Kulwinder Kaur v. Director of Immigration and Another

CACV 486/2018

[2022] HKCA 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 486 OF 2018

(ON APPEAL FROM HCAL 119/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

Introduction

1.On 13 September 2018, DHCJ Josiah Lam (“the judge”) refused the Applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) rejecting her appeal from the Director of Immigration (“the Director”)’s rejection of her non-refoulement protection claim.  The applicant lodged a Notice of Appeal against the decision of the judge on 27 September 2018, but without any proper grounds of appeal, instead attaching a 52 page bundle of documents to the Notice of Appeal.

2.The appeal first came before this court (differently constituted) on 19 March 2019.  Prior to the hearing, on 14 December 2018, the applicant (who was then unrepresented) lodged a Supplementary Notice of Appeal dated 14 December 2018 which contained more recognisable grounds of appeal, in which one of the main complaints against the Board was that it failed to properly assess the risk of harm she would face if returned to India as a result of her work as a former police informant.  She contended that the key facts concerning this risk were placed before both the Board and the judge, but were overlooked by them, and that this aspect of her case should have been taken into account, and should not have been seen as entirely separate from her claim to be at risk due to her having given up Sikhism and adopting Christianity as her religion. 

3.In the judgment below, however, the judge said (at [50] of his judgment) that it was never the applicant’s case before the Director or the Board that the violent incidents which she claimed to have experienced in India had anything to do with her past work as a police informant.  That said, the applicant’s claim to have been a police informant was mentioned twice in the Board’s decision (at [18(c)] and [28]), without adverse comment.  This court (differently constituted) considered it important to ascertain how the applicant’s case had actually been presented before the Director and the Board, and thus adjourned the appeal, gave directions for the Director (the 1^st putative respondent) to file evidence to show what the applicant’s case was before the Director and the Board, and invited the Director and the Board to file written submissions in respect of the appeal if they wished to do so.

4.Following the adjournment, the applicant obtained assistance from the Bar Free Legal Services Scheme and was represented at a hearing on 12 June 2019 when this court (also differently constituted from today) directed the applicant to lodge a draft Amended Notice of Appeal (on a de bene esse basis) and for the formal application to amend the Notice of Appeal to be heard together with the substantive hearing of the appeal.  The appeal was further adjourned on 21 November 2019 to enable the applicant to complete her legal aid appeal, which was eventually allowed on 20 January 2020, resulting in her having the benefit of legal aid to pursue her appeal. 

5.By her draft Amended Notice of Appeal dated 26 June 2019, the applicant raised three grounds of appeal against the judge’s refusal to grant her leave to judicially review the decision of the Board.  At the outset of the substantive hearing of the appeal on 22 April 2020, we granted leave for the Notice of Appeal to be amended in accordance with the draft Amended Notice of Appeal.  Despite Ground 2 not having been raised or argued before the judge, we permitted it to be argued before us. 

Background

6.The applicant, a national of India, was born on 7 July 1983 in Village Rajatal, District Amritsar, Punjab.  She arrived in Hong Kong on 29 July 2015, and was permitted to enter and remain for 14 days as a visitor.  Instead of leaving when she should have, she overstayed, surrendering to the Immigration Department on 24 August 2015.  She subsequently made a non-refoulement protection claim on 28 April 2016, which was processed under the Unified Screening Mechanism.

7.In a written representation signed by the applicant dated 28 April 2016, she stated that she converted from the Sikh religion to Christianity, and as a result was attacked twice by Sikhs, causing her to suffer injuries.  She stated that she did not want to return to India as her life would be in danger there. 

8.In her Non-refoulement Claim Form (“NFC”) dated 8 September 2016, the applicant claimed that she would be harmed or even killed by Sikhs if she were returned to India.  She said that villagers in her village told her to stop preaching Christianity or they would kill her.  She recounted the two violent incidents that she experienced in India, stating that she believed that both incidents were planned attacks on her because she kept preaching Christianity.  She said that she did not feel safe living in India because Christianity was a minority religion in all parts of India.  She said that on her last contact with her brother-in-law in a telephone call around August 2015, he told her that if she wished to follow her religion, she should not stay in India as she might face danger there, and that she did not believe the police would protect her because most Indian police are Hindu, Muslim or Sikh, and would not protect Christians. 

