Siradze Samson v. Torture Claims Appeal Board

HCAL 2366/2018

[2022] HKCFI 371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2366 of 2018

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:

Leave to apply for judicial review granted.

Observations for the Applicant:

Introduction

1.The Applicant is a 46-year-old national of Georgia who arrived in Hong Kong on 3 September 2006 as a visitor with permission to remain extended to 30 September 2006 when he did not depart and instead overstayed, and on 6 January 2009 he surrendered to the Immigration Department and raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Georgia he would be harmed or killed by the authorities for dodging the compulsory military services and for his years of political activities and involvements against the government. He was subsequently released on recognizance pending the determination of his claim.

Background of Applicant

2.The Applicant was born and raised in the small town of Ambrolauri, the District of Racha-Lechkhumi of the Republic of Georgia of the former Soviet Union now just known as Georgia, where his parents were both highly educated professionals with his father a political economist and his mother a college teacher and later a financial inspector of the local government, while he himself also studied Architecture in the Georgian Technical University in Tbilisi after finishing secondary school.

3.While as a student the Applicant became interested in politics which supported and promoted freedom, democracy and human rights, and was opposed to any military activities, and hence after the collapse of the Soviet Union in 1991 and the resultant instability in Georgia with secessionist wars in the Abkhazia and South Ossetia regions, and in 1993 when he reached the age of 18 and was required to perform the compulsory army service, the Applicant refused to do so and was arrested by police in late 1994 and was detained for two weeks during which he was beaten though not severely, and was eventually released on condition that he reported to the military commissioner.    

4.The Applicant then submitted a medical certificate stating that he was suffering from Hepatitis A and applied for exemption from military service on medical grounds, but later in April 1995 when he was informed by the commission to undergo further tests at the military compound in Kutaisi, the Applicant feared that he would be arrested and so he fled from his home town to move around cities to avoid arrest by the military police.

5.The Applicant however continued to be actively involved in political activities against the government of then President Eduard Shevardnadze, and on one occasion in September 1995 when he attended a political activity in Ambrolauri during which he raised sharp questions to senior government officials, and for which he was arrested by the police for inciting disorderly conduct amongst the crowd and was detained for two weeks during which he was repeatedly beaten and had on one occasion lost consciousness, but managed to eventually make his escape from the police station with the help of a friend and fled to Tbilisi where he kept a low profile.

6.While in Tbilisi the Applicant continued to engage in political activities in opposition to the then Georgian government including searching for evidence to expose the financial corruptions amongst high officials and organizing protests for various opposition groups, and as a result had been arrested by police on several occasions during which he was again detained and beaten, and in order to hide from detection or surveillance by the authorities, he was unable to take up employment or studies which would otherwise require formal registration, and had to rely on financial support from his family.

7.In April 2000 he was again arrested by police in Tbilisi, but on this occasion he was transferred to Ambroulari police station where he was detained for some seven months despite amnesty having been declared by the government for those avoiding military service, for which the Applicant suspected that he was detained due to his political activities, and during which he was beaten almost daily with wooden sticks and icy towels while being hung from the ceiling. Eventually he was released in November 2000 without charge.

8.In 2001 he joined the Georgian Labour Party (“GLP”) as the opposition party against the government to seek genuine democracy in Georgia, which brought about wide spread protests and led to what was known as the Rose Revolution in 2003 culminated in the outing of President Shevardnadze and marked the end of the Soviet era of leadership in the country.

9.In the summer of 2004, the Applicant passed some incriminating evidence about government corruption to a journalist friend who worked for the leading newspaper in Tbilisi in the hope that they would be published and exposed the corruption, but instead they were suppressed by the newspaper, and soon several policemen arrived to arrest the Applicant, but while he was being driven to the police station, he managed to jump out of the police car to escape from the police and went into hiding.

10.To avoid arrest the Applicant obtained a visa for Russia and left Georgia for that country where he stayed for 3 months before moving on to Belarus, and then to Poland, but when he tried to cross over to Germany, he was turned back by the border guards and returned to Poland where he was subsequently kept in a detention camp for 4 months, during which he applied for refugee status from UNHCR, and after it was rejected, he was put on a plane for Georgia, but during a stopover at the London airport, he sought asylum there and was put in a detention camp in Glasgow, Scotland.  

