Masud Md v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2816/2018

[2023] HKCFI 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2816 OF 2018

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J U D G M E N T

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INTRODUCTION

1.This is the hearing of the Applicant’s application for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 3 December 2018, pursuant to leave granted by the Court of Appeal.

2.The Applicant is a Bangladeshi national. He entered Hong Kong illegally in January 2015. He was arrested by the police and then referred to the Immigration Department. He lodged a non-refoulement claim on the basis of his fear that, if returned to Bangladesh, (a) he would be harmed or even killed by supporters of the Awami League (“AL”) because of his support and membership in the opposing Bangladesh Nationalist Party (“BNP”) and (b) he would also face false charges laid against him by the Bangladeshi police arising from the conflicts between the AL and the BNP.

3.In due course, his claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”) and rejected by the Director of Immigration in his Notice of Decision dated 31 October 2017 (the “Notice”). His appeal against the decision in the Notice was dismissed by the Board’s Decision. His application for leave to apply for judicial review of that Decision was refused by this Court. On his appeal, the Court of Appeal granted him leave to apply by its judgment dated 7 October 2021[1] (the “CA Judgment”),

THE APPLICANT’S CASE OF NON-REFOULEMENT PROTECTION

4.The Applicant’s case and his personal background as set out in his non-refoulement claim are summarised in Paragraphs 7 to 9 of the Decision[2]. His evidence and a discussion of his evidence are extensively set out in Paragraphs 39 to 71 of the Decision[3]. In gist, he was a supporter of the youth wing of the Bangladesh Jatiotabadi Jubodol of the BNP. He was promoted to the position of General Secretary of the youth wing of the BNP in early 2014. His active participation in the activities of the BNP attracted the attention of Arif of the student wing of the AL. Before the general election in January 2014, Arif called him and threatened that he should either quit the BNP or leave the country otherwise he would be beaten to death. The threats escalated in number and frequency of calls. For his safety, the Applicant applied for a visa to travel to China. He moved to Saidabad and then to Narayangonj Jollapar in Dhaka. Still, between January and October 2014, he received many threatening calls from the AL people and eight to ten face to face threats.

5.The AL won the election. Then, the BNP staged a protest on 5 January 2014. The protest ended with the police and the AL leaders beating up the protesters, including the Applicant. The Applicant was hospitalised for two or three days. Later, he learned that a false case of fighting had been filed against him by the police. A few days later, he received a phone call from Arif threatening him to leave Bangladesh otherwise he would be killed or arrested by the police for the forged case. Thus, he fled to China on 1 January 2015 and then sneaked into Hong Kong.

6.The documents presented to the Board included copies and translations of the arrest warrant, letter of complaint, initial facts statements issued by the Chief Judicial Magistrate in Munshigonj between June and August 2014 relating to offences committed by the Applicant in April 2014, and a letter by a police officer to the officer in charge of the Munshigonj police station requesting action to be taken against the Applicant and his associates for a number of criminal offences committed on 25 April 2014 (collectively, the “arrest warrant and related documents”).

THE HEARING BEFORE THE BOARD

7.The Board scheduled an oral hearing on 15 October 2018, which the Applicant attended. After introducing itself and explaining the purpose of the hearing and the issues involved, the Board began to ask questions of the Applicant. A few questions were asked and answered. When the Board began to ask questions more germane to the issues, the Applicant told the Board that he was not feeling very well, that everything he wanted to tell the Board was in the hearing bundle, and invited the Board to make a decision on the basis of the documents in the hearing bundle. The Board nevertheless pressed on with a few more questions. Eventually, after the third attempt and on the Applicant’s insistence, the Board desisted and concluded the oral hearing. On 3 December 2018, the Board issued its Decision dismissing the Applicant’s appeal.

THE BOARD’S FINDING AND REASONS

8.The Board understood it was its duty to make an independent decision in relation to the Applicant’s claim and that the burden of proof of his claim was on the Applicant but that burden is a very light one. It understood that does not mean the Board may adopt an attitude of sitting back and putting the Applicant to strict proof of his claim. It was mindful of its duty of joint endeavour to assist the Applicant in establishing his claim and the Applicant is under a reciprocal duty to cooperate and provide all necessary information, including by answering questions put to him. It was also mindful of its duty to apply the high standard of fairness in determining the Applicant’s appeal[4].

9.The Board found the Applicant is not a witness of truth and his failure to participate in the hearing led the Board to conclude no weight can be attached to his evidence which are merely assertions unsupported by credible evidence. These findings or observations of the Board are heavily relied on by the Applicant and are quoted hereunder:

“72. The Board has carefully considered the [Applicant’s] claims and had regard to the principles and the law as outlined above. Having done so, and having regard to the internal coherence of his statements, their consistency with each other and the relevant level of detail he has been able to provide, the Board has formed the view that the [Applicant] is not a witness of truth. As discussed above, there are many inconsistencies to which the Board has not been able to adduce sufficient evidence to make out the [Applicant’s] claims.

…

76. The burden upon the [Applicant] in terms of his factual claims is a relatively light one, as set out above, but it cannot be discharged merely by making a set of limited written assertions, which are untested and contain insufficient detail and inconsistencies. The [Applicant] decided to appeal against the decision made by the [Director] and in order to discharge his part of the “shared” burden of proof, was required to attend the hearing to give evidence, to answer the Board’s questions and deal with matters needing clarification. His failure to participate in this process leads the Board to conclude no weight can be attached to what are essentially mere assertions.