9.It is fair to say that, although she sought to reserve her right to seek protection on other grounds later, her principal and substantial ground for seeking non-refoulement protection was clearly based on her perceived risk of harm due to her religion and preaching of Christianity. The applicant did mention, as part of her work history, that she had worked as an informer to the Special Narcotic Cell in Amritsar, Punjab from around 2008 to 2011, but did not associate this with either of the violent incidents or claim that it would of itself, or in conjunction with her religion, subject her to any risk of harm. 

10.The applicant was first interviewed by an Immigration Officer on 5 October 2016.  The written record of the interview notes that she was represented by an assigned duty lawyer and assisted by an interpreter who spoke Punjabi.  It was explained to her that the purpose of the interview was to clarify issues and test claims considered to be material, and that the interview would be the principal opportunity for her to respond to any requests for clarification of her case and to address points of contention.   

11.At this interview, the applicant elaborated on her grounds for seeking non-refoulement protection stated in the NCF, stating that she had been told to either leave the village or stop preaching Christianity.  She provided details about the two violent incidents, saying that in the first incident in around June 2004, the driver and passengers of the car which followed her, hit her scooter and drove away were international smugglers.  She was certain that this was a planned attack due to her preaching Christianity, as the attackers had threatened her previously and had been following her, although they had not physically attacked her before.   

12.As for the second incident in around December 2012, the applicant said that the attackers had been sent by the same people who arranged the first attack.  Some of the attackers were also said to be international smugglers.  She believed it was another deliberate attack as she had continued to preach Christianity.  The applicant stated that after this, she was again told to stop preaching Christianity, and was warned that whereas she had previously only had minor injuries, in the future, she would be killed.

13.At the end of the first screening interview, the applicant was asked if there were other harms or threats she would face if returned to India, apart from those she had mentioned, but responded “no”.  Her duty lawyer indicated that if she had further information or additional facts to provide, these would be submitted in writing to the Immigration Department and if necessary, a request for a further screening interview would be made. 

14.On 25 October 2016, the applicant submitted additional facts in support of her non-refoulement protection claim.  She said that if she were returned to India, her parents would force her to marry a Sikh man and that if she refused, they would harm or kill her.  In the light of the new material, a second screening interview was held on 8 November 2016.  The applicant was represented by the same duty lawyer and assisted by the same interpreter. At the interview, she confirmed that her parents had not injured her in the past when she requested them to find her a Christian husband instead, but insisted that it was obvious that if she did not follow her parents’ wishes, they would harm her. 

15.Towards the end of the second interview, the applicant was again asked whether there were other types of harm or threats to which she would be exposed, but referred only to the previously mentioned threats aimed at stopping her from preaching Christianity.  She confirmed that she had no other information or document that she wished to be taken into consideration in assessing her case. 

16.By a Notice of Decision dated 14 November 2016, the Director refused the applicant’s non-refoulement protection claim on all four applicable grounds.  It is clear from the Director’s decision that the alleged threats relied upon by the applicant related to the religious issues she had relied on, and to the allegation that her parents would harm her if she did not marry a Sikh, as they wished her to do.  The Director found that her claim for non-refoulement protection was not substantiated, giving detailed reasons for his decision. 

17.On 28 November 2016, the applicant appealed to the Board.  Apart from criticising aspects of the Director’s reasoning and decision, the applicant put forward new information about two incidents in support of her claim.  The first was an incident at a computer centre in Hoshiar Pur, Tanda in 2005 when she claimed to have been raped by the head of that centre.  The second related to her being followed by a car whilst travelling from Amritsar to Sirhali – she believed this to be an attempted kidnap, as she had been threatened with being kidnapped around this time.  She explained her failure to mention these matters earlier.  As to the alleged rape, she said she feared that she would be physically examined by the Immigration Department, and also said that the incident was a painful experience to have to talk about.  As for the attempted kidnap, she said that she did not recall it during her interviews with the Director because her mental health and memory were not good. 

The Board’s decision

18.The applicant’s appeal to the Board was heard on 25 August 2017.  Despite being given the opportunity to do so, the applicant elected not to testify at the hearing, stating that she did not wish to say anything.  The Adjudicator informed her that he had some questions which he wished to ask her, but as she had elected not to testify, she was not obliged to answer them.  He also informed her that he would not put any questions to her or draw any adverse inferences against her in respect of her election not to testify and her unwillingness to answer his questions. 