11.After 2 months he was then told that his application would not be processed, and was then put on a plane to return to Poland, and from there he was repatriated back to Georgia in August 2005, whereupon he returned to Tbilisi and reacquainted with his former political colleagues, and one day on 16 January 2006 after visiting a member of the Georgian Republican Party, he was intercepted by officials from the Ministry of Internal Affairs (“MIA”) and was taken to some derelict building in a rundown area of the city where he was warned to stop engaging in political activities before being knocked unconscious.

12.Upon regaining consciousness, he found his head bleeding but those MIA men had already left, and so he made his way home with the help of a friend, and afterwards he recounted his story to a newspaper of a human rights organization.

13.One night in February 2006 while he was on his way to visit his sister, he found himself being followed by two men, and when he started to run, those men fired several gun shots at him but missed, and he managed to make his escape without being harmed, but he suspected that those men were from MIA.

14.After those incidents, the Applicant started to fear for his life, and so he again departed Georgia for Azerbaijan, and then to Kazakhstan where he stayed for 7 months before moving on to China, and on 3 September 2006 he travelled to Hong Kong as a visitor with permission to remain up to 16 September 2006 when he took a trip to Shenzhen before returning to Hong Kong for another stay up to 30 September 2006 when he did not depart and instead overstayed in Hong Kong, during which he made an application to UNHCR for asylum but was subsequently rejected.          

15.On 6 January 2009 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, and shortly thereafter he received a telephone call from an unidentified man whom he suspected was a high-ranking government official of Georgia who warned him not to return to Georgia and that he should renounce his Georgian citizenship so that his family back home could live in peace.

16.As the Applicant felt obliged to take this step to protect his family in Georgia, he therefore executed a power of attorney on 29 April 2009 in Hong Kong for one of his cousins in Georgia to apply for him to renounce his Georgian citizenship which was subsequently granted by the Georgian government on 10 August 2010, and hence he has since become a stateless person.  

17.The Applicant then instructed a solicitor firm in Hong Kong to make an application to the Immigration Department under the Convention Relating to the Status of Stateless Persons 1964, insisting that this application should first be dealt with by the Immigration Department before starting the screening process of his non-refoulement claim, and for the next 4 years his lawyers were embroiled in numerous correspondences with the Clearing Section of the Immigration Department over this application for the Applicant but which eventually led to no solution and appeared to have since been abandoned or not pursued by the Applicant.

Non-refoulement Claim

18.Having earlier completed a Torture Claim Form (“TCF”) on 22 November 2013 and a Supplementary Claim Form (“SCF”) on 6 June 2014 for his non-refoulement claim with legal representation from the Duty Lawyer Service (“DLS”), and after several postponements for alleged health reasons and the necessity or competency of interpretation by the Georgian interpreter, the Applicant eventually attended 3 screening interviews on 8 September 2015, 18 February 2016 and 8 June 2016 before the Immigration Department without legal representation, and for the 1^st interview he sought to postpone it pending his legal challenge of the Director’s decision on his application regarding his stateless status, while for the 2^nd and 3^rd interviews he elected not to use the Georgian interpreter for the process as he was not satisfied with her interpretation and did not trust her either, and therefore proceeded with his screening interviews in English.  

Decision of Director     

19.By a Notice of Decision dated 16 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of 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”).

20.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found:

(a)   no substantial grounds for believing that he would be in danger of being harmed or killed by the Georgian authorities upon his return to his home country in the absence of any reliable evidence in support of his bare assertions of various threats or arrest or tortures by the Georgian police or authorities;

(b)   that there is no evidence of any adverse interest of the Georgian government or authorities in him given the fact that he had been in and out of the country without problem;

(c)   that if indeed he is wanted by the authorities for his evasion of his country mandatory military service or other criminal offences that he would be a fugitive of the law of his own country instead of an asylum refugee and would not be entitled to non-refoulement protection;

(d)   that there is no reliable evidence that there was indeed a telephone call from an identified person that caused him to renounce his Georgian citizenship or that the person was from the Georgian government or authorities other than the Applicant’s own speculation and suspicions;

(e)   that in any event his Georgian citizenship can be easily restored under the present law in Georgia as the same happened to the current Prime Minister of Georgia;