77. … the Board invited the [Applicant] to attend a hearing as the available information provided by him was insufficient and the Board had a number of questions in order to clarify aspects of his claims. … although he did attend the hearing, the [Applicant] said he essentially wanted to rely on information he had already provided to the Department and that he was unable to continue with the hearing.

78. … Due to the [Applicant’s] reluctance to continue with the hearing, and the limited and insufficient information submitted with his [Non-refoulement Claim Form] and at interview, his account of events continues to stand as mere assertions and little or no explanation of various matters of concern has been provided. …” (My emphasis added)

It would be convenient to refer to the last sentence in Paragraph 76 of the Board’s Decision quoted above which Ms Isabel Tam, counsel for the Applicant, had repeatedly relied on in her submissions that the Board had drawn adverse inference against the Applicant for his failure to participate in the oral hearing without warning or alerting him of such consequence. Though by that sentence the Board pointed out the causal relationship between the Applicant’s refusal to participate and the Board’s giving no weight to his evidence, the Board never drew any adverse inference from his refusal to participate. What underlie the Board’s assessment of the Applicant’s credibility are the gaps, inadequacies and inconsistencies in his evidence and inherent improbability. The Board made no adverse finding whatever against the Applicant by drawing adverse inference against him for his refusal to participate in the oral hearing.

10.Then the Board listed out its concerns about the Applicant’s case in Paragraphs 79 to 82. These are (1) the timing of the Applicant’s application for his first China visa and passport in November 2013 and reasons for doing so at that point in time; (2) the letter purportedly issued by the President of his branch of the youth wing of the BNP in which the issuer did not state his identity; (3) the nature of the threats and frequency before and after his appointment as General Secretary, his face to face encounters with people threatening him, his reasons for the flight etc; (4) reasons for submitted the arrest warrant and related documents which do not refer to the January 2014 protest and false criminal charge he relied on; and (5) the ease with which he left Bangladesh. Then the Board concluded at Paragraph 83 of its Decision that without further information, the Board was not satisfied the Applicant had established any of the facts he had asserted and dismissed his appeal.

GROUNDS OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

11.The Applicant’s grounds of application for leave to apply for judicial review as advanced in his supporting affirmation are:

(1)  the Applicant was not educated;

(2)  no lawyer was provided to him for advice;

(3)  the Board decided the case on assumption, without even considering many serious evidence provided; and

(4)  reversal of the decisions of the Board and Director of Immigration as they both inferred no case in the absence of another evidence.

These grounds were all rejected by this Court[5]. No issue of procedural unfairness had been raised. In its overall scrutiny of the Decision, this Court could not find any errors of law, procedural unfairness or irrationality in the Decision. Hence, it refused his leave application.

GROUNDS OF APPLICATION FOR JUDICIAL REVIEW AND THE ISSUES

12.The Applicant appealed this Court’s decision refusing him leave to apply for judicial review. The Court of Appeal was concerned with the Board’s failure to accord the procedural fairness to which the Applicant was entitled, which this Court had not specifically dealt with in its Form CALL-1. In connection with this hearing, leave was granted to the Applicant to file an amended Originating Summons (Amended Form 86) containing his perfected grounds of application. In her skeleton argument, Ms Tam submitted that these grounds revolve around the Board’s failure, particularly in respect of the following:

(1)  the Board failed to point out the potential credibility issues to the Applicant, whereas such issues were determinative to his claim, depriving the Applicant of the opportunity of dealing with those issues; and

(2)  the Board failed to notify the Applicant of the consequences of refusing to give further oral evidence or answer the Board’s questions, namely the Applicant’s claim was bound to fail due to such refusal.

13.The issues raised by these grounds, as submitted by Ms Leona Cheung, counsel for the Interested Party, and to which I respectfully agree, are:

(1)  On the law, what the rules of fairness require in an oral hearing before the Board in terms of (i) the extent of questioning and putting case, and (ii) warning the claimant of the consequences of a failure to answer questions from the Board; and

(2)  On the facts, whether the Board had failed to observe the said rules in the instant case.

APPLICABILITY OF THE RULE IN BROWNE V DUNN IN NON-REFOULEMENT PROCEEDINGS

14.An oral hearing was scheduled and attended by the Applicant. The controversy between the parties is about the standard of fairness to be observed at the oral hearing and not whether such a hearing had been held. Ms Tam relies on the rule in Browne v Dunn[6] implicitly applied by the Court of Appeal in MS v Torture Claims Appeal Board[7]as laying down the standard of fairness to be observed at an oral hearing in terms of (1) affording the claimant an opportunity to know and address potential credibility issues; and (2) an opportunity to know and address determinative issues and warning of consequences of failure to address such issues.

15.The rule in Browne v Dunn mainly deals with the question of credibility of witness. The essence of the rule is that when the truthfulness of a witness’ account, or a particular aspect of it, is being challenged, the witness must be notified that his credibility would be impeached and cross-examined so that he may have the opportunity to reply, explain or otherwise deal with that aspect of his evidence. A failure to cross-examine the witness on some material part of his evidence or all of it may be treated as acceptance of the truth of that part or the whole of his evidence: see Leung Wing Yi Asther v Kwok Yu Wah[8]. The rule also applies to documentary exhibits produced by a witness which is suggested to be fraudulent: see Abdelrahman v Canada (Citizenship and Immigration)[9]. Ms Tam also submits relying on MS v Torture Claims Appeal Board that when a decision-maker intends to draw an adverse inference from certain matters in relation to a witness, as a matter of fairness, the witness should be made aware of the possibility of such adverse inference.