19.The Adjudicator assessed the applicant’s claim based on the information she had provided for the two screening interviews and her grounds of appeal.  He gave his decision on 9 November 2017.  Having set out the factual and procedural background to the claim, the Adjudicator went on to make adverse findings concerning the applicant’s credibility.  In particular:

(1)     he disbelieved her claim that she would be forced by her parents to marry a Sikh and be harmed or killed by them if she refused to do so, viewing this as a ground made up after the first screening interview to bolster her case (see [21] of the Board’s decision); and

(2)     he found it incredible that she could have forgotten to mention the attempted kidnap until after her non-refoulement protection claim had been rejected by the Director and concluded that this claim was false and had been made up to bolster her appeal (see [22] of the Board’s decision).

20.However, the Adjudicator was prepared to accept her claim that she was raped in 2005 as she might not have appreciated its significance to her claim, and found her explanation that she did not report the claim to the police because she feared this would damage her reputation and future marriage prospects to be a convincing one (see [23] of the Board’s decision).  He was also prepared to accept her main claim that she had been threatened by the Sikhs in her village for preaching her new Christian religion, and that the two violent incidents took place as she described (see [24] of the Board’s decision).

21.Despite accepting parts of her claim, the Adjudicator found that the applicant had not made out a case in respect of any of the four applicable grounds for non-refoulement protection.  Specifically with respect to her BOR 2 rights, the Adjudicator held that when considering the “right to life” this can only refer to risk of capital punishment by the country of return, and found that there was no evidence to suggest that the Indian government would violate the applicant’s right to life if she were refouled to India.  I shall return to this point below, when discussing Ground 2 of the applicant’s grounds of appeal. 

22.The Adjudicator also found the applicant to be an able-bodied woman who had received 12 years of education and had 8 years of working experience in India, and concluded that she could, without undue hardship, relocate elsewhere in India and earn a living (see [28] of the Board’s decision). 

The judge’s decision

23.Dissatisfied with the Board’s decision, on 25 January 2018 the applicant sought leave to apply for judicial review of it. Her grounds for judicial review, which were set out in an exhibit to her affirmation, can be broadly summarised as follows:

(1)     the procedure applied by the Adjudicator failed to meet the necessary high standards of fairness in that he did not give reasons for finding to be false or incredible her case that she would be forced by her parents to marry a Sikh and be harmed or killed by them if she refused to do so, or her case that the attempted kidnap took place.  In assessing her credibility, he failed to consider her vulnerabilities, level of education, background and circumstances, thus demonstrating an unwillingness to understand her situation and failure to correctly interpret the law with respect to her status as a woman in India who is single and of Christian faith;

(2)     the Adjudicator failed to consider the risk of harm arising from her former work as an informant for the Special Narcotic Cell of Amritsar;

(3)     the Adjudicator failed to consider her oral submissions during the appeal hearing, and his demeanour and/or tone were not conducive to her participation in the hearing, and caused her to remain silent; and

(4)     no consideration was given to the fact that her memory was affected by the head injury she suffered in 2004 as a result of the first car attack, which caused her difficulties in recalling events.

24.After rehearsing the background facts, the judge set out the key findings of the Adjudicator (see [23] to [31] of the CALL-1 Form).  In particular, he noted the Adjudicator’s adverse findings on the applicant’s credibility in relation to the allegation that her parents would harm her if she refused to marry a Sikh and the attempted kidnap in November 2014 (at [25] to [26] of the CALL-1 Form).

25.As for the applicant’s head injury, the judge observed that there was no evidence to show that it affected the applicant’s memory or caused her delay in recalling events, nor had she mentioned this to the Director or the Adjudicator.  He further observed that the applicant appeared entirely normal in court and responded quickly and expressed herself clearly (see [47] – [48] of the CALL-1 Form). 

26.As for the complaint that the Adjudicator failed to consider the risk of harm arising from her work as a former informant for the Special Narcotic Cell of Amritsar, the judge held that her claim to have been an informant was a mere assertion on her part.  He pointed out that even though she had mentioned that the persons who attacked her in 2004 and 2012 were international smugglers, it had never been her case before the Director or the Adjudicator that the risks to her had anything to do with her past work as a police informant (see [49] to [50] of the CALL-1 Form).   

