Alan Edward Van Leuven v. Torture Claims Appeal Board

HCAL 1134/2021

[2021] HKCFI 3578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1134 of 2021

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 6 July 2018 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of USA who first arrived in Hong Kong on 24 December 2002 on a dependent visa based on his then marriage to a Hong Kong resident as extended to 7 May 2011, but his marriage was subsequently dissolved by a divorce in 2008 when he was also arrested by police for possession of weapons without license for which he was subsequently convicted and sentenced to prison for 16 months, and upon his discharge from prison on 18 July 2010 and was referred to the Immigration Department for deportation, he raised a torture claim, and after it was rejected in May 2013, he then sought non-refoulement protection on the basis that if he returned to USA he would be harmed or tortured by the US government and various authorities due to his long absence from the country, his past criminal convictions in Hong Kong, his suspicious activities about money transfers from his mother in the US, and his conversion to Islam, as well as fear of persecution and violence against him as a Muslim by the general community. He was subsequently released on recognizance pending the determination of his claim.

The Applicant’s Claim

2.The Applicant was born and raised in Providence, Rhode Island, USA where his father was a US marine and then a local police officer before running his own security company, while his mother was also a police woman of the local police department before working in the security for a casino.

3.The Applicant received a diploma in fine arts in Boston, and also undertook various fitness and physical trainings as a martial art enthusiast as well as in the use of handguns and firearms.

4.In 1997 while working in Los Angeles as a theatre production technician, the Applicant met his wife who was then a student from Hong Kong, and in June 1998 they were married and lived there for 4 years until June 2002 when his wife returned to Hong Kong, and then applied for him to join her in December 2002 under her dependent visa where he initially found some design works, and was subsequently employed as a vice-president in product and business development of an international company.

5.In 2005 while taking a business trip to the US, the Applicant was at both arrival and departure being subjected to intensive questionings and security checks at the airport which caused him anxiety, distraught and confusion.

6.In August 2008 after separating with his wife and moving to a hostel in Tsimshatsui, the Applicant was arrested by police for possession of prohibited weapons including stun guns, bayonets and knuckledusters without a license in his hostel room, for which he was later convicted in 2010 and sentenced to prison for 16 months, and when a deportation order was issued against him by the Immigration Department, the Applicant raised his torture claim, and after it was rejected, he then sought non-refoulement protection, which was within the knowledge of the US Consulate General in Hong Kong, and that his conviction had also been reported in the local newspapers.

7.Later in the same year of 2008 his wife obtained a divorce dissolving their marriage, and during his imprisonment he became interested in the religion of Islam and eventually became a Muslim, and upon his discharge from prison when he was without employment or income while pending the determination of his non-refoulement claim, his mother in the US regularly transferred to him various sums of money between US$150 - $200 through the MoneyGram transfer service, which amounted to a total sum of US$15,000 over the period between 2011 and 2012.

8.After he had raised his torture claim with the Immigration Department, of which the US Consulate General were aware, at least two such money transfers had been blocked, and when his mother enquired about them with MoneyGram, she was informed that such money transactions had been reported as suspicious activities to the US authorities, and although the money were eventually transferred to him without any further problem, the Applicant was alarmed by such suspicion from the authorities.      

9.By reasons of all these matters, the Applicant feared that he would be subject to further interrogations by the US government and various authorities upon his return to his home country, which would put him at risk of torture and/or cruel, inhuman or degrading treatment or punishment due to his long absence from the US, his suspicious money transfer activities, his various criminal convictions in Hong Kong as well as his conversion into a Muslim, he therefore sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 29 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.While being released on recognizance pending the determination of his claim, the Applicant formed a relationship and cohabited with a Russian girlfriend who herself was said to be also a non-refoulement claimant, and on 20 September 2012 the Applicant was arrested by police for possessing a false instrument and obtaining property by deception for which he was convicted and sentenced to prison for 28 months.

11.Upon his discharge from prison in respect of that conviction on 10 April 2014, the Applicant was transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was later released on recognizance, but on 18 April 2015 he was again arrested by police for possession of dangerous drug, conspiracy to make counterfeit notes and possession of a false instrument for which he was convicted on 2 February 2016, and was sentenced to another prison term on 14 April 2016 for a total term of 33 months.        

