argues, that in the guidelines for the completion of the SCF it is stated that the claimant must provide information relating to CIDTP and persecution in addition to the information supplied in the TCF, and that the findings and decision on torture claims remain untouched by subsequent proceedings were affirmed in paragraph 3 of the NRCPO Decision which stated: “the aforesaid refusal decision of yourtorture claim would not be reviewed under the Unified Screening Mechanism(‘USM’). Your claim for non-refoulement protection will therefore be assessed on applicable grounds other than risk of torture ….”

74.Ms Lau submits that the Appeal Board CAT Decision must betreated as finally determined as to the applicant’s torture claim so as to satisfythe requirement for finality in litigation, as it was held in SSHD v TB (Jamaica) [2008] EWCA Civ 977 at [27]:

“ … The principles requiring finality in litigation, and that a party should not be vexed twice, exemplified by Henderson v Henderson (1843) 3 Hare 100 and Johnson v Gore Wood [2002] 2 AC 1, are applicable in public law as in private law. Just as applicants in asylum and immigration cases are required to put forward all the matters on which they rely by the ‘one-stop’warning which they are given, so must the Secretary of State bring forward his entire case when an applicant appeals to the AIT.”

75.Ms Lau therefore submits that as the applicant’s petition only concerned BOR 3 and persecution risks, and there was no appeal of his claim for torture, the adjudicator in the NRCPO Decision had no jurisdiction to make any finding on torture whatsoever, and hence he acted ultra vires, for want of jurisdiction, and with procedural improperly, and that not only was he not entitled to make any findings as to ‘torture’ in the appeal, the findings that he made do not and cannot override the findings on ‘torture’ ofthe previously and properly constituted Appeal Board in its Decision whichhas never been challenged.  This, she submits, thus gives rise to the complaint under Ground (2).

76.It is however clear to me, and as pointed out by Mr Hew for theDirector, when the Appeal Board decided not to hold any oral hearing, it did not intend to take issue with the applicant’s credibility as to his assertions for the purpose of its assessment of his CAT Claim, while keenly aware of possible future BOR 3 claim from the applicant, as it stated in its decision:

“ 4. I note that although the Unified Screening Mechanism is now in force, there is before me no related petition for non-‌refoulement on the ground of risk of torture or cruel, inhuman or degrading treatment or punishment contrary to Article 3 of the Hong Kong Bill of Rights, (section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383) or on the ground of persecution with reference to the non-refoulement principle under Article 33 of the United Nations Convention on Refugees. Whether the Appellant has filed, or will file such a petition I do not know. This is purely and simply a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading treatmentor Punishment (‘CAT’) made under, and appealed under Part VIIC of the Immigration Ordinance, Cap. 115 (‘The Ordinance’).”

77.The Appeal Board then proceeded to give its reason for not holding a hearing:

“ Reasons for Not Holding a Hearing

5. At the outset of consideration of this matter, I decided not to conduct a hearing. I note that in his Grounds of Appeal, the Appellant says that he will ‘tell the reason in person when wemeet’, in particular in connection with his arrest for overstaying. It may be that he expects, or has been led to expect a hearing. I should, therefore, give reasons for this decision.

6. There is no absolute right to an oral hearing in this kind of case. This was considered at length by Au J in ST v Betty Kwan [2012] HCAL 60/2012, [2013] 3 HKC 87. Put simply, whether a hearing is necessary depends on the subject matter and circumstances of the case, and the decision to be made. Provided that the degree of fairness achieved is appropriate it is for the decision maker to decide how to proceed, and whether a hearing is necessary.

7. After reviewing all the documents and the nature of the issues raised, I was satisfied that the appeal could justly be determined without an oral hearing.

8. I was, like the Immigration Officer before me, prepared to take the Appellant’s case at its highest, based on his own assertions, for consideration of the issues. There was no disputeas to fact which required a hearing for its disposition. There wasno issue which required elaboration at an oral hearing, and therewas no dispute as to the law. Nor was it necessary to inquire into the Appellant’s credibility on specific factual issues.

9.   I could not see that anything would be added to the Appellant’s case by conducting an oral hearing.  It would not, therefore, be unfair to him to proceed without a hearing and I so decided.”  