16.While accepting that the rule in Browne v Dunn is consistent with the high standard of fairness required in non-refoulement proceedings, Ms Cheung argues that the rule is not strictly applicable to non-refoulement proceedings and bringing in the rule to such proceedings is both unnecessary for the present case and dangerous as the corpus of case law developing the rule is in the adversarial litigation setting which is starkly different from the non-adversarial joint endeavour setting in non-refoulement claim proceedings.

17.As acknowledged by the Court of Appeal in the CA Judgment[10], it is not aware of any Hong Kong case in which the Court explicitly held that the rule should be observed in proceedings before the Board. What was applied by the Court of Appeal is the spirit of the rule. In Pradeep Kumar[11], delivered seven months after the CA Judgment, a differently constituted Court of Appeal, expressed its agreement with the observations of Zervos JA in HKSAR v Chan Hing Kai[12] in the context of criminal litigation that the rule in Browne v Dunn admits of flexibility and requires considerable care and circumspection in its application. It is all the more so in the application of an analogous rule in the context of the adjudication of a non-refoulement claim.

18.The rule in Browne v Dunn is an ancient rule of evidence developed in civil litigation. It was then adopted in criminal proceedings. It evolved from an adversarial or hostile litigation context in which the contesting parties had their respective case to put forward and their opponent’s case to contest. Hence fairness requires a party to put its case to the other party or his witnesses or to put them on notice that their credibility is going to be challenged and give that party or his witnesses a chance to respond or explain and to prevent surprises. In stark contrast, in non-refoulement proceedings, the claimant has a case for protection to put forward to the Board but the Board does not have any case of its own to put to the claimant. The Board’s duty is not that of a prosecutor. It is not the Board’s duty to reject a claim or to discredit a claimant. Though it is sometimes ineptly said that the Board has a duty to ‘test the case’ of the claimant, the Board’s duty is to help the claimant by way of joint endeavour to find out as far as possible a solid basis on which to assess the credibility of the asserted facts. That is how the word ‘test’ should be understood.

19.Not only shall the Board not engage itself in hostile contest with the claimant, the Board has a shared duty of joint endeavour with the claimant to prove the claimant’s claim. Joint endeavour is an interactive process. Under this duty of joint endeavour, the Board and the claimant have to cooperate with each other in their common goal to find out as far as possible a solid basis on which to assess the credibility of the asserted facts. Neither party may sit back and leave to the other party to prove the claimant’s claim. The claimant plays an absolutely central role because he initiates the procedure and is the only person able to explain, in concrete terms, what has happened to him and the background against which it has taken place. He has certain obligations stated in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”) to assist the decision-maker in ascertaining and evaluating the facts in support of his non-refoulement claim. These obligations are acknowledged by the international communities as fair obligations which should be imposed on the asylum seeker. These obligations include:

(i)  To tell the truth and assist the decision-maker to the full in establishing the facts of his case.

(ii)  To make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary, he must make an effort to procure additional evidence.

(iii)  To supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the decision-maker to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

20.Thus, in the context of non-refoulement proceedings, it is inappropriate and undesirable for the Board to even put a case to the claimant, for the Board does not have a positive case to put. For the Board to put or suggest to the claimant that his evidence is incredible is equally undesirable as it may give to the claimant an impression that the Board is prosecuting instead of assisting him in proving his claim and that it has pre-determined or is biased. That would be destructive of the trust relationship in a joint endeavour and would obstruct the function of the Board rather than enhance it. Hence, as provided in Paragraph 8 of the Principles, Procedures and Practice Directions of the Torture Claims Appeal Board[13] (“Practice Directions”), depending on the facts, it may be appropriate for the Board to draw the claimant’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant; and there is no duty to keep on probing or inquiring where the objective circumstances make it reasonably clear that the claimant is aware of what he wanted to show and has already produced or mentioned all that he wanted to show.

21.The fundamental natural justice principle of duty to act fairly has been incorporated in the Practice Directions. Most if not all the rules of fairness applicable to non-refoulement proceedings have been codified in Schedule 1A to the Immigration Ordinance. Section 12 of Schedule 1A to the Immigration Ordinance gives the Board the discretion to determine an appeal without a hearing, if having regard to the material before it and the nature of the issues raised, it is satisfied that the appeal can be justly determined without a hearing. Some of these standards are set out in the Practice Directions. Paragraph 8.1 of the Practice Directions provides that the purpose of holding an oral hearing is not only to assist the Board in its decision-making, but also to reflect the claimant’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. Paragraph 8.3 stresses the importance of affording the claimant the opportunity to make worthwhile or effective representation as part of the requirement of fairness in such a decision-making process. Paragraph 8.4 gave the presence of material factual dispute which cannot be decided on paper as an example when an oral hearing is called for.