12.Eventually by a Notice of Decision dated 24 March 2017 the Director of Immigration (“The Director”) rejected the Applicant’s claim on the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

The Director’s Decision

13.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the US authorities upon his return to USA as low due to the absence of past ill-treatment from them, that the intensive security checks of the Applicant during his arrival and departure of the US airports were just normal routine procedures established by the Homeland Security Department and the Federal Government as a result of the terrorist attacks on 11 September 2001 and were not targeted against the Applicant, while there was also no reliable evidence that he was being suspected by the authorities of being involved in money-laundering activities over his mother’s regular remission of money to him through bank transfer or of any risk of him being implicated of any such illegal activity, or of any risk of him being subjected to any torture or ill-treatment by the authorities over his lengthy absence from the US or of his criminal convictions in Hong Kong for crimes committed in Hong Kong, or any evidence of any risk of persecution or discrimination by the US government or the community at large over his religious conversion into a Muslim  upon his return to the US and that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in the US to protect her citizens from religious discriminations or persecution as well as a legal system to ensure due process and fair trial in the courts to the Applicant as a citizen in the event of any police investigations or legal process which the Applicant may be subjected to under the US laws without any fear of any risk of being subjected to torture or ill-treatment upon his return to the USA that his claim for non-refoulement protection failed on all applicable grounds.

14.On 10 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, but for which he failed to attend the oral hearing scheduled for 13 April 2018 without any explanation, and that the Board proceeded to deal with his appeal in his absence and on paper, and on 6 July 2018 it dismissed his appeal and also confirmed the Director’s decision.

The Board’s Decision

15.In its decision the Board found it unable to evaluate the credibility of the Applicant’s claim as he failed to appear for his oral hearing without explanation or excuse, that on papers his claim is vague and unsubstantiated, that there is nothing in his treatment at the US airport during a business trip in 2005 that could give rise to a fear of being persecuted on account of his long absence from the US, that a delay in two money transfer transactions from a total of 80-90 transactions over several years is not something that could give rise to a fear of being persecuted on account of suspicious activity either, that there was no evidence to suggest that the American authorities or even the US Consulate in Hong Kong are aware of his criminal convictions in Hong Kong or of any laws in the US which target citizens for bringing the country into disrepute abroad or which allow for further prosecution on the basis of convictions overseas, nor was there evidence of the Applicant’s alleged conversion to Islam or of a generalized persecution of Muslims in the US that his alleged conversion does not give rise to a fear of persecution on account of his religion, that his claim that the problems he faced existed prior to his arrival into Hong Kong was further undermined by the fact that he did not seek the protection of the Hong Kong authorities until after the expiry of his visa which damaged the credibility of his claim and hence it attached no credence at all to his claim to have entered Hong Kong in search of international protection, and concluded that his appeal failed on all applicable grounds.

Applicant’s Application for Judicial Review     

16.On 12 August 2021 the Applicant while being held at CIC filed a Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1)  that the Board was wrong to refuse his claim on the grounds that he failed to    appear for his hearing before the Board without explanation or excuse when the fact is that he never received any notice either by mail or phone to appear for his hearing on 13 April 2018 or the Board’s decision issued on 6 July 2018 until much later in July 2021;

(2)  that the Board failed to consider properly or sufficiently all the facts and information documented in the Applicant’s hearing bundle including proofs which were contrary to its reasons for refusing his non-refoulement claim;   

(3)  that the Board failed to consider the fact that “suspicious” activity dealing with money transfers in the US falls under the United States Patriot Act and gives the authorities the right to investigate all persons involved who can be interrogated, phone taped and put under surveillance anywhere in the world whether the US authorities deem appropriate;

(4)  that the Board was wrong in finding that there was no evidence to suggest that the American authorities even the US Consulate in Hong Kong was aware of the Applicant’s convictions notwithstanding the fact that they were notified by the Hong Kong police of his arrest and was in custody and that the US Consulate came to visit him on a monthly basis during the entire time of him being held in the Lai Chi Kok Reception Centre that they were fully aware of his criminal records and his court hearings that it is obvious that the US Law Enforcement and Homeland Security could have access to his convictions;

(5)  that the Board was wrong in finding no evidence of the Applicant’s conversion to Islam when it was clear that from the time of his imprisonment to his release that he had met with more than 3 Imams at the Kowloon Mosque and had attended numerous prayers at the Mosque and that there were numerous newspapers articles produced by the Applicant to show the existence of Islamophobia in the US even up to the presence;