(f)   that the credibility of his claim of various accounts of events occurred in Georgia is doubtful given the lack of details from him despite being invited to provide the same during his screening interviews;

(g)   that his credibility is further undermined by his failure to raise his claim at the earliest opportunities upon his arrival in Hong Kong;

(h)   that even if he had indeed been arrested threatened and beaten by the police or MIA during those incidents as claimed that in the absence of any details that those treatments were not found to have reached the minimum severity under any of the proscribed forms of harm;

(i)   that many of the documents produced and relied on by the Applicant against the abuses of powers and corruptions prevalent of the then Georgian government and authorities have since been displaced by the more current and objective Country of Origin Information (COI”) which show that there have since been significant political changes in Georgia started by what was then known as the Rose Revolution in 2003 which brought about widespread protests and led to the ousting of President Shevardnadze and the end of the Soviet era of influences in the country;

(j)   that Georgia has since pursued a pro-Western policy which brought along a series of reforms including constitutional by switching to a parliamentary democracy in 2012 won by a political coalition party known as the Georgian Dream which won again in 2016 with radical reforms to the law enforcement including the MIA to stop abuses of power and corruptions and with more transparency in the law and judiciary systems;

(k)   that human rights are also guaranteed by the country’s constitution and law with an independent human rights public defender elected by the Parliament to ensure such rights be enforced that the country has since been internationally recognized as a unique success of the world in fighting corruptions and promoting freedom and human rights;  and

(l)   that those claimed fears of the Applicant even if true would have all been negated and dissipated by now that it is not accepted that he will face any real risk of harm under any of the proscribed forms if refouled to his home country Georgia.

Appeal Board’s Decision     

21.On 30 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 3 oral hearings on 12 January 2018, 13 March 2018 and 29 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

22.In its decision the Board found:

(a)   in his own concession that the Applicant is no longer at risk of ill-treatment due to his failure to perform compulsory military service in his home country, and that his only claimed fear is of being harmed or killed by the Georgian government and authorities for his political opinion and past activities to expose the crimes and wrongdoings of government officials who would do anything to avoid being exposed;

(b)   that his evidence in relation to his such political opinion and claimed political activities extremely vaguely described and generalized in nature, and that his claimed involvement in GLP would not have given him any particular prominence in the party to attract any adverse interest from the authorities that it was not persuaded that he was anything more than an ordinary member that would cause him to be specifically targeted by the police or MIA;

(c)   that his evidence relating to his arrest at the political rally in Ambrolauri or his escape from the police station or from the police car or of his claimed ill-treatment during 7 months of detention were also extremely vague and lack of details and inherently implausible that it was unable to attach any weight to his such bare assertions which were further undermined by his behavior designed in delaying and uncooperative in his process before the Director and the Board;

(d)   that some of his produced articles or documentary evidence were self-serving and did not advance his case any further;

(e)   that it was persuaded by his claim of just renouncing his Georgian citizenship after receiving a telephone call from an unknown man which it attached no weight to such evidence and that in any event can be restored under the laws in Georgia which would not advance the Applicant’s case; and

(f)   that it concluded of no basis to suggest that he was ever targeted for harm or ill-treatment by the government or authorities of Georgia or that he will face any real risk of any harm of any sort if refouled to Georgia that his claim for non-refoulement protection failed on all applicable grounds.

Application for Judicial Review       

23.On 26 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision in which he just stated that it ignored and dismissed his evidence without providing any details or particulars or elaborations as to how it did so, but from his subsequent various written submissions, his grounds for his intended challenge can be summarized as follows:

(1) that the independence or impartiality of the interpreter used for his appeal hearing before the Board is questionable which has compromised the evidence of the Applicant thereby rendering the decision rejecting his claim and/or dismissing his appeal unsafe and unsound; and

(2) that the Adjudicator’s credibility assessment of the Applicant’s claim is procedurally unfair and/or irrational.  