78.It is therefore evidently clear that the Appeal Board did not find it necessary to “inquire into the Appellant’s credibility on specific factual issues”, as it had repeatedly stated that it was “purely and simply” a torture claim for which it was not enough for the applicant to show he had been inflicted with severe pain or suffering, but also the involvement whether personal or otherwise of a public official as defined in the Ordinance, when it stated as follows:

“ 34. The Appellant must show that the serious physical harmwould be inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. Now, the PBCP are not public officials. They are in fact listed as a ‘terrorist group’ in the Country of Origin Information Report on Bangladesh, issued by the UK Home Office on 31 August 2013 and as a ‘terrorist outfit’ in South Asia Terrorism Portal. Those and other documents report clashes, including armed clashes, between PBCP and the police or other official bodies such as the Rapid Action Battalion, and the shooting in such clashes of PBCP terrorists. The Appellant’s own press cuttings support that.

35.   There is obviously no likelihood that the Appellant will suffer serious physical harm by or at the instigation of a public official ….”

79.The Appeal Board then concluded that while the applicant may be at risk of severe pain or suffering at the hands of the PBCP if refouled, there is nothing to indicate any involvement of public official that might bring that pain or suffering within the statutory definition of “torture” and hence his torture claim failed.  

80.It is therefore clear to me that that the Appeal Board, as it so stated in §7 of its decision above, that “after reviewing all the documents and the nature of the issues raised”, it was satisfied that as there was no public official involvement in the applicant’s torture claim, it was therefore not necessary to make any specific finding of fact as to the applicant’s credibilitythat he had been allegedly tortured at the hands of PBCP, which thus explains why it decided not to hold any oral hearing and to just “take the Applicant’s case at its highest based on his own assertions for consideration of the issue”,which was whether there was any official involvement that would bring his torture claim within the statutory definition.

81.As a matter of law, in the context of administrative decisions, there is no absolute right to an oral hearing, and whether it is necessary will depend upon the subject matter and circumstances of the particular case and the nature of the decision to be made, and provided that they achieve the degree of fairness appropriate to the task, it is for the decision-making bodies to decide how they will proceed and for them to decide whether an oral hearing is necessary: ST v Betty Kwan [2014] 4 HKLRD 277.  In the presentcase the Appeal Board decided that an oral hearing was not necessary, whichit was entitled to do, as it was clearly not necessary to probe or make further inquiry in relation to the applicant’s credibility as to his CAT claim on the lack of the state actor element in the applicant’s claim under Article 1 of CAT.

82.I agree with the Director that, as a matter of law and hence relevant to the legitimacy of any “expectation”, such assumed facts by the Appeal Board do not involve any resolution of issues of fact of credibility, as was the case in R v Director of Immigration HCAL 148/2012, 31 May 2013 when L Chan J stated at §31:

“ However, if an adjudicator, having assumed all the facts alleged by the applicant are true, should find that the criteria of CAT are not met and dismissed the petition, then there need not be any hearing as credibility is not in issue. This is so even if the adjudicator should, after having given the reasons for dismissingthe petition, proceed to comment on the credibility of the applicant as in the present case. The comment is not strictly necessary to make the decision complete and the decision should be subject to‘vigorous examination and anxious scrutiny’ without the commentthat was arrived at without the benefit of an oral hearing. This is so even if the applicant in the petition has asked for a hearing as any hearing is to be arranged not on the basis of the applicant’s request but on the adjudicator’s need.”

83.In Rafaqat v William Lam & Anor HCAL 119/2012, 9 May 2014, where the applicant’s CAT claim was dismissed by the adjudicator when the decision did not involve any resolution on factual disputes or issues of credibility and hence no oral hearing was held, Au J (as he then was) stated in §47:

“ Bearing in mind the above principles, in my view, high standards of fairness do not in the present case require the adjudicator to hold an oral hearing to ‘probe’ and make further inquires in relation to the applicant’s torture claim …:

…

(6) … The adjudicator was further then entitled to assess, based on this information, whether the applicant had established at least a prima facie case under the CAT and decide in this second-tier of the screening process whether it was necessary to hold an oral hearing on the basis [of] such information.