27.In respect of the Adjudicator’s conduct and reasoning, the judge reviewed the transcript of the Board hearing, and found that none of the applicant’s allegations against the Adjudicator was substantiated.  On the contrary, he found that the Adjudicator had duly explained the applicant’s rights to her, and had given her every opportunity to state and elaborate on her case (see [52] of the CALL-1 Form). 

28.The judge also held that the Adjudicator had properly engaged in a joint endeavour with the applicant in the screening process, and had achieved the high standard of fairness required.  Having found no substance in any of the applicant’s complaints, he refused her application for leave to apply for judicial review (see [53] to [54] of the CALL-1 Form).

29.The applicant now appeals to this court against the judge’s decision.

General principles

30.The general principles applicable to an appeal against the refusal of leave by a judge in non-refoulement (and indeed other) cases have been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14] per Lam VP (as he then was):

(1)     the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and country of origin information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board;

(2)     an appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before a judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong;

(3)     it follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489;

(4)     in respect of new argument, the Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time;

(5)     further, due to the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition;

(6)     in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

31.Further, the threshold for granting leave to apply for judicial review is that of reasonable arguability, i.e. a claim that enjoys realistic prospects of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at [15] per Li CJ. 

32.In this appeal, the focus therefore is on the judge’s decision, and in particular, whether the applicant has established any grounds for this court to interfere with it. 

This appeal

33.By her Amended Notice of Appeal, the previously formulated grounds of appeal were abandoned, and reformulated into three grounds of appeal, as follows: 

(1)     it is contended that the judge ought to have held that it was reasonably arguable that the Adjudicator had not satisfactorily discharged the duty of joint endeavour, in that (a) the risk to the applicant arising from her status as a police informer cried out for further investigation but was neither enquired into nor considered by the Adjudicator; (b) the Adjudicator rejected new information put forward on appeal relating to the attempted kidnap without enquiring into the applicant’s mental functioning, and the judge erred by conducting his own assessment of the applicant’s mental health and memory, which he was not qualified to do; and (c) there were unexplored questions about the applicant’s mental health and cognition which tainted the internal relocation analysis (“Ground 1”);

(2)     it is contended that the Adjudicator erred in law in holding that the BOR 2 risk can only refer to risk of capital punishment by the country of return (“Ground 2”); and

(3)     it was contended that the Adjudicator wrongly carried out an atomistic analysis of the applicant’s persecution claims, but failed to consider the cumulative risk arising in combination from all of the grounds relied on (“Ground 3”).

34.We consider below each of these grounds of appeal. 

Ground 1: Failure to discharge duty of joint endeavour

35.It is well-settled that the exercise of determining a claim for non-refoulement protection is one of joint endeavour, such that it is not for the claimant, having stated a claim, to simply sit back and require the Director to disprove it: CH v Director of Immigration [2011] 3 HKLRD 101 at [47] per Hartmann JA (as he then was).

36.The burden of proof is on the claimant to prove that there are substantial grounds for believing he would be in danger if returned to his country of origin.  This is, however, subject to the requirement that high standards of fairness must be observed in the process of determining a claim: Secretary for Security v Salthevel Prabakar (2004) 7 HKCFAR 187 at [44]-[45], [51]-[55] per Li CJ. 

37.How the requirement of high standards of fairness might, in practice, modify or otherwise affect the burden of proof as it is generally understood will obviously depend on the circumstances of each individual case.  Where a claimant faces difficulty of proof, the high standards of fairness called for may require the Director to conduct investigations and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case: TK v Jenkins & Anor [2013] 1 HKC 526 at [22] per Cheung CJHC (as he then was).  At [24], his Lordship explained:

“Moreover, … high standards of fairness may, depending on the facts, require the Director or the adjudicator to probe further into an answer or an omission. For instance, where it is readily apparent that something had gone amiss such as the ‘proof documents’ in Prabakar that the applicant there had mentioned but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out. But again everything depends on the facts. There may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.” (Emphasis added)

38.To similar effect are the observations of McWalters J (as he then was) in AM v Director of Immigration & Anor [2014] 1 HKC 416 where he cautioned (at [21] to [22]) that: 

“21. One must be careful not to allow the phrase ‘joint endeavour’ to blur the quite separate roles played by the claimant and the Director. Sight must not be lost of the fundamental fact that the claim is that of the claimant and it is he who has ultimate responsibility for it – a responsibility which remains with him throughout the processing of it. That the burden of proof always remains on the person claiming the protection of Article 3 is apparent from the comments of the Chief Judge in T K v Jenkins & Anor [2013] 1 HKC 526 case at paragraphs 30-31:

‘30. … In deciding whether there are ‘substantial grounds for believing’ that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact … The burden lay with applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).’