22.More significantly for the present purpose, Paragraph 8.5(a)(ii) reminds the Board that the high standard of fairness requires the Board to draw the claimant’s attention to matters that obviously require clarification or elaboration so that they can be addressed by the claimant. That paragraph also makes it clear that there is no duty to keep on probing or inquiring where the objective circumstances make it reasonably clear that the claimant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to show. Paragraph 8.5(b) emphasises the need to give the claimant an opportunity to be heard orally or in further writing where the Board considers there is anything which is material to the determination of the appeal and which the high standards of fairness requires. The Board should take the most effective and fairest way to approach the concern in question. Examples where an oral hearing or further written representations are required include where there is any point, factual or legal, on which the Board is not sure; or which has not been dealt with adequately or at all; or the materials placed before the Board calls for some further probing, questioning or inquiry, particularly if the absence of such further probing, questioning or inquiry would lead to the Board drawing an inference adverse against the appellant. All but one, which I shall turn to in the next section, of the high standards of fairness which Ms Tam tries to bring into these non-refoulement proceedings through application of the rule in Browne v Dunn, are contained in the Practice Directions. As Ms Cheung submits, the application of the rule in Browne v Dunn to non-refoulement proceedings is quite unnecessary.

23.I also agree with Ms Cheung that the rule in Browne v Dunn which evolved from the context of hostile litigation is not strictly applicable to non-refoulement proceedings and that a strict application of the rule to non-refoulement proceedings may even be dangerous. What has been consistently applied by the courts in non-refoulement proceedings is the spirit of the rule to the particular circumstances of the case. And in applying the spirit of that rule, the court must exercise considerable care and circumspection and allow some degree of flexibility.

(1) Duty to afford opportunity to know and address material or potential credibility issues; and (2) Duty to warn of consequence of not participating or not continue participating in the oral hearing

24.Counsel have no dispute that an oral hearing is required in this case and once an oral hearing was held and attended by the Applicant in person, all the rules of fairness that are required to be observed in an oral hearing come into play. A reasonable opportunity to be heard entails not just an occasion to be heard, but includes the opportunity to make worthwhile or effective representations. The high standard of fairness therefore requires that the Applicant’s attention must be drawn to matters that obviously require clarification or elaboration and credibility issues relating to the Applicant so that he may deal with them. But, there may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the claimant 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. The Board is also not obliged to send the claimant an advanced copy of its decision in draft for the Applicant’s comment, before it can make a final decision on the claim: see ST v Betty Kwan[14], TK v Jenkins & Anor[15] and Paragraph 8.5(a)(ii) of the Practice Directions. The high standard of fairness required by this duty has been provided for in the Practice Directions. Counsel have no disagreement about the Board’s duty to afford the Applicant the opportunity to know and address material or potential credibility issues and the high standard of fairness required. Their dispute is whether on the fact, the high standard of fairness was observed in the oral hearing before the Board.

25.Counsel are also in dispute as to whether this duty goes that far as to include a duty to warn of the consequence that the claim is bound to fail if the claimant does not participate or continue to participate in the oral hearing. Ms Tam submits that this duty accords with the requirement set out in ST v Betty Kwan that fairness requires informing the claimant the case which he has to answer, which is the determinative matters of concerns and the consequences thereof, so that the claimant can make worthwhile representations. She submits that the duty is not onerous. Warning is only required if refusal to give evidence would be fatal. She quotes Paragraphs 20, and 44(4) of the CA Judgment as authority in support of the existence of such a duty. In these paragraphs, the Court of Appeal said:

“20. It is not apparent from the Board’s Decision whether the Board’s view was formed before, during or after the Board hearing. From §39 of the Board’s Decision, whilst the Board did tell the applicant that the Board would like to further discuss his claim with him, it does not appear that the applicant was warned that his case was bound to fail unless he continued to participate in the oral hearing.

…

44. Therefore, on the particular facts of this case, we think it reasonably arguable that a procedural unfairness occurred, because:

…

(4) other matters of concern, which were determinative in the Board’s decision, were not directly explored, nor were the consequences (or potential consequences) of that apparently directly put to the applicant.” (My emphasis added)

26.With respect to Ms Tam, I do not think the Court of Appeal has by those paragraphs laid down any duty to specifically warn a claimant that his case is bound to fail unless he continues to participate in the oral hearing. What the Court of Appeal said in Paragraph 20 was to point out the fact that the Applicant had not been warned that his case was bound to fail unless he continued to participate in the oral hearing. In Paragraph 44(4), it only identified the procedural unfairness as, first, the Board’s failure to explore with the Applicant other matters of concern which were determinative in the Board’s decision; and second, the Board’s failure to explain to the Applicant the consequences or potential consequences of leaving those matters unexplained. The Court of Appeal did not identify the unfairness as a breach of a specific duty to warn the Applicant that his case was bound to fail unless he continued to participate in the oral hearing.

27.In Pradeep Kumar[16], delivered seven months after the CA Judgment, Lam JA who also sat in Re Masud Md, explained that what the Court of Appeal held in the CA Judgment was that the Board arguably failed to act in accordance with the requisite high standard of fairness when matters of concern determinative of the outcome were not explored with the claimant, or when the consequence of those matters if left unexplained were not put to the claimant. The Court of Appeal did not create a specific duty to warn a claimant that his case is bound to fail unless he continues to participate in the oral hearing.

28.In Buniag Renante Lulu v Torture Claims Appeal Board & Anor[17], delivered about a month after Pradeep Kumar, another differently constituted Court of Appeal held that the CA Judgment in this case “did not lay down a rule that a ‘warning’ must be given whenever [claimants] refuse to give evidence or to answer questions from the Board that their case will bound to fail unless they continue to participate in the oral hearing”. Rather, it construed that the effect of the CA Judgment is that in cases where the claimant’s refusal to give evidence would be fatal to his or her claim, the claimant should be given notice, not warning (my emphasis), that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. This is just another way of expressing the duty to afford opportunity to know and address material or potential credibility issues.