(7)  In my view, it cannot be right that in such a situation as the present one, the adjudicator in the second-tier of the screeningprocess was required as a matter of fairness to conduct an oral hearing to ask more questions so as to enable the applicant to establish his CAT claim.  This is so as, firstly, the applicant decided not to do so himself at the first-tier of the screening process, and secondly, the adjudicator was prepared to determine the Petition by taking the applicant’s case to the highest as stated by him and putting aside any credibility issues.  As seen above, the adjudicator’s rulings in the Decision do not involve any resolution on factual disputes or issues of credibility.  The adjudicator therefore did not commit any procedural irregularities in deciding not to hold an oral hearing in determining the Petition.”

84.Mr Hew submits that the position in the present case is a fortiorigiven that under the USM the NRCPO was not barred from, and in the presentcase did indeed, holding an oral hearing if necessary to resolve issues of factand credibility, hence there is no “legitimacy”, let alone any reasonable basisbearing in mind any consideration of policy and principle, for such expectation.

85.For similar reasons, Mr Hew submits, there is no sustainable argument based on inconsistency, a fortiori when the NRCPO, unlike the Appeal Board, had the benefit of an oral hearing to properly assess the evidence for the first time, rather than taking the applicant’s case at the highest, which he argues as particularly relevant given fact-sensitive topics such as serious mental or physical harm and COI information.

86.As noted above in AW v Director of Immigration, the NRCPO had a statutory public duty to make a correct assessment on each of the applicant’s claims under BOR 2/3 and persecution risks under the USM unfettered by whatever findings that might have been made in respect of theCAT claim, and given the circumstances the adjudicator reached the NRCPO Decision after the oral hearing with the benefit of hearing the applicant in evidence and answers to questions raised of his claim, and while it was unfortunate with the way he phrased his decision to address the torture risk of the applicant, in the absence of any suggestion of any factual errors as to such findings of the adjudicator, I agree with the Director that there is no basis or merits in this complaint of the applicant, and hence both Grounds (1) and (2) must therefore fail.

Ground (3)

87.For this ground the applicant complains that NRCPO applied the incorrect legal test for persecution risk and that the adjudicator was wrong to find that:

(i)   agents of persecution are normally state authorities;

(ii)   the requirements for non-refoulement under persecution are “virtually the same as under BOR 3, namely there must be (1) severe ill-treatment if refouled, viz, ‘serious harm …’”.

88.Ms Lau submits that as both Article 1A(2) of the Refugee Convention and paragraph 13 of the Notice to Persons Making a Non-refoulement Claim are silent as to the definition of ‘perpetrators’, it is evident that there is no limitation and a person may be persecuted by either state or non-state authorities.

89.Ms Lau further submits that the ‘minimum level of severity’ threshold has no place in the context of persecution and there is no requirement of severe harm or injury to establish that a person is at risk of being persecuted, and that persecution is most appropriately defined a measure of discrimination that leads to consequences of a substantially prejudicial nature as in Luu The Truong v Chairman of the Refugee Status Review Board & Anor [2003] 2 HKLRD 351, or as defined by Professor Hathaway in The Law of Refugee Status (1991) as “the sustained or systemicfailure of state protection in relation to one of the core entitlements which has been recognised by the international community” and as cited in Horvath v Secretary of State for the Home Department [2001] 1 AC 489.

90.Ms Lau submits that in failing to apply the correct test for persecution, the adjudicator:

(i)   acted for want of jurisdiction as his reasoning was based on an error of law;

(ii)   was procedurally unfair as the applicant was subjected to a higher threshold than prescribed by law and a correct assessment of risk could not be undertaken; and

(iii)   was unreasonable in taking into account an irrelevant factor, namely the erroneous requirement for the applicant to show he had suffered physical harm to establish persecution.

91.With regard to (ii) and (iii), Ms Lau submits that it is evident that the adjudicator applied the same reasons for finding there were no grounds for persecution as for finding there were no grounds for BOR 3, and that the very real consequence of wrongly applying the same reasoning and thresholds to persecution risk as he applied to BOR 3 is that the adjudicator failed to actually and/or properly consider and assess whether the applicant was persecuted for his political opinion or religion, as his assessment of riskfor persecution was resultantly plainly inadequate as a result of applying the incorrect definition and thresholds for persecution.