(6)  that the Board reached the decision wrongly in assessing the Applicant’s case and that the decision was not reasonable or fair in that his right to life must be protected from extra-judicial killings which he may face if deported back to his home country;

(7)  that the Board failed to appreciate or give the proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies that eth state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(8)  that the Board failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations have complied reports on the matter which stated testament to his assertions which was a clear case of unfair attitude shown by the Board which is in itself enough to render its decision void; and

(9)  that the Board failed to attain high standard of fairness required by the Wednesbury test in its decision with the arguments put forward that the decision should be considered unreasonable in the scope of public law.  

17.By then the Applicant was clearly also seriously out of time with his application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

18.As the last day of the three-month period for the Applicant to file his Form 86 fell on 6 October 2018, he was therefore almost 3 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] HKC 393.

19.In the Applicant’s case, a delay of almost 3 years must be considered as extremely inordinate, for which he explained in his Form as noted above and also at the hearing of his application that upon his discharge from prison he moved to a new address at Ho Man Tin and of which he did inform the Immigration Department, and hence he never received from the Board the notice of hearing or its decision which were sent to his former address in Wong Tai Sin, but that in August 2018 he was again arrested by police over some drug offence for which he again sent to prison for 2 years, and upon his discharge he was then transferred to CIC where he has been detained up to now, and it was there sometime in July 2021 that he was informed by his immigration officer of the Board’s decision and was subsequently given a copy thereof that he subsequently filed his Form 86.     

20.The record shows that the Board’s decision was sent by post on 6 July 2018 to the Applicant at a residential address at Lok Tin House, Tse Lok Estate, Wong Tai Sin, Kowloon, the same one as stated by the Applicant in Section 1: Personal Information of his Notice of Appeal lodged with the Board on 10 April 2017, but it was also clearly stated by the Applicant in both Section 2 and Section 5 that his Notice of Appeal was “issued from the Correctional Services Dept” where he was then serving a prison term.

21.As noted above [11], the Applicant was on 2 February 2016 convicted of offences relating to possession of illegal drugs and false instrument, and was on 14 April 2016 sentenced to a total prison term of 33 months, and at the time of the Director’s decision of 24 March 2017, it was recorded in paragraph 13 that he was then still serving the prison term at Pak Sha Wan Correctional Institution, as the Applicant also so stated in his Notice of Appeal lodged with the Board.

22.Of course by the time when the Board delivered its decision on 6 July 2018, it is quite likely that the Applicant would have completed his prison term, as he did so confirm later at the hearing of his application, and that apart from his own bare assertions the Applicant has not provided any further or documentary evidence of his alleged subsequent arrest and eventual conviction and imprisonment over another criminal offence shortly after his discharge from prison in 2018, which is perhaps understandable in view of his current detention at CIC, but given the fact that he had been in custody most of the past several years either in various Correctional Institutions or being detained at the CIC, as a result his residential or correspondence address at the time of the Board’s decision may not have been kept up-to-date by the Board, and on the basis of his past very proactive and strenuous pursuit of his claim before the Director, I am prepared to give the Applicant the benefit of the doubt that he might indeed have not received the Board’s decision in the mail for the reasons given until some 3 years later in July 2021.      

23.As for the merits of the intended application, before proceeding to consider the Applicant’s proposed grounds as listed above, it would be relevant to first set out in full the Board’s findings in its consideration of the Applicant’s claim in the decision as follows:

“Consideration of the claim

13. The Appellant failed to appear for his hearing before the Board, without explanation or excuse.

14. The Board is therefore unable to evaluate the credibility of the Appellant’s claim. On the papers, the Appellant’s claim is vague and unsubstantiated. The Board agrees with the Director’s view that the Appellant’s questioning and scanning at the airport in Michigan in 2005 are the ordinary levels of security screening that millions of passengers go through every year and there is nothing in the Appellant’s treatment that could give to a fear of being persecuted on account of long absence from the USA.

15. The Board also agrees with the Director’s view that a delay in two money transfer transactions from a total of 80-90 transactions over several years is not something that could give rise to a fear of being persecuted on account of suspicious activity.

