Re Ab

CACV 89/2019

[2019] HKCA 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 89 OF 2019

(ON APPEAL FROM HCAL 903 OF 2017)

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Before: Hon Barma JA, G Lam and ST Poon JJ

Date of Hearing: 23 July 2019

Date of Judgment: 1 August 2019

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 28 December 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office dated 17 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 26 February 2016 and 20 December 2016 rejecting the applicant’s non‑refoulement claim.

Background

2.The applicant claims to be an ethnic Rohingya born in Myanmar.  He says he was sent by his parents to live in Bangladesh with relatives when he was 6 or 7 in 1974 or 1975 and he grew up there.  He says he attempted to return to Myanmar first in January 1996 but went back to Bangladesh very soon after being attacked, and went to Myanmar again in June 2006 and was again attacked there.  He claimed to have entered Hong Kong on 27 July 2006 with a forged Singaporean passport, which was taken away by the agent who arranged his travel to Hong Kong.  He lodged a refugee claim in Hong Kong in August 2006 with the office of the UNHCR, which was refused in June 2011.  He then raised a torture claim after surrendering to the Immigration Department of Hong Kong in October 2012, and submitted a Torture Claim Form in December 2013 and a Supplementary Claim Form in July 2014.  

3.The applicant’s claim was based on the risks of persecution and harm arising out of his ethnicity.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL‑1 Form.  Essentially he claims that as a Rohingya he would face persecution if he remained in Myanmar.

4.By a Notice of Decision dated 26 February 2016, the director decided against the applicant’s claim.  This decision covered the BOR 3 risk,^[1] the persecution risk,^[2] and the torture risk.^[3]

5.By a Notice of Further Decision dated 20 December 2016, the director also assessed the applicant’s claim based on the BOR 2 risk,^[4] and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board (“Board”).  The applicant was legally represented before the Board, as he was at the interviews by the Immigration Department.  After a hearing on 18 January 2017 and 8 February 2017, the Board dismissed the appeal on 17 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non‑refoulement protection.

7.The Board found the general credibility of the applicant questionable for various reasons including the following, as set out in [54] to [88] of the Board’s Decision and summarised by the judge below in [14] of the CALL‑1 Form:

(1) that there was no record of the applicant’s 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;

(2) 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;

(3) 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;

(4) 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;

(5) 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

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

8.The Board concluded that the applicant failed to establish that he is a native of Myanmar or that he is of Rohingya ethnicity. The Board observed 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.  The Board found that more likely than not, the applicant was a native of Bangladesh.  The Board concluded that his claim failed on all applicable grounds.

The judge’s decision

9.The applicant filed a Form 86 by himself on 16 November 2017, which was amended by his legal representatives with leave on 13 September 2018, putting forth the following grounds for judicial review, as summarised by the judge below in [16] of the CALL‑1 Form:

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

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

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

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

(6) that the Board 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 Board 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 Board failed to consider that the applicant is effectively stateless.

10.In the affirmation in support of the application for leave to apply for judicial review dated 17 November 2017, the applicant simply exhibited the related documents.

11.The judge heard the applicant’s counsel moving the application on 4 October 2018, and gave his decision on 28 December 2018, recorded in the CALL‑1 Form.  After summarizing the facts and background of the case, the judge refused to give leave for judicial review.  The judge gave detailed reasons for refusing leave to apply for judicial review at [21] to [56] of the CALL‑1 Form, dealing with the eight specific grounds respectively.

Grounds of appeal

12.In the Notice of Appeal filed on 22 February 2019 the applicant advanced the following grounds of appeal:

(1) The judge erred in finding that there was no error or procedural unfairness in the Board’s determination of the applicant’s nationality/ethnicity;

(2) The judge failed to engage with the central issue for review arising from grounds 1, 3 and 4, being that the Board went beyond the findings open to him in the assessment of documentary evidence; and/or that his approach to the evaluation of this evidence was procedurally unfair; and

(3) The judge failed to engage with the central issue of the attribution of excessive weight upon the issue of the lack of immigration records regarding the applicant’s entry into Hong Kong.

13.In his affirmation of the same day filed in these appeal proceedings, the applicant gave details about the events concerning his representation and explained that his appeal papers were prepared with the assistance of Justice Centre Hong Kong, a non‑profit organisation.  He did not expand on the grounds in the Notice of Appeal.  The applicant was not granted legal aid for the purpose of the appeal.

14.In his skeleton submissions dated 24 June 2019, the applicant expanded upon the grounds in the Notice of Appeal:

(1) For ground 1 of the Notice of Appeal, he submitted that the Board failed to consider a number of factors (such as those factors concerning his ability to speak Rohingya) and material facts.  These failures were particularized as Grounds 5‑7 of the Amended Form 86 but the judge neglected to deal with them;

(2) For ground 2, he submitted that the Board committed errors in evaluating his identity card and 2 temporary travel documents.  The judge should have held that the Board came to a conclusion that was not open to it and that the Board’s evaluation was procedurally unfair.  Instead, the judge did not deal with this issue adequately; and

(3) For ground 3, he submitted that whether there was a lack of his immigration record was not an important issue.  The Board erred in giving weight to this issue in arriving at the Board’s Decision.  The judge failed to “address the heart of the complaint”.