92.In the NRCPO Decision, this is what the adjudicator found of the applicant’s claim under persecution risk:

“ Persecution Risk

The law

26. Article 33 of the RC says there would be a persecution risk to a person if: (a) owing to well-founded fear of being persecuted on account of one or more of race, religion, nationality,membership of a particular social group or political opinion, the claimant is outside the country of a his nationality and is unable,or owing to such fear, is unwilling to avail himself of the protection of that country: Article 1A(2) of the RC, and (b) his life or freedom would be threatened on account of one of more of the ‘Convention Categories’ i.e. his race, religion, nationality,membership of a particular social group or political opinion, should he be expelled or returned to the frontiers of a Risk State.

27. There is no statutory definition of ‘persecution’, but there must be ‘a minimum level of severity’, serious violation of human rights, or serious or intolerable harm. As to perpetrators,the RC uses the term ‘agents of persecution’ which are normally State authorities. The United Nations uses the term ‘populace’ which means a sizable portion of the population: UNHCR Handbook (1979) Chapter II at §65, HLR v France [1998] 26 EHRR 29, R v SSHD ex parte Bagdanavicius [2005] UKHL 38.

28. Put another way, the requirements for non-refoulement under Persecution are virtually the same as under BOR3, namely there must be: (1) severe ill-treatment if refouled, viz ‘serious harm’, (2) a ‘well-founded fear’ of such harm, namely there must be a real chance of such harm occurring and not merely remote or speculative: CHAN v MIEA 169 CLR 379 at 430, MIEA v Wu Shan Liang 185 CLR 259, and (3) the absence of State protection, but (4) the harm must be under one or more of the ‘Convention Categories’.

Facts of today’s case assessed under Persecution

29. The Appellant has not suffered severe injury or serious harm which would place him within the criteria of persecution. In any event, for reasons stated I find no substantial ground to believe he will face a future risk of serious harm. Furthermore, the COI shows reasonable availability of State protection from such harm. In addition, the 7 alleged assailants do not come within the meaning of ‘populace’ in refugee law. Hence, the situation fall far short of establishing ‘Persecution Risk’.

30.   Further and in any event, he is safe to live in Bangladesh,at least other than in his home village, which is a reason in addition to, and independent of, the reasons in the paragraph above for a claim under ‘Persecution Risk’ to fail.”

93.It appears to me from the above that the applicant has taken the adjudicator’s words out of context when he made references to agents of persecution being normally state authorities or that there must be a minimumlevel of severity for persecution, as it is not disputed by Ms Lau that there is no statutory definition of “persecution”, and it is normally accepted that in order to satisfy the fear test in a non-state agent case, as in the present case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection, as Lord Hope of Craighead said in Horvath v Secretary of State for the Home Department cited by the applicant above and at p 497G:

“ I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word ‘persecution’ implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme.”

94.And at p 499G His Lordship summed up on the issue as follows:   

“ To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status mustshow that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him.But the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy.”

95.Lord Lloyd of Berwick concurred in the same judgment about the meaning of “persecution” at p 503C:

“ For my own part I can find nothing in the immediate context which colours the meaning of the word. As for the wider context, article 33(1) provides:

‘No contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’

This is the converse of article 1A(2). Although it is generally accepted that persecution is not confined to threats to life or freedom, there is nothing in article 33 to suggest that ‘persecution’ in article 1A(2) bears anything other than its ordinary meaning. Nor is there any hint that the failure of state protection is an ingredient in the meaning of the word.

To the same effect is the UNHCR Handbook, paragraph 51:

‘There is no universally accepted definition of ‘persecution’,and various attempts to formulate such a definition have met with little success.  From article 33 of the 1951 Convention,it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership ofa particular social group is always persecution.  Other serious violation of human rights—for the same reasons—would also constitute persecution.’”

96.Whilst the Convention has never applied to Hong Kong, the Court of Final Appeal held in C v Director of Immigration (2013) 16 HKCFAR 280 that in exercising the powers to execute the removal or deportation of a person to a State of putative persecution, on the basis of the practice of the Director of taking into account humanitarian consideration and taking a well-founded fear of persecution as a relevant humanitarian consideration, the Immigration Department has to assess (independently of the UNHCR and giving weight to any of its determination) whether a person has established a well-founded fear of persecution before the removal or deportation of the person to that state of putative persecution.  [56] 

97.As noted above, the adjudicator was correct in pointing out that in order to succeed in a claim under the Convention, the applicant must establish that there is a real chance that he will face persecution for one of the reasons set out in the Convention if he is returned to Bangladesh and that his fear is well-founded.