16. The Appellant has a number of convictions in Hong Kong but there is no evidence to suggest that the American authorities, even the US Consulate in Hong Kong, is aware of those convictions. There is no evidence of any laws in the USA which target citizens for bringing the country into disrepute abroad or which allow for further prosecution on the basis of convictions overseas.

17. The Appellant claims to have converted to Islam but there is no evidence of that. On the point of persecution in the USA because of his conversion, there is no evidence of a generalized persecution about Muslims in the USA, notwithstanding a negative public discourse about Muslims since the attacks of 9/11. The Appellant’s alleged conversion does not give rise to a fear of persecution on account of his religion.

18. In coming to that finding the Board also takes into account the delay in the Appellant’s claim for asylum. It is his claim that the problems he faced existed prior to his arrival into Hong Kong but he did not seek the protection of the Hong Kong authorities until after the expiry of his visa. While the delay is not determinative of his claim (per Pill LJ in JT (Cameroon) [2008] EWCA Civ 878; SM (Section 8: Judge’s Process) Iran [2005] UKIAT 00116) the Board finds that it damages the credibility of it: s.37ZD Ordinance. The Board notes that it is well established by law (art.4, Directive 2004/83/EC of 29 April 2004; A B C v Staatssecretaris van Veiligheid en Justitie (2014) EUECJ C-148/13) and guidance (e.g. the UNHCR Handbook)) that a person who claims to protection has a duty to claim asylum at the earliest opportunity and to cooperate with national authorities in establishing the basis of their claim for protection. That, the Appellant manifestly did not do.

19. For these reasons the Board attaches no credence at all to the Appellant’s claim to have entered Hong Kong in search of international protection.”

24.The Board than proceeded to conclude, on the basis of its above findings, that the Applicant had failed to establish his claim and that his appeal accordingly failed on all applicable grounds ([21], [29], [32] and [34] of the Decision].

Applicant’s Grounds of Complaints

25.I now come to consider the Applicant’s listed grounds or complaints which were prepared while in detention without the benefit of legal representation, and with the last three of which appear to me just some broad and vague bare assertions of his without any detail or particular or relevancy to his claim that can simply be rejected as not reasonably arguable for his intended challenge.

26.As for his remaining complaints, they could be broadly summarized as follows:

(1)  That the Board failed to apply procedural fairness or high standards of fairness in finding that the Applicant failed to appear for his hearing without explanation or excuse and thereby unable to evaluate the credibility of his claim;

(2)  That the Board erred in law or misdirected itself in its evaluation of the credibility of the Applicant’s claim; and

(3)  That the Board failed to properly assess and analyse the Applicant’s claim and that its decision was irrational or unreasonable.

Ground (1): Procedural unfairness regarding Applicant’s failure to attend hearing

27.As noted above, the Applicant claimed not to have received the notice of hearing from the Board for the scheduled hearing on 13 April 2018 as he was then either still in detention or that the notice was sent to a former address.

28.While it is clear from Section 12 of Schedule 1A to the Immigration Ordinance that the Board may determine an appeal without a hearing if having regard to the materials before it and the nature of the issues raised the Board is satisfied that the appeal can be determined without a hearing, it seems from the decision ([5] and [14]) that the Board had required the Applicant’s attendance to give evidence at the hearing so as to evaluate the credibility of his claim, of which the Board was of the view as vague and unsubstantiated on the papers, but when the Board found his failure to appear for his hearing was without explanation or excuse, it seems to me that the Board had failed to first ascertain whether the notice sent to his Wong Tai Sin address would have reached him when it was clear from both the Director’s decision and the Applicant’s Notice of Appeal that he had earlier been imprisoned and/or detained at CIC, or whether he might have by then been released and if so what was his address then, and if it did the Board had failed to explain what enquiry it had made and what reasons it had in deciding not to re-schedule another hearing and to deal with the Applicant’s appeal in his absence and on paper. From its decision the Board did not appear to have done either.      

29.It seems therefore to me reasonably arguable that the Board’s decision may have been tainted by procedural fairness or the lack of high standards of fairness in finding that the Applicant failed to appear for his hearing without explanation or excuse thus making it unable to evaluate the credibility of his claim.

Ground (2): Error in law or misdirection in evaluating Applicant’s credibility

30.In its evaluation of the credibility of the Applicant’s claim, the Board found that since it is his claim that the problems he faced existed prior to his arrival into Hong Kong, but he did not seek the protection of the Hong Kong authorities until after the expiry of his visa that such delay damaged the credibility, that he manifestly failed to cooperate with the Hong Kong authorities in establishing the basis of his claim for protection, and that it attached no credence at all to his claim to have entered Hong Kong in search of international protection (see [18] – [19] of the decision).