Ground 1: Questionable Independence or Impartiality of Interpreter

24.For the complaint about the independence or impartiality of the interpreter or interpretation for his appeal before the Board, the Applicant alleged in his written submissions that the interpreter involved in his screening interviews before the Immigration Department as well as his appeal before the Board was the wife of the former Chief of the Analysis and Coordination Division of the Ministry of Interior in Georgia and hence he was unable to trust her, but that he could not replace her with another interpreter as he was told that she was the only Georgian interpreter available in Hong Kong, he was therefore afraid to disclose the full extent of his claim in the screening processes of his non-refoulement claim that he submits that the Board’s decision and its underlying process were unsafe and unsound.

25.As noted above [18], the Applicant first raised his objection over the use of the interpreter during his screening interviews before the Immigration Department but not for the reasons now stated in his submissions. According to the Director’s decision, the Applicant came to the 1^st interview on 8 September 2015 seeking to postpone it as his then lawyer from DLS was unable to contact him for the interview after he got sick and was therefore unable to appear for him on that day, that he wanted to submit additional documents for his claim, and that he was in the course of applying for judicial review to challenge the Immigration Department’s decision regarding his stateless status and hence his non-refoulement claim should not proceed until his judicial review application had been disposed of first. He then left the interview (see [25] of Director’s decision).

26.As for his 2^nd and 3^rd screening interviews, it would be relevant to first refer to what the Director had recorded in his decision as follows:

“30. On 18 February 2016, you attended the screening interview. During the interview, you revealed you would like to process the claim by yourself and insisted not to have the interpretation service. You were not satisfied about the description of your “Nationality(ies) or country of habitual residence” being described as “Georgian” in the interview note of 8 September 2015. As the interpreter did not translate the aforesaid column to you in the process of reading back, you did not trust the interpreter anymore. You insisted that you understand English and did not want to have the interpretation service. You wrote down “I’m not Georgian national citizen and resident” in the Interview Note dated 18 February 2016. During the interview, you mentioned that you were very tired because you could not sleep well the night before the interview. If you did not take the pill to sleep, you could not sleep. If you took the pill, you could not wake up and come to attend the interview on time. Therefore, you requested to defer the next interview to the afternoon on the next occasion. You have produced some documents to show your health condition (the documents submitted are mentioned in Part (III) below).

   31. Your request to arrange the next interview in the afternoon instead of in the morning was acceded to. You attended the interview on 8 June 2016. You revealed that you were not fit to be interviewed because you did not sleep well the night before. You submitted a letter saying that you have no more information to provide and you would like to end the interview. You also required us to make a decision on your non-refoulement claim as soon as possible. You said that you had been stuck in Hong Kong for the last ten years due to which you have been suffering tremendously both mentally and physically. You also submitted some documents related to your health condition. These documents are to show that you were unfit [the documents submitted have been mentioned in part (III) below].”   

27.To complete the picture, those documents submitted by the Applicant regarding his health conditions as listed in Part (III) of the Director’s decision are medical reports/ certificates stating that the Applicant was found to be suffering from insomnia, panic attacks, depressive episodes and other psychosomatic symptoms but with no physical symptom or environmental factors affecting his sleep other than anxiety caused by the process then regarding his non-refoulement claim, which is in my view to be expected as a normal state of mind of any genuine asylum seeker going through such process.

28.Which thus bring me to the Applicant’s complaint. Firstly, while the Applicant has named names regarding the interpreter used in his processes and her husband, there is simply no evidence that that the interpreter was indeed the person whom the Applicant now claims to be.

29.More importantly, even if she were indeed the person whom the Applicant claimed to be, it is clear from both the decision of the Director and the Board that the Applicant never needed or used the interpreter in either of his screening interviews before the Director or his appeal hearing before the Board as noted above, and as evidenced first in the Director’s decision at §30 as follows:

   “On 18 February 2016, you attended the screening interview. During the interview, you revealed that you would like to process the claim by yourself and insisted not to have the interpretation service. You were not satisfied about the description of your “Nationality(ies) or country of habitual residence” being described as “Georgian” in the interview note of 8 September 2015. As the interpreter did not translate the aforesaid column to you in the process of reading back, you did not trust the interpreter anymore. You insisted that you understand English and did not want to have the interpretation service …”

30.The Applicant then proceeded with his screening interviews and his claim in English without the use of any interpreter, and when he appeared in his appeal hearings before the Board, he also did not require the service of any interpreter, as revealed in the transcript of the first hearing on 12 January 2018 and exhibited to his Supplementary Submissions as follows:

   “Appellant: Another issue – translation. Did not want to use same translator as believes he is missing out on important information. Wants to know why he still has same translator and wants to know who is responsible.