98.As also noted above, persecution is not defined and what amounts to persecution depends on the circumstances of each case, but it must be demonstrated that there is or can be serious harm through a sustained or systemic violation of fundamental human rights, demonstrative of a failure of state protection, and, again as correctly pointed out by the adjudicator, that the claimant must be unable, or unwilling because of his fear, to avail himself of the protection of his country of nationality: see Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; R v Secretary of State for the Home Department, ex p Sivakumaran [1988] 1 AC 958. 

99.Accordingly, I do not agree that the adjudicator has applied the incorrect legal test for persecution in his assessment of the applicant’s claim, but even if he had, or that if any of the other grounds were made out, the Director argues that there will still be no practical substance or materiality to the application in light of the availability of internal relocation.

Internal relocation

100.The question of internal relocation is a concept common to refugee law and torture claims, and the rationale is simple, as Cheung CJHC(as he then was) held in his judgment for the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, at p 539:

“ 32. … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the internal relocation alternative), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33.   There may be different reasons why the risk of torture is a localised one.  For instance, where the torturer is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned.  Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is nonexistent or insubstantial.  If the risk of torture is for one reason or anothera localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.”

101.As already noted in the NRCPO Decision, it is clear that the adjudicator has found that the applicant is safe to live in Bangladesh, at least other than in his home village, as an additional reason that his claim under BOR 3 risk and persecution risk failed.

102.In arriving at this conclusion, the adjudicator applied the correct test and referred to both the decision of the Director and the relevant COI discussed in §§14 – 16 of the NRCPO Decision, and having put the issue to the applicant at the hearing, he arrived at the following findings as to the availability of reasonable internal relocation in Bangladesh to the applicant as follows:

“ 18. There is no evidence from the COI to show that the PBCP is omnipresent in Bangladesh so that the Appellant will be targeted and/or located whatever he does. I do not accept that the handful of alleged abductors of 19 years ago (back in 1997) are interested in locating him all over Bangladesh, especially when he was safe for at least 3 months when residing in Sylhet even back in 1998 (18 years ago), and that is even if the alleged potential assailants should have huge resources and manpower, as well as are willing, to expend same to search for a needle in a haystack. I find no substantial risk or any substantial basis of fear. There are places in Bangladesh, at least other than the Appellant’s home locality, where he can safely live without undue hardship, which is another reason for today’s petition to fail, independent of what was stated in paragraphs 7 to 13 above.”

103.As there is no suggestion of any error in such findings of the adjudicator, I agree with the Director that NRCPO was right to also reject theapplicant’s BOR 3 and persecution risks claims upon establishing that the risk of harm in such claims was a localized one and that it was not unreasonable or unsafe for the applicant to relocate to other part of Bangladesh, it is inevitable that the adjudicator would, as he did, find no justification to afford him non-refoulement protection in Hong Kong, and hence it is also for this reason that this application must fail.

Conclusion

104.In conclusion, having considered the NRCPO Decision with rigorous examination and anxious scrutiny, and for the reasons given above,I am not satisfied that the applicant has made out any of his grounds for his challenge, and that in any event in view of the availability of reasonable internal relocation to him upon being refouled to Bangladesh, the adjudicatorwas entitled to find on the available evidence and materials that there was nojustification to afford the applicant non-refoulement protection in Hong Kong. In the premises the application for judicial review is therefore dismissed.

105.As costs should follow the event, I also make an order nisi that the applicant shall pay the costs of the Director to be taxed if not agreed, with his own costs to be taxed on Legal Aid Regulations.

106.Lastly, I am grateful to counsel for their most valuable assistance rendered to this Court throughout the proceedings.

Ms Kirsteen J Lau, instructed by Vidler & Co, for the applicant

Attendance of the 1^st respondent was excused

Mr Yang-Wahn Hew, instructed by the Department of Justice, for the 2^nd respondent