31.While Section 37ZD(1) of the Ordinance allows the Board, or for that matter an immigration officer, in the consideration of non-refoulement claims to take into account as damaging a claimant’s credibility certain behavior of his including failure to take advantage of a reasonable opportunity to claim non-refouleemnt protection, and that it is also true that the Applicant first arrived in Hong Kong in December 2002 but did not raise his claim until almost 8 years later in August 2010, but even leaving aside the practical effect that claimants who wish to pursue their non-refoulement claims in Hong Kong can only do so after their permitted periods of stay in Hong Kong have expired and that they have become ‘overstayers’ and are at risk of being removed or deported from Hong Kong: see CH & BK v Director of Immigration, CACV 59 & 60 of 2010, 18 April 2011, and in the present case as noted by the Board that the Applicant’s dependent visa had been extended to until 7 May 2011, the fact is that it was never the Applicant’s case presented either before the Director or the Board that the problems he faced existed prior to his arrival in Hong Kong in 2002 as found by the Board, but rather that those problems which he found himself in occurred over different times after his arrival in Hong Kong, such as his security check at the US airport in 2005, his various criminal convictions in Hong Kong, his suspicious money transfers from his mother between 2008 and 2012, and his conversion to Islam in 2014, which had all been so recorded by the Board in [4] of its decision.

32.Furthermore, notwithstanding the very proactive way the Applicant had presented his claim before the Director with such details and amount of documents in support of his case as stated in [8] of the Director’s decision as well as those contained in the Applicant’s hearing bundle for his appeal and available before the Board, the Board somehow found the Applicant to have “manifestly” failed to cooperate with the authority in establishing the basis of his claim for protection in [18] of its decision as noted above and without providing any reason or explanation for its such finding.  

33.As such it seems reasonably arguable that the Board had misunderstood and/or misconstrued the basis of the Applicant’s claim when it stated that his claimed problems or risks already existed prior to his arrival in Hong Kong and accordingly wrongly or unfairly evaluated the credibility of his claim as being damaged by his delay in raising his claim for asylum.     

Ground (3): Failure to properly assess and analyse the Applicant’s claim

34.While it is accepted that the Board did consider and determine each of the Applicant’s alleged problems or risks for his claim ([14] – [17] of decision), it did not appear to have proceeded to assess the credibility of his claim based on the entirety of the available relevant evidence and the accumulative effects of each of those asserted incidents as submitted by the Applicant and correctly recorded in the Director’s decision ([6]), in particularly as to what the Applicant had clearly stated in his Answer to Question 34 in the Director’s Questionnaire dated 15 January 2013 when after setting out in details each of those claimed problems, he went on to state in paragraph 17:

“By reason of the matters stated above, I believe I will be subject to further interrogation by the U.S. authorities upon return to my country of origin, which will put me at risk of torture and/or cruel, inhuman or degrading treatment or punishment on the basis that the reported suspicious activities referred to above and my conviction of possession of firearms or ammunition put me in the high-risk category of individuals such as Richard Belmar and David Hicks. There is now produced and shown to me a copy of an article on Richard Belmar from Wikipedia marked as Exhibit “AVL-5”. There is also now produced and shown to me a copy of an article on David Hicks from Wikipedia marked as Exhibit “AVL-6”.”

35.According to those exhibits, Richard Belmar was a British former postal worker converted to Islam and was detained in the US Guantanamo Bay detention camps without charge after the 9/11 terrorist attacks, while David Hicks was an Australian convicted by the US Guantanamo military commission on charges of providing material support for terrorism and was also detained in Guantanamo Bay detention camp. The Board did not make any reference to any relevancy of either of them to the Applicant’s case, or of any implication of his Exhibit “AVL-3”: the US Patriot Act relating to his claim, or for that matter any other of his supporting documents listed in paragraphs 8.55 and 8.56 of the Director’s decision or any of those in the Director’s List.  

36.Furthermore, in his subsequent SCF dated 29 February 2016 the Applicant also stated in [13] of Annex 1 regarding his claimed risk based on those “problems”:

“I believe all of the matters referred to above, coupled with my long absence from the US soil, will render me a person of interest to the US authorities including the FBI, CIA and local enforcement agents upon and following my deportation to the United States.”