22. The Director, on the other hand, has a reactive role. Once he receives the application he will be in a position to assess what further information he will need in order to process it. The Director’s role is not to assist the claimant in establishing his claim – that is the role of the claimant’s lawyer. Rather, the Director’s role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim. When the time comes for the Director and the Adjudicator to make findings of fact in the course of determining the claim or deciding the petition they apply the civil standard of the balance of probabilities.” (Emphasis added)

39.This echoes the views of Cheung CJHC in TK v Jenkins (supra) at [23] when he contrasted the position of the unrepresented torture claimant before the Court of Final Appeal in Prabakar with that of a torture claimant under the enhanced screening mechanism (who enjoys the benefit of legal representation before the Director and the Board to assist him in establishing his case):

“Within reasonable bounds, the torture claimant’s side is expected to conduct his own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

40.Applying these principles to the facts of this case, we are unable to accept that the Adjudicator had failed to discharge the duty of joint endeavour by failing to probe further into the applicant’s former position as a police informant or to consider whether this might pose a risk of harm to her if she were returned to India.  We say this for several reasons.

41.First, it is clear that the basis on which the applicant’s claim was put forward before the Director and the Board was that she feared that she would be harmed due to her conversion to and preaching of Christianity.  Related to this was the additional ground put forward after the first screening interview that she feared harm for disobeying her parents who she believed would force her to marry a Sikh.  Mr Timothy Parker, who appeared for the applicant in this appeal, fairly accepted that this was the clear thrust of the applicant’s case, as she developed it with the assistance of an assigned duty lawyer. 

42.Second, although Mr Parker sought to rely on the fact that the applicant stated in the NCF that she had worked as an informer for the Special Narcotics Cell in Armitsar from around 2008 to 2011, and said in her interviews that she recognised the drivers in the two violent incidents as international smugglers, that is, in our view, insufficient for the applicant, upon whom the onus fell, to properly raise a risk of harm that the Adjudicator would have been required consider.  The authorities indicated that the Director or Adjudicator can be required to probe into matters which have obviously been overlooked or missed out, or which otherwise cry out for investigation.  But the fact is that the applicant did not rely on her former position as a police informant as giving rise to any risk of harm or danger. Instead, the core element of all her grounds related exclusively to her religion, and not to her having been a former police informant.  In these circumstances, we do not think that it can fairly be said to be reasonably arguable that the Adjudicator wrongly failed to probe into that role, particularly when the applicant, who was represented by a lawyer before the Director, never put it forward as a ground for non-refoulement protection.  

43.Third, the applicant was given ample opportunity to raise any other grounds for believing that she was at risk of harm, but consistently confined the grounds on which she relied to her Christianity.  In both the first and second screening interviews, the applicant specifically confirmed that she had no other fear of harm or threats other than what she had articulated in the NCF and through her lawyer.  In those circumstances it is not possible, in our view, to regard the failure to probe into the effect of her role as a police informant as a failure to discharge the duty of joint endeavour on the part of the Adjudicator. 

44.But that is not the end of the matter.  In our view, the characterisation of an Adjudicator’s duty to investigate a claim as one of “joint endeavour” is founded upon the requirement of observing high standards of fairness in determining the claim.  In his oral submissions, Mr Parker argued that this duty encompasses a procedural fairness aspect that requires the Adjudicator to raise issues which may need to be dealt with, and to make it clear to the claimant that this is the position.  At the lowest, the Adjudicator should not, consciously or otherwise, lead an applicant into wrongly embarking on a particular course of action, such as when considering whether or not to give evidence.  In this case, we respectfully think that it is reasonably arguable that the applicant may have suffered procedural unfairness.   