   Judge: Important that you know the language of the proceedings and to have an interpreter. Not every language or dialect has many interpreters. It appears for the Georgian language, that after extensive inquiries, the current interpreter is the only one available despite your lack of confidence in her translation abilities. I do not doubt her …

   …

   Judge: The main document I will be dealing with is the Torture Claims form you completed with the assistance of the Duty Lawyer … your English is of a high standard and I will try keep my language as simple as possible. Due to the nature of the proceedings, we will not be using legal terms or jargon. But I will still like to keep on using the translator for certain moments. You can read sufficient English in the form?

   Appellant: I have raised that I do not like the translation standard.

   Judge: You have raised that before but that will not stop the proceedings.

   Appellant: Then I will proceed.

   Judge: Then I will use the services of the translation when I need to explain something to you but we will proceed in English. The translator is for both your benefit and my benefit and I would like her present. …”

31.It is clear from the above that the Applicant never used the interpreter in his process before either the Director or the Board that could have adversely affected or prejudiced his evidence even if the interpreter were the one whom he suspected to be, and of which the Applicant only found out after the hearings.

32.I should also mention that at the hearing of his application before me, the Applicant confirmed that he did not require any assistance from the interpreter as he believed that he is now more fluent in English than his native Georgian which he has rarely spoken these days, and indeed he was able to conduct his application before me without any difficulty. In the premises, and for the reasons given, I do not find this complaint of the Applicant about the interpreter during his hearings before the Board reasonably arguable at all for his intended challenge.  

Ground 2: Procedural Unfairness/Irrational Credibility Assessment

33.For this ground the Applicant complains that the adverse findings made by the Adjudicator on the credibility of his claim regarding his alleged escapes from the Georgian police and of his coming into possession of highly incriminating documents and tape recording which implicated high level officials as inherently impossible and incredible which the Applicant argues as procedurally unfair and/or irrational.

34.In the Board’s decision, the Adjudicator made the following findings about the Applicant’s credibility:

   “Credibility of the Claimant

   117. The Claimant ‘s general credibility is doubtful. His evidence relating to his arrest at the political rally in Ambrolauri inherently lacks credibility and his evidence of escaping from the police station is inherently implausible. His description of the claimed ill-treatment during 7 months of detention at the same station also lacks credibility. All of the Claimant’s evidence relating to his claimed political activities is extremely vague and lacks credibility and I am unable to attach any weight to his evidence in this regard.

   118. The article in the publication ”Power and Justice” is a self-serving document which merely repeats, in general terms, some of the Claimant’s assertions of detention and ill-treatment at the hands of the Georgian authorities. The article does not advance the Claimant’s case given my findings in relation to the Claimant’s general credibility.

   119. The Claimant’s evidence relating to his coming into possession of the highly incriminating documents and a tape-recording which implicated high-level officials in a murder is inconsistent and inherently implausible. His assertion that he cannot divulge any details relating to the nature of the documents and tape-recording because it would put others at risk is implausible given that the Claimant says that he understands the confidential nature of all non-refoulement procedures.

   120. According to the Claimant, the non-refoulement (emphasis added) of information from the ‘highly incriminating” documents and tape-recording, which he divulged to a journalist, later led to the arrest of the Claimant. The evidence is based solely on the Claimant’s speculation that the editor of the newspaper for which the journalist worked “must have” passed the story, which was not published, to the security services.

   121. The Claimant’s evidence that he managed to escape by jumping from the car, in which he was guarded by 3 security officers, is inherently implausible and further undermines the general credibility of the Claimant.”

35.The Applicant further submits in his written submissions [9] that these conclusions were “opinions made without substantiation, and such which would not be held by reasonable individuals who understand and have experienced the real-life situations of insidious state-sanctioned political persecution in Georgia as supported by recent country of original information”, of which I take it to mean that in making these adverse findings as to his credibility that the Board had failed to consider all the relevant matters including COI as to then conditions and situations in Georgia and/or to give any or sufficient reasons for its such adverse findings.    