37.It has been well established that credibility assessment must be based on the entirety of the available relevant evidence as submitted by the applicant and gathered by the determining authority by its own means including those information and COI which may be relevant to the applicant’s claim.

38.The UNHCR‘s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, December 2011 (“UNHCR Handbook”) warned that decision-makers should be careful not to reach conclusions on the credibility of each material fact in isolation and instead must take into account of their cumulative effect in assessing the applicant’s claim of well-founded fear of alleged risks, as it stated in paragraph 53:

“ … an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. That will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.”  

39.And then in paragraph 201 it also stated:

“Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded”.”

40.In Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, 25 January 2000, Sedley LJ emphasized on the importance of taking all relevant materials into account in [18]:

“Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and – sometimes – specialized knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it.”

41.In UNHCR’s Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013, it also stated at Section 2.7: Credibility assessment based on entire evidence on p45:

“ … in determining whether to accept or reject a material fact the applicant presents, the decision-maker must take into account all relevant evidence that confirms, supports, refutes, or otherwise bears on the asserted material fact. Decision-makers should be careful not to reach conclusions on the credibility of each material fact in isolation…”

The European Court of Human Rights has held that “[i]n determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu” (emphasis added). This is echoed by the Committee Against Torture, which exercises the power of free assessment of the facts based on “the full set of circumstances” in every case. This can be used in an analogous way for credibility assessments.

42.This approach is also expressed in UK case law as assessing all the evidence ‘in the round’, and as held in SM (Section 8: Judge’s process) Iran [2005] UKAIT 00116, 5 July 2005, at para.10:

“It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence. … Some parts of the evidence may shine with the light of credibility. The fact finder must consider all these points together; and … although some matters may go against and some matters count in favour of credibility it is for the fact finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.”

43.This concept of looking at information ‘in the round’ is reflected in UK national guidance on fact finding and on using COI: UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012, while it also stated that decision-makers should consider the credibility of a claim in the light of all the available evidence relating to the claim: UKBA, Asylum Instructions, Considering the Protection (Asylum) Claim and Assessing Credibility, July 2010.

44.All these mean that the credibility of asserted material facts should be assessed with reference to the entirety of the applicant’s statements, including any additional information given to explain any apparent inconsistencies, vagueness or doubts regarding plausibility, as the UNHCR’s Beyond Proofsupra added at p47:

“In assessing the credibility of an asserted material fact, the decision-maker should take into account any relevant documentary evidence that asserts, confirms, supports, refutes or otherwise bears on the material facts. On the issue of assessing documentary evidence, UK guidance adds that, “in practice, this means that documentation submitted as evidence should not be considered in isolation from other pieces of evidence that go towards establishing the particular material fact to which it is intended to support as well as other elements of the credibility assessment.”

The assessment of the credibility of a presented fact is flawed if, for example, it is carried out solely with reference to an assessment of the applicant’s statements and ignores available reliable documentary evidence that bears on that fact. Similarly, the reliability of the documentary evidence can only be determined in light of all available evidence. As the High Court of Ireland explained:

“[T]he adverse finding of credibility is effectively based on the Tribunal member’s premise as to the level of knowledge to be expected and the apparent lack of that knowledge, while the documents have the potential to establish that specific events did happen and happened to the applicant. It is this which gives rise to the need for the whole of the evidence to be evaluated and the analysis to be explained.”

…

Likewise, the credibility of asserted material facts should be assessed in light of all the available relevant COI, and not just portion of that information. Relevant COI should be neither ignored nor misapplied.

The credibility assessment would be flawed if it were carried out with reference solely to selected portions of the available evidence. It must be made with reference to the full picture.”

45.In the present case, it seems reasonably arguable that the Board had also failed to properly consider the credibility of the Applicant’s claim based on the entirety of the available evidence as submitted by the Applicant including the relevant COI. 

Conclusion

46.In the premises, and for all the reasons given, I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I extend time to the Applicant and grant leave for him to apply for judicial review of the Board’s decision based on the those three grounds referred to above.

47.It follows that in accordance with Order 53 Rule 5 of the Rules of the High Court, the Applicant shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

Dated the 25^th day of November 2021

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1