15.By a letter dated 22 July 2019, the applicant informed the court that he was being assisted by a non‑governmental organisation for the purpose of engaging pro bono counsel from the Bar Free Legal Service Scheme to represent him, and therefore requested an adjournment of the hearing of the appeal to a date no earlier than 21 days later.  Having already considered the papers, however, we were inclined to allow the appeal.  Accordingly, we did not vacate the hearing and heard the appeal on 23 July 2019.  The applicant appeared in person.  We indicated to him that we were minded to allow the appeal and, for that reason, declined an adjournment.

16.We should record that after the hearing of the appeal, a faxed copy of a document called “Supplemental Skeleton Submissions for the Applicant” dated 23 July 2019 was placed before us, in which the applicant had asked the court to consider his request for an adjournment if the court was not minded to grant his appeal.  He also asked the court to consider the grounds of appeal as elaborated in his skeleton submissions if it decided to proceed without an adjournment.

Discussion

17.All of the grounds for seeking judicial review were based on alleged errors made by the Board in evaluating the credibility of the applicant’s claim.  The judge correctly held at [19] of the CALL‑1 Form that the Court does not act as a further avenue of appeal in determining the leave application for judicial review.  The primary focus of the Court is on whether there were errors of law, procedural unfairness or irrationality in the Board’s Decision.

Ground 1

18.Ground 1 of the Notice of Appeal is related to Grounds 5‑7 of the Amended Form 86. 

19.In particular, under Ground 5 of the proposed judicial review, the applicant alleged that the judge failed to consider his complaint about the accuracy of the UNHCR determination of his ability to speak Rohingya.

20.It is clear that, as part of the assessment of the credibility of the applicant, the Board took into account considerations concerning the applicant’s spoken language ability.  The relevant part of the Board’s Decision is as follows:

“ Inconsistencies

……

79. The Claimant says that the discrepancies between what he stated to the UNHCR and what he has stated in this claim under the USM, arise because he is illiterate and had difficulty in communicating with the various interpreters who assisted him during his application for refugee [sic] in Hong Kong.

80. The Claimant’s explanations do not explain such inconsistencies and discrepancies, or any of them, when viewed in the light of his lack of general credibility.

The Claimant’s Language

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.”

21.In this connection, there are three matters among those raised by the applicant which seem to us to have some force.

22.First, the Board took into account the applicant’s inability to communicate effectively in the Rohingya language with the Rohingya interpreters during the UNHCR interviews.  That was the subject of adverse comment by the UNHCR but that was because, on the applicant’s case then as understood by the UNHCR, he said he had lived among the Rohingya population in Myanmar for 8 years between 1998 and 2006 (see [75] of the Board’s Decision).  On that basis it might be thought improbable that the applicant should have difficulties in using the Rohingya language.  In the appeal before the Board, however, the applicant’s case was that after moving to Bangladesh when he was aged six or seven, he had only spent four days in Myanmar in 1996 and again a short time (less than two months) in 2006 before coming to Hong Kong; otherwise he had been living in Bangladesh for most of his life, as the Board appears to have accepted (see [82] and [89] of the Board’s Decision).  On the basis of this case, it seems to us not necessarily inconsistent with his claim of Rohingya ethnicity if he had difficulties in communicating with the Rohingya interpreters.

23.Secondly, before taking account of the inconsistencies in the applicant’s case presented to the UNHCR and his communication problems using the Rohingya language, the Board does not appear to have itself inquired into the applicant’s language abilities, or to have drawn his attention to this aspect and provided an opportunity for him to address the Board’s concerns in this regard or to explain whether and if so why he had difficulties communicating with the Rohingya interpreters at the UNHCR interviews (for example, the applicant submits that there are dialectal variations in the language spoken by the displaced Rohingya populations in Bangladesh).

24.Thirdly, the Board did not appear to have taken into account the fact that the applicant did speak some Rohingya language, and the probability or improbability of this if in fact the applicant was simply a native of Bangladesh with no connection with Rohingya at all.

25.On this aspect, the judge stated in the CALL‑1 Form:

“ 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.”

26.The applicant submits that the judge was mistaken in saying the applicant did not dispute the accuracy of the UNHCR Determination in relation to his language ability.[5]  Leaving this aside, we do not agree with the judge, with respect, that the hearing and decision process was wholly unassailable.  We consider that it is reasonably arguable that it was vitiated by three matters mentioned above.

Ground 2

27.Ground 2 of the Notice of Appeal complains of the judge’s failure to “engage with the central issue” in Grounds 1, 3 and 4 of the Amended Form 86.  The applicant had attacked the Board’s Decision for adopting a circular reasoning in relying on the applicant’s lack of credibility to reject the documentary evidence and in saying that the very act of submitting such documentary evidence damaged the general credibility of the applicant.  The applicant also said that the Board failed to distinguish between a document which was to be given little weight and a document which was found to be a forgery and therefore to have negative evidential impact, and wrongly made in effect a finding of forgery without adequate basis.  The applicant contends that the judge did not deal with these grounds (paragraphs 38, 48 and 49 of his skeleton submissions for this appeal). 