36.It is a well-established principle that the burden of proof of his claim lies on the applicant, while the duty to ascertain and evaluate all the relevant facts is shared between him and the decision-maker, as set out in the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued February 2019, where it deals with the principles and methods in establishing the facts of the individual case as follows:

   “195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.

   196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

   197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

   198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

   …

   201. 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” …

   202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘underserving case’.”         

37.These principles were affirmed by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [21], and where Li CJ proceeded to state that all relevant matters of the applicant’s case should be considered, and with high standards of fairness to be complied when considering individual cases as follows:

“52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(a)  The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violation of human rights in that country? Has the situation changed?

(b)  Has the potential deportee been tortured in the past and how recently?

(c)  Is there medical or other independent evidence to support the claim of past torture?

(d)  Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(e)  Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned…

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.” 

38.As noted above in the Board’s decision, and as submitted by the Applicant, it seems that the Adjudicator found his general credibility doubtful primarily as to his evidence relating to his arrest in Ambrolauri and his subsequent escape from the police station, his coming into possession of the incriminating documents and tape-recording which implicated high officials, and again his escape from the police car all inherently implausible but without providing any reason or explanation as to how or why they were so.

39.In the case of Re Hidayah [2018] HKCA 595, the claimant was absent from the scheduled oral hearing before the Board, and the Adjudicator stated in the Board’s decision that he was unable to determine the credibility of the claimant’s assertions and hence was unable to determine whether there is a real risk or there are substantial grounds for believing that she would suffer the harm she claims to fear,and therefore dismissed the claimant’s appeal on all applicable grounds.

40.The Court of Appeal, in allowing the appeal against the decision of the Court of First Instance in refusing leave to apply for judicial review of the Board’s decision, held that the Board had failed to give adequate reasons for dismissing the appeal, as Chu JA in giving the judgment of the Court stated:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

 16. We are of the view that eth applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”  

41.In the present case, it seems to me that in finding that the Applicant’s evidence as to his political activities extremely vague and lacked credibility, and that those events of his escape from the police were inherently implausible, the Board also failed to give any or adequate reasons for such adverse findings in its decision.

42.Furthermore, as a matter of fact, were those evidence indeed inherently implausible, extremely vague or lacked credibility?  The Applicant’s evidence relating to his claimed political activities in Georgia and various accounts of arrests which led to his departure of the country for various places and eventual arrival in Hong Kong were extracted from his TCF and SCF as well as his screening interviews and reproduced in the Director’s decision at §33 with details that span some 13 pages and 75 paragraphs, and with his evidence for his arrest in Ambrolauri, as an example, as follows:

“Arrest in September 1995

(p) In September 1995, you were arrested at a political meeting in Ambrolauri which was being addressed by Zurab Zhvania, the General Secretary of the then governing Union of Citizens of Georgia Party established by the 2^nd President. According to you, Zurab Zhvania died in 2005. You attended the meeting with a companion. You had put two questions to Zurab Zhvania about his party’s membership base and its funding which were unanswered. Immediately afterwards, you and your companion were approached by plain clothes policemen who accused both you and your companion of fomenting crowd disorder by provocative questioning. You and your companion were arrested at gun point, handcuffed and taken to the Ambroulari police station where you were beaten with the butt of a gun and pieces of wood until you lost consciousness. Your companion was quickly released and you were held for another two weeks during which you were repeatedly beaten on at least five other occasions and threatened with imprisonment if continued to get involved in politics. You believe the primary reason for the unlawful and brutal treatment amounting to torture was not os much about your conduct at the political meeting or your refusal to undergo military service but for more general reasons of your political orientation …

Escape from the police station

 (q) You were eventually managed to escape from the police station through a lavatory window with the help of an old school friend who was working in the local police force. You were the taken to Tbilisi by car …”

43.Likewise for his evidence of coming into possession of documents and tape-recording which implicated high level government officials and his subsequent escape from a police car, it was recorded in the Director’s decision as follows:

“1^st Escape from Georgia in fear of life in 2004

(ee) During the summer of 2004, some documents and a tape-recording came into your possession. They implicated 4 high level government officials in a murder. One of these persons was a senior military officer, the others were political figures. However, you were fearful about revealing the identities of these persons because it would expose members of your family to unacceptable risks of injury or other form of harm committed in revenge by these powerful people or those acting under their order. You said that such things are all too common in Georgia.