29.I am not aware of any authority in support of Ms Tam’s proposition that the high standard of fairness requires the Board to warn a claimant that his claim is bound to fail if he does not continue to participate in the oral hearing or the broader duty of warning of consequences of failure to address determinative issues whenever a claimant refuses to give evidence or to answer questions put by the Board. In arguing that such duty exists, Ms Tam is seeking to apply the rule in Browne v Dunn or an analogous rule to non-refoulement proceedings as if they were adversarial proceedings. The authorities hitherto discussed do not support such direct application of the rule to non-refoulement proceedings. On the contrary, the authorities stressed the importance of exercising care and allowing for flexibility in applying the spirit of the rule to non-refoulement proceedings.

30.The duty to warn as submitted by Ms Tam is no different from putting to a witness that he is lying or not telling the truth. But there is a huge difference in context. In adversarial proceedings, a party only challenges the credibility of a witness if he has a positive case to put to him and has laid a foundation for so alleging. As emphasised before, in non-refoulement proceedings, the Board’s role is not to contest a claim, it has no duty to reject a claim and it has no positive case to put forward to the claimant. Its duty is to assist the claimant by making joint endeavour with him to find out as far as possible a solid basis on which to assess the credibility of the claimant’s case. To warn a claimant as Ms Tam suggests is to coerce him to answer questions against his own free will, which may even be adverse to his interest. It would also be inconsistent with the duty of joint endeavour and damaging to that relationship.

31.Fairness is a very wide and fluid concept. The standard of fairness is difficult, if not impossible, to define. It is difficult as well as inappropriate to lay down hard and fast rules. It all depends on the circumstances, including the context of the decision, and this is to be taken into account in all its aspects. There are no absolute standards. The standard of fairness may even change with time. It also varies according to circumstances. It is not to be applied by rote identically in every situation. As was held by Lord Mustill in Secretary of State for the Home Department, ex p Doody[18], what fairness requires is essentially an intuitive judgment. The standards of fairness are not immutable. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. This last point is also accepted by the Court of Appeal in the CA Judgment[19]. Lord Mustill said[20]:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification’ or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.” (My emphasis added)

32.The obligation to provide international protection arose from the conventions underlying the USM entered into amongst member states to the conventions. This is the context which creates the obligation to provide protection and the duty of the decision-maker in the member states to act fairly. The standard of fairness has to be determined against this context. It is clear from the UNHCR Handbook that protection is not unconditional. A claimant has to prove his claim and cooperate with the decision-maker of the host state. He may not merely state his case and do nothing but leave it to the decision-maker of the host state to disprove his claim. The Board’s duty is to assist by way of joint endeavour. But to require the Board to go to the extent of putting a contrary case (which the Board does not have) to the claimant and warning him that his claim is bound to fail if he does not answer questions goes far beyond what the international communities have contemplated.

33.In determining the high standard of fairness, the opportunity to make worthwhile or effective representations is a convenient starting point. This is an important requirement of fairness in most if not all situations. In that regard, the high standard of fairness must require that the claimant be afforded an opportunity to know and address material issues, including potential credibility issues and issues determinative of his claim: see Paragraph 8.5(b) of the Practice Directions, and ST v Betty Kwan. If his claim is bound to fail, fairness requires that he be given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached: see Buniag Renante Lulu v Torture Claims Appeal Board & Anor. But I am not aware of any authority laying down any principle that the high standard of fairness requires the Board to go that far as to warn the claimant that his claim is bound to fail if he does not participate or continue to participate in the oral hearing.

34.Both the claimant and the Board have a duty to cooperate with each other to find out as far as possible a solid basis on which to assess the credibility of the Applicant’s case. As the claimant bears the burden of proof, the high standard of fairness certainly does not entitle the claimant having started a claim, to simply sit back and require the Director (and the Board) to disprove it. To hold otherwise would be to further reduce the low standard of proof to proof on mere assertions. Likewise, as the Board is under the duty of joint endeavour, it may not simply sit back and put the claimant to strict proof of his claim: TK v Jenkins & Anor[21]. Thus, depending on the facts, as has always been emphasised by the authorities, the high standard of fairness may, or may not, require the Board to probe further into the claimant’s answer or omission. If the claimant does not perform his part of the duty of joint endeavour by answering the Board’s question, the Board could not make any meaningful contribution in assisting him to prove his claim. The claimant could not, by his own failure in performing his duty of joint endeavour and discharging his burden of proof, make it more onerous for the Board in discharging its duty of joint endeavour. In that situation, the claimant is actually abusing the good faith or generosity of the host state in providing asylum protection.

35.Joint endeavour is an interactive process. Thus, depending on how the claimant cooperates with the Board, the Board may or may not be able to explore or fully explore with him the inadequacies of his case. If the claimant is cooperative, the Board may engage in more specific discussion with him about the inadequacies. The standard of fairness increases as the claimant cooperates in the joint endeavour.