28.In its decision, the Board specifically dealt with three documents.  The first was the Identity Card which the applicant said he was given in 1996: the Board concluded that it was not persuaded that this was an authentic document that could be relied upon to establish the applicant’s identity.[6] As to the second and third documents which were temporary travel documents which the applicant said he had obtained from the Rohingya village chairman in Myanmar in around 2006 and 2012, the Board concluded again that it was not persuaded that they were authentic or reliable documents and that it was unable to attach any weight to the documents in relation to the applicant’s identity.[7]  The Board went on, however, to say that the applicant’s account of how he obtained these documents lacked credibility[8] and further concluded:[9]

“ 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.”

29.As the judge below recorded, it was held in the UK case of Tanveer Ahmed v Secretary of State for the Home Department [2002] UKIAT 439; [2002] Imm AR 318, at [38], that:

“ 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.”

30.The ruling in Tanveer Ahmed has been approved by the English Court of Appeal in Mungo v The Secretary of State (20 February 2003) at [18] and MS (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 271 at [34]. 

31.Where an adjudicator is not satisfied a document is genuine, that does not necessarily cast doubt on the credibility of the applicant who has tendered the document.  As the UK Immigration Appeal Tribunal said in Tanveer Ahmed, it is properto consider “the question of whether, even if the documents were false, the Applicant’s story could be true”.  In its reasoning, it seems to us reasonably arguable the Board had crossed the line of simply finding the documents were unreliable and placing no weight on them, to finding that the very act of submitting those documents undermined the credibility of the applicant.  This would be tantamount to finding that the documents were forgeries to the knowledge of the applicant. There is a distinction between these findings and the former does not in itself justify the latter which is far more serious and is required to be substantiated by commensurably strong and cogent evidence.  It is reasonably arguable that the Board failed to have this distinction in mind or to have considered the different evidential requirements.

32.The judge dealt with this in [21]‑[34] of the CALL‑1 Form (Grounds 1 and 4) and [38]‑[40] (Ground 3).  Essentially the judge considered that the Board took into account all the evidence in the round, including the applicant’s evidence in relation to the provenance of the documents in question and the apparent discrepancies in the documents, and was entitled to give no weight to the documents.  However, the judge also said at [34] of the CALL‑1 Form:

“ … 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.”

33.We agree with the judge that it was not necessary for the Board to make a finding of forgery, if all it did was to find that the documents were unreliable and to place no weight on them.  But as stated above, we consider it arguable that the Board effectively made a finding of forgery.  With respect, the judge did not deal with the point that the Board in fact went further and made an adverse credibility finding based on the very fact that the applicant had submitted those documents.  For the reasons we have explained above, that would be a separate finding which needed to be substantiated but appears to have received no separate consideration by the Board.

Ground 3

34.Ground 3 of this appeal complains of the judge’s failure to “engage with the central issue of the attribution of excessive weight upon the issue of the lack of immigration records”.  At [55] and [56] of its decision, the Board considered that the lack of credible evidence relating to the date and manner of the applicant’s arrival in Hong Kong damaged his general credibility.  In the Amended Form 86, the applicant submitted that his entry into Hong Kong was not a material fact that went to the core of his non‑refoulement claim, and should not be accorded such weight as to fatally undermine the assessment of the applicant’s general credibility.  The judge dealt with this in [37] of the CALL‑1 Form as follows:

“ 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.”

35.In his Notice of Appeal, the applicant stated that he accepted the Board was entitled to “put some weight on this issue”, but that it placed “excessive weight on what is a peripheral or non‑core fact”. This was essentially repeated in [55] of the applicant’s skeleton submissions for this appeal.

36.We do not think this ground of appeal has been made out.  The applicant accepts that the Board was entitled to have regard to the lack of immigration records.  The amount of weight is a matter for the Board.  There is no basis to suggest that the Board had viewed this as “fatal” to or determinative of the applicant’s claim.  We do not find any error in the judge’s decision in relation to this matter.

Conclusion

37.For the above reasons, we consider that there is a reasonably arguable case that the Board’s Decision was vitiated by the alleged errors discussed above.  We shall therefore allow the appeal and substitute an order that leave to apply for judicial review be granted to the applicant in relation to Grounds 1 and 5 in the Amended Form 86 as summarised by the judge below.  The applicant’s costs here and below will be in the cause of the application for judicial review.

The applicant, acting in person

[1]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[2]  This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4]  This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5]  Para 30 of his skeleton submissions for this appeal.

[6]  [65] of the Board’s Decision.

[7]  [71] of the Board’s Decision.

[8]  [72] of the Board’s Decision.

[9]  [73] of the Board’s Decision.