45.As mentioned above, the Adjudicator expressly informed the applicant that given her election not to give evidence or answer any questions, he would not draw any adverse inference against her based on such election.  But in the reasons which he gave, it appears that, while he may not have drawn any positive inferences against the applicant in respect of particular issues, the fact that she did not answer any questions or give any evidence on important matters that weighed on the Adjudicator’s mind did adversely impact upon his assessment of her credibility.  

46.In particular, the Adjudicator referred to the applicant’s answer (to one of the questions posed to her by the Immigration Officer) that her parents had never harmed her in the past when trying to find her a match for marriage as they wanted to handle the situation with love and care.  When asked by the Immigration Officer why she now feared that her parents would harm her if she failed to follow their instructions, she said that it was “obvious” that they would do so.  The Adjudicator found her answer to be “wholly unconvincing and unpersuasive”, apparently because there was, to his mind, an inconsistency in her answers which called for an explanation.   

47.It seems to us that given that the Adjudicator considered that there was an inconsistency in the applicant’s claim, which (absent an explanation) might lead him to form an adverse view of her credibility, fairness required him to have pointed this out to the applicant rather than simply stating that he would not draw any adverse inference against her if she elected not to answer any questions.  While he might not have outright rejected her claim, in the sense of positively disbelieving it, it appears that he took her failure to answer into account by concluding that she had not cleared up his doubts or concerns, so that she could not be taken to have established her claim.  Fairness requires that she be told and understands the consequences of not giving evidence before she can be expected to make an informed decision as to whether or not to answer any questions.  In our view, she should have been warned that a failure to answer questions might lead to an adverse view of her credibility, or might adversely impact on her case if the Adjudicator should be left in doubt as to the position on particular matters, even though he might not positively determine them against her.

48.Mr Parker also drew our attention to the transcript of the hearing before the Board where it appears that the Adjudicator’s statement that “… I can draw no adverse inference from your declining to answer any of my questions” was misinterpreted to the applicant as “And there will not be any adverse effect on your case” (see Bundle C, tab 57 at p. 546).  Whilst the message may have been misleadingly conveyed, ultimately the problem remains that the consequences of not answering questions were not fully (and thus not fairly) conveyed to the applicant.  This seems to us to be a matter impacting on the question of whether the high standards of fairness called for were met in the hearing before the Adjudicator, which was not taken into account of by the judge (although the point was not really put in these terms before him).     

49.In these circumstances, we think it is at least reasonably arguable that if the applicant’s election not to testify could, or would, lead the Adjudicator to conclude that inconsistencies had been left unexplained so that the claim could not be regarded as credible, the Adjudicator ought to have clearly and expressly informed the applicant about the issues that were troubling him, and the implications of these issues for her case, so that she would have a proper appreciation of what the consequences would be of not giving evidence.  As a consequence of the failure to do this, it is reasonably arguable that the applicant suffered procedural unfairness.

50.The Adjudicator also found the applicant’s allegation of the attempted kidnap in November 2014, which was only put forward after her claim was rejected by the Director, to be false because he thought it incredible that the applicant would have forgotten to mention such a serious incident.  Mr Parker complains that no inquiry or investigation was made into the applicant’s mental health despite it having always been her case that she had a history of mental illness and had, moreover, suffered a traumatic head injury in the first car attack.  He submitted that if the Adjudicator was going to draw an adverse inference from her failure to raise this incident earlier, he ought to have inquired into her mental health, and should not have assumed that her memory functioned normally. 

51.We think that this is also an instance where high standards of fairness were arguably not observed.  While we would not go so far as to say that the Adjudicator ought to have called for a medical report merely because the applicant alleged in her grounds of appeal to the Board that her mental health was poor and her memory was not good, it seems to us that, if he was minded to draw an adverse inference against the applicant’s credibility based on her failure to have mentioned the attempted kidnap at an earlier stage of the proceedings, it is reasonably arguable that he ought to have at least informed her of his concerns, and explained the consequences of her refusal to answer questions and deal with them.  Depending on her answers, it might be that the state of her mental health or memory would have to be investigated. But the problem here is that the applicant was not fairly informed of the consequences of her silence, and may thus have mistakenly thought that not answering questions would not adversely affect her case.

52.As far as the suggestion that the unexplored questions about her mental health may have tainted the Adjudicator’s analysis and conclusions on the internal relocation analysis is concerned, this is in our view less arguable, but having regard to the views we have already expressed in respect of Ground 1, we do not think it necessary to come to a definitive view on this point. 