36.Even if the claimant is not cooperative, the high standard of fairness, nevertheless, requires the Board in the discharge of its duty of joint endeavour to probe further into his evidence. But how far does this duty go where the claimant is uncooperative? In ST v Betty Kwan and TK v Jenkins & Anor, the Court of Appeal held that there is no duty on the Board to keep probing or inquiring where the objective circumstances make it reasonably clear that the claimant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to show. This is where this duty ends. The Court of Appeal also held that there is no duty to send the claimant an advanced copy of its decision in draft for his comment, before it can make a final decision on the claim. See also Paragraph 8.5(a)(ii) of the Practice Directions. Thus, there is no duty on the Board to keep probing further into the claimant’s answer or omission or to put matters which concern the Board to him, if he is unwilling to answer the Board’s questions. Putting that in another way, in such a situation if the Board has ensured that the claimant is aware of what he has to show and has already produced or mentioned all that he wants to produce or mention, it has discharged its duty of joint endeavour to the requisite high standard of fairness.

WHETHER THE APPLICANT HAD BEEN GIVEN NOTICE THAT SOME ASPECT OF HIS EVIDENCE WOULD NOT BE ACCEPTED AND HIS CREDIBILITY IMPEACHED

37.The major thrust of the Applicant’s complaint is that he had not been given any notice that some aspects of his evidence would not be accepted, that his credibility would be impeached and that adverse inference would be drawn against him. He said had he been given notice of such he would have answered the Board’s questions. In his supporting affirmation, he set out how he would have answered the Board’s concerns.

38.The major concerns of the Board are set out in Paragraphs 79 to 82 of the Decision[22]. In particular, it considered that the arrest warrant and related documents as well as the case as asserted by the Applicant raised questions of inconsistencies in the Applicant’s case which need to be resolved and gaps which need to be filled. It therefore scheduled an oral hearing, expressed its concerns and gave the Applicant an opportunity to be heard and to participate in the decision-making process of the Board. In this respect, the Board could not be criticised of any failure in observing the high standard of fairness.

39.After introducing itself, the Board directly informed the Applicant that the reason for the hearing was because the information available is insufficient for the Board to make a decision, the Board has a number of questions to ask him and it was important for the Board to be in a position to know as much about the Applicant’s circumstances as possible before making a decision. The Board said[23]:

“Now, the reason I’ve asked you to come in for a hearing is that there is, for me, insufficient information to make a decision. I have a number of questions that I would like to ask you. It’s important for me to be in a position to know as much about your circumstances as possible before making a decision.” (My emphasis added)

40.It is clear from these opening remarks that at the time of the hearing the Board had not made a decision because it considered the information insufficient for it to do so and the Board wished to ask the Applicant questions to complete the information required for it to make a decision one way or the other. It emphasised the importance of the Applicant answering the Board’s questions and that there were a number of questions to be asked. These opening remarks suggest that there are multiple problems in the Applicant’s evidence. The word “important” also suggests that the problems could not be anything other than serious. The Applicant must have known it was his burden to prove his claim. If the decision-maker said the information was insufficient for it to make a decision, there were multiple serious problems with his case and it was important for him to answer questions to be put to him, it must necessarily mean he could not discharge his burden of proof with the information he had hitherto provided; in other words, that his claim is bound to fail.

41.Pausing here, though being an asylum seeker in foreign soil, the Applicant may be bewildered about the proceedings, he is nevertheless an adult apparently of sound mind, maturity and understanding. He was not freshly pulled out from a refugee shipwreck. He came via Guangzhou by air and then sneaked into Hong Kong under part of a well-designed plan involving at least one illegal smuggling syndicate from overseas. Thereafter, he had lived in Hong Kong in stable and safe environment for almost four years before the oral hearing. Prior to that, he had legal representation in making his claim before the Director. With that background and with what he was informed and repeatedly reminded by the Board, the Applicant clearly knew what he has to show and that what he had shown is not sufficient to discharge his burden of proof.

42.In the circumstances, it would be naïve for him to entertain any belief or even hope that his evidence as it then stood was accepted by the Board and was sufficient to enable him to succeed without making good his evidence by answering the Board’s questions. In other words, he had been told and he ought to have known that his case is bad and bound to fail if he did not answer the Board’s question. That was because there are questions raised about his credibility or about insufficiency of his evidence or inherent probability of his case. In my view, the Applicant had been given sufficient notice that his evidence would not be accepted or his credibility impeached. The notice may be subtle, but the substance is there.

43.Then the Board introduced the interpreter to the Applicant and explained the law relating to the four applicable grounds under the USM. After ascertaining that the Applicant understood and had no questions, the Board continued with summarising the Applicant’s personal information for his confirmation which the Applicant confirmed.

44.Then, the Board moved into areas of concern, namely the two China visas issued in January and November 2014. After about twelve exchanges as to the reasons for applying for the two visas, the Applicant made his first complaint of not feeling very well. Later, he said he was mentally upset and still later he said he had a headache. He insisted that he had told the Board everything he wanted to say in the hearing bundle and requested the Board to discontinue the hearing[24]. The following exchanges took place:

Applicant:	I want to tell you, Madam, I am so sorry, I’m not feeling very well today …
Board:	I can see that.
Applicant:	… and I just want to tell you frankly that everything what I wanted to say to the board is all here in my … (inaudible) …	(My emphasis added)

45.After discussing his headache with the Applicant, the Board reminded him about the importance of answering the Board’s questions. Again, the Applicant refused[25]. The following exchanges took place:

Board:	May I ask you, can you tell me what is the nature of your feeling unwell?
Applicant:	I am not well and I’m mentally also very upset because of my family members and all
Board:	You’re depressed?
Applicant:	Yes
Board;	Have you – how long have you been like this?
Applicant:	eleven months.
Board;	Is it since you were arrested?
Applicant:	Yes.
Board:	Okay. I can understand that. Would you mind if we – I do know that you have – that there is a lot of information there but there’s a couple of things that I’d really like you to clarify for me, if that’s okay with you. Your …
Applicant:	Actually, I have said everything here, in this bundle.
Board:	So do you just want to rely on – you don’t –
Applicant:	Yes. And I fully respect you, my Judge, and I trust you so whatever you think, you just take the decision.
Board:	Can you answer one question? Arif, who you say has threatened you, what is his surname?	(My emphasis added)

In the face of the earlier remarks about insufficient information for the Board to make a decision and that it was important for him to provide answers to a number of questions, the Board’s request that there were a couple of things it “really like [him] to clarify” further conveyed and emphasised the problems in his case and the importance of answering questions to enable the Applicant to make good the inadequacies in his case. However, the Applicant reiterated that he had told the Board everything, declined to answer further questions and told the Board to make its decision on the basis of what was in the hearing bundle before the Board. This is his second refusal to answer questions and request to end the hearing. However, the Board persisted and skilfully carried on. It managed to obtain some answers about the person who had allegedly threatened him, ie Arif and about his promotion.

46.Then the Board asked him questions about the arrest warrant and the related documents produced by him to support his claim of his fear of being arrested for a false case of fighting filed against him by the police for his participation in the protest in January 2014. But, on the face, the arrest warrant and related documents were issued for his arrest in relation to his participation together with others in a number of much more serious charges of attacks on the AL members in a committee meeting of the AL on 25 April 2014. In answer to the Board’s questions, the Applicant admitted he was involved in the attack. When he was asked if he was arrested, he again asserted that he was having a lot of headache and did not want to continue with the hearing[26]. The following exchanges took place:

Board:	Did your people attack the Awami League people?
Applicant:	Yes.
Board:	So were you involved in that attack?
Applicant:	Yes.
Board:	Were you arrested?
Applicant:	I’m just having a lot of headache and I’m not …
Board:	Okay.
Applicant:	… feeling … (inaudible) …
Board:	All right
Applicant:	I have said everything. I’m sorry, I cannot … (inaudible) …
Board:	Okay. All right. So you were there. All right, I will – if you are happy for me to just rely on everything else, you’ve clarified a few things.
Applicant:	Yes, I fully believe what you will do will be the best for me and I trust you. You can take the decision based on these documents.
Board:	Okay. All right, well, I will certainly do my best. All right, well, I hope you feel better and I think we’ll just conclude the hearing now; Okay?
Applicant:	Thank you.	(My emphasis added)

This is the Applicant’s third refusal to answer questions, to reiterate that he had said everything, to insist the Board to end the hearing and to rely on all that he had provided in the hearing bundle. This time, the Board acceded to his request.

47.Ms Tam argues that the purpose and benefit of the oral hearing was frustrated as the Board had not invited the Applicant to comment on those concerns or drawn the Applicant’s attention to the fact that the Board had determinative concerns over his credibility and authenticity of the supporting documents. She said that the Applicant may not be able to appreciate the specific points of concern held by the Board and that those inconsistencies and concerns may not be incapable of intelligible explanation. Ms Tam submits that despite the Board was able to make inquiries regarding certain aspects of the evidence, namely the timing and reason for the Applicant’s application for his passport and China visa and the timing of incident leading to the alleged false charge in June 2014, not all of its concerns were made known to the Applicant. She argues that the Board should have directly put all its concerns one by one to the Applicant and had the Board done so, the Applicant would have provided intelligible answers.

48.The Applicant and the Board have a duty to cooperate with each other to find out as far as possible a solid basis on which to assess the credibility of the Applicant’s case. Whether to answer the Board’s question is not dependent on whether the Applicant considers the question relevant or not, and still less whether he appreciates the inconsistencies in his evidence or the concerns which prompted the Board’s question. His duty is to cooperate and to make joint endeavour with the Board to find out as far as possible a solid basis on which to assess the credibility of his case. By reason of the Board’s opening remarks, the questions and persistence in probing for answers, the Applicant must have known that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.

49.Apart from his burden of proof, the Applicant is under a duty to answer questions which is part of his duty of joint endeavour. Had he cooperated and engaged in further dialogue with the Board, the Board would have told him more about its concerns and would have helped him to resolve them one by one. He may also have asked questions of the Board and be explained the inconsistencies or the relevancy. That the inconsistencies may not be incapable of intelligible explanation does not relieve him of his obligation in performing his part in the joint endeavour. He made the unequivocal choice not to participate further in the oral hearing, told the Board that he had said everything ie he had nothing more to say and asked the Board to make a decision on the basis of the material in the hearing bundle. Despite his resistance, the Board persevered, reminded him there were multiple problems with his case and the importance to answer questions. The Board made three attempts to continue the hearing and obtained some answers. Yet, the Applicant adamantly refused to engage in discussion with the Board after the Board’s third attempt. The objective circumstances made it reasonably clear that he was aware of what he has to show and has already produced or mentioned all that he wants to produce or mention. As was held by the Court of Appeal in ST v Betty Kwan, there was no duty to keep probing or inquiring further from the Applicant. It would be a futile exercise for the Board to put all its concerns one by one to the Applicant who would simply repeat that he had said everything in the papers and ask the Board to make its decision on the basis of the materials in the hearing bundle before the Board.