(ff) You revealed much of this information to your journalist friend who worked in “Main”. “Main”, a newspaper having the largest circulation rate in Georgia, has been closed down by the authorities. The journalist prepared a story and submitted to his editor. The story contained more detail than you had authorized him to reveal. However, the editor suppressed the story and your journalist friend was also dismissed.

Stopped by police outside aunt’s house in Tbilisi in 2004

(gg) You believed that the editor must have passed on the story to the Georgian security services because three days after your journalist friend was sacked, you were stopped by men in police uniform outside your aunt’s home in Tbilisi and bundled into a car. It was night time. The police proceeded to question you while the car was being driven round and round. They demanded you to tell them what information you had about the document and tape recordings. They showed you a gun and threatened you that unless you told them everything, they would report that you had been found in possession of a gun and that you were involved in buying large quantities of guns and drugs s that you would get a substantial prison sentence. You managed to jump out of the car and hid from the police and so managed to evade capture. These people later rang you on your mobile telephone and threatened that if you did not leave Georgia, something would happen to your family.”

44.According to the transcript of his oral hearing before the Board, the Applicant gave further details as to his escape from the car as follows:

“J: Three days after the journalist was fired, you were taken by police in Tbilisi and taken in a car

A: Yes

J: In the car, they demanded that you gave them information about the documents ad the recordings. They threatened you that you would be in possession of a gun and drugs. They would set you up

A: Yes

J: How many officers were there

A: Three

J: You managed to jump out of the car

A: Yes, when you live in this way, you instinctively know what to do in these situations. The road was bumpy and the car was going slowly for a short distance. So I pretended to be drunk and they did not expect me to open the car door suddenly. There was a big construction site next to the road. It was at night and it was difficult to see anything. When I jumped out, they could not care to see me. I fell down the slope into some water

J: Where was this

A: In an urban area. One of the suburbs of Tbilisi. Vazisubani

J: Did the police look for you

A: They could not follow. It was a cliff and dark. They did not want to risk their lives.

J: Did you have to hide somewhere

A: I walked through the buildings at night and went to friends. I changed clothes.

J: Where was the friends house

A: Nearby in the same area.

J: That was in the middle of 2004

A: Yes …”

45.Of all such information from the Applicant, the Board did not in its decision explain or give any reason why they were found to be vague or lacked of details, or which of them were inherently implausible or why they were so. Nor, for that matter, did the Board appear to have referred to any of the many COI produced and relied on by the Applicant or those listed and discussed in the Director’s decision, in particularly those relevant to the political situations and conditions then in Georgia which upon the collapse of the former Soviet Union was then going through various economic and political instabilities including the Rose Revolution in 2003 referred to by the Applicant in his evidence before both the Director and the Board.     

46.As noted above in Prabakar, the conditions in the country concerned must be considered, as an understanding of country conditions both at the time of the alleged torture or persecution risk in the past as well as at the present time is usually relevant to the assessment of the claim or of its credibility.

47.In UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013, it is stated that the challenges of the credibility assessment in the asylum procedure are widely acknowledged, as the courts have to decide under conditions of uncertainty in the asylum system, which is further compounded by the geographical and cultural distance between the country of origin in which the alleged facts occurred and the country in which the application for international protection is examined, as well as the amount of time that has elapsed between these facts and the hearing of the case (para 1.3 at p30).

48.Such challenges were in fact stressed by Lord Justice Keene of the UK Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at para 25:

“An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a morehomely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.”

49.In the premises, and for all these reasons, I am of the view that it is reasonably arguable that in rejecting the credibility of the Applicant’s claim, the Board had failed to give any or sufficient reasons or explanations for its adverse findings as to his claimed political activities and various arrests by the police and his subsequent escapes, and/or that its such findings were irrational or unreasonable and that they so tainted and flawed its conclusion, and/or that it failed to take into account or consideration of all the relevant and available COI in its assessment of the Applicant’s claim, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 to apply for judicial review of the Board’s decision.

50.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds as stated above, and by way of Order 53 Rule 5 of the Rules of the High Court, Cap 4A, I direct that 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 the Director as interested party.     

Dated the 7^th day of February 2022.

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