53.For the reasons given above, we are satisfied that Ground 1 (as refined in the discussion above) is reasonably arguable and would grant leave for the applicant to apply for judicial review on the basis of it. 

Ground 2: Error of law as to the scope of BOR 2

54.The applicant’s second ground of appeal is that the Adjudicator erred in law in holding that the BOR 2 risk is only engaged where there is risk of capital punishment by the country of return.   

55.As mentioned above, this was not a ground raised by the applicant (who was then unrepresented) before the judge below. Nonetheless, Mr Parker submitted that the applicant should be permitted to raise this point on appeal because (1) it is a pure question of law, (2) the Director would have full opportunity to address it if leave to take it is granted, (3) if accepted, it vitiates the Board’s decision and (4) the applicant who was unrepresented before the judge could not be expected to have raised it. 

56.Mr Suen Sze Yick (with Ms Karen Ngai), who appeared on behalf of the Director in this appeal, opposed the introduction of this new ground.  However, since this ground raises a pure question of law and the applicant was unrepresented before the judge, we do not think that allowing this ground to be argued would cause any unfairness to the Board or the Director (neither of whom appeared at the hearing before the judge).  We therefore granted leave for this ground to be argued on appeal.   

57.We accept Mr Parker’s submission that the Adjudicator’s statement of the law at [25(D)(a)] of the Board decision is wrong.  Nor did Mr Suen contend otherwise.  The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons: Kilic v Turkey (App No 22492/93, 28 March 2000) at [68]; Gorovenky and Bugara v Ukraine (App Nos 36146/05 and 42418/05, 12 January 2012) at [31] to [34]; Mansour Ahani v Canada (CCPR/C/80/D/1051/2002, 15 June 2004) at [10.7]. 

58.However, this ground cannot be viewed in isolation.  As the Adjudicator rejected the applicant’s case that she was at risk of harm or danger due to her Christian faith or from her parents’ desire for her to marry a Sikh, it is not reasonably arguable that he would have come to a different conclusion on the BOR 2 risk even if he had properly accepted (as he should have) that such risk could be engaged even where the risk was posed by non-State actors and private persons.   

59.There is also some force in Mr Suen’s submission that the issues under the BOR 2 risk are not separable from those under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”) concerning risk of torture or cruel, inhuman or degrading treatment or punishment, such that upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52]. 

60.Indeed, the applicant does not seek to specifically challenge the Adjudicator’s findings on the BOR 3 risk on any basis other than the more general grounds under Ground 1 and Ground 3.  We therefore do not think that Ground 2 is reasonably arguable in the factual context of this case, as the error of law, taken on its own, would not (in our view) vitiate the Board  decision.  We would not therefore grant leave for judicial review on this ground.

Ground 3: Failure to consider grounds cumulatively

61.Finally, with regard to Ground 3, we cannot see how it is arguable in the context of this case.  The Adjudicator rejected the applicant’s case that she was at risk of harm or danger on the basis of the grounds put forward by her.  There was thus no “cumulative risk” to be considered.  It is thus not reasonably arguable that the Adjudicator wrongly carried out only an atomistic analysis of the applicant’s claim, and we would therefore reject Ground 3. 

Disposition and costs

62.For all of the foregoing reasons, we allow the appeal, set aside the judge’s order, and grant leave for the applicant to apply for judicial review against the Board’s decision, limited to the basis of judicial review identified in respect of Ground 1 as refined above.

63.As for costs, Mr Parker sought costs against the Director if the appeal were allowed, on the basis that the Director had actively opposed the appeal.  However, bearing in mind that the applicant has only succeeded on Ground 1, on a reformulated or refined basis only articulated during oral submissions, and that the Director in effect would have succeeded on Ground 1 as originally formulated, and having regard also to the fact that the Director was directed to appear to assist the court, by providing evidence as to the course of the proceedings before the Director and the Board, and by making submissions, we consider that the appropriate outcome would be that there should be no order as to the costs of this appeal as between the applicant and the Director, but that the applicant’s own costs should be the subject of a Legal Aid taxation.

Mr Timothy Parker, instructed by Patricia Ho & Associates, for the applicant

Mr Suen Sze Yick, Senior Government Counsel and Ms Karen Ngai, Government Counsel of the Department of Justice, for the 1^st putative respondent