50.Ms Tam emphasised the Board’s failure to inform the Applicant of all its concerns. Relying on Asia Television Ltd v Communications Authority (No 2)[27], she argues that it is not enough for the Board to discuss just one or two of its concerns with the Applicant. The Applicant was not told about the details of the concerns, the inconsistencies, doubts about the veracity of the documents, and that his claim was bound to fail etc. This argument is badly misconceived on the law and on the fact. Asia Television Ltd is a case about the Communications Authority’s refusal to disclose adverse information in the form of documents received from third parties against the applicant. It was in that context that Kwan JA said that the heart of a fair procedure and hearing is that there should be a reasonable opportunity for a person to know about and respond to adverse materials received by and relied on by the decision-maker. Here, the subject matter is not about disclosure of adverse information received by the Board from third parties. The concerns were raised by the Board from the Applicant’s own evidence. There were credibility issues raised by the gaps and inconsistencies in the Applicant’s evidence. The Board was ready and willing to disclose its concerns to assist the Applicant to perfect his case. It invited the Applicant to an oral hearing, expressed in broad terms its concerns, and invited the Applicant for response. The Applicant refused to cooperate. The Board persisted and hence managed to raise its concerns about some of his evidence, namely the January 2014 and April 2014 incidents and veracity of documents, namely the arrest warrant. It was at that very stage that the Applicant insisted to stop the hearing. It was he who refused to disclose his answers to the Board’s concerns. In the circumstances, it made no sense for the Board to recite all its concerns to the Applicant one by one but to accede to his request to stop the hearing. Joint endeavour is an interactive process. It lies very ill in the Applicant’s mouth to complain about the Board’s breach of the high standard of fairness when it was he who prevented the Board from performing its duty.

51.Ms Tam further argues that the Board never challenged the Applicant’s answers to the Board’s questions but responded saying “yes” and “okay”. The words “okay” and “yes” were respectively uttered by the Board 32 and 4 times. The Applicant said he only came to know about the concerns after receiving and reading the Board’s Decision. These words are often used without any meaning other than to keep a conversation going or to indicate that the message has been received by listener, and not approval of what was said. In the context as they were used in the transcript, they certainly did not carry any sense of approval or agreement by the Board. It is unreal for the Applicant to even suggest that he was led to believe that his answers were accepted and that he only became aware that the Board was troubled by certain factual matters after receiving the Board’s Decision. He had been told by the Board’s opening remarks that the Board was troubled by his evidence and it was important for him to answer the Board’s questions.

52.Ms Tam refers to the following exchanges at the conclusion of the oral hearing and argues that the Applicant was led to the belief that his evidence was accepted:

Applicant:	I have said everything. I’m sorry, I cannot …
Board:	Okay. All right. So you were there. All right, I will – if you are happy for me to just rely on everything else, you’ve clarified a few things.
Applicant:	Yes, I fully believe what you will do will be the best for me and I trust you. You can take the decision based on these documents.
Board:	Okay. All right, well, I will certainly do my best. All right, well, I hope you feel better and I think we’ll just conclude the hearing now; okay?

In the context of the transcript, I think the Board’s concluding words are just courteous remarks to end the hearing and far from expressing any acceptance of the evidence given by the Applicant as facts proved. In the context of all that had transpired in the oral hearing, it would be unreal for the Applicant to argue that he believed he had dealt with all the problems raised by his claim and he had resolved all the Board’s concerns.

53.Ms Tam argues that the Applicant was not an unwilling claimant and he was only prevented from participating because of his headache. According to the Board, a postponement had been discussed but the Applicant reiterated that he wanted to rely on the information already available. I note that there was no mention of an adjournment in the transcript whether by the Board or the Applicant. Having regard to the type of recording and its quality, it could have been lost in the recording for one or some usual and innocuous reasons familiar to the Court. Without making any assumption, even if that had not been discussed, the fact remains that the Applicant reiterated many times that he had said all that he wanted to say and repeatedly insisted the Board to make a decision on the basis of the materials in the hearing bundle. He did not ask for an adjournment and to resume after his headache was over. He insisted to end the hearing and insisted the Board to make a decision on the basis of the materials in the hearing bundle. He had demonstrated no intention to perform his part of joint endeavour by answering questions. There was no purpose to be served by probing further in an adjourned hearing.

54.As Lord Mustill said, the principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. The Applicant is under a duty to cooperate with the Board and work with the common goal to find out as far as possible a solid basis on which to assess the credibility of his case for protection. Neither party may sit back and leave to the other party to prove the claimant’s claim. The Board had done its part. The Applicant could not refuse to perform his part in the joint endeavour and then complain about unfairness when the Decision turn out to be against him.

55.Although the Applicant’s attention had not been drawn to the details of each and every one of the Board’s concerns, that was because of his insistence to end the hearing. He knew what he was required to show in order to succeed. He said he had said everything he wanted to say in the hearing bundle and asked the Board to make a decision on the basis of the material before the Board. The Board had reminded him the need to answer questions and had made three attempts to continue the hearing. In the circumstances, there was no duty on the Board to keep on probing for answers in respect of each of its concerns. Though the Applicant had not been warned in specific terms that his claim was bound to fail, if he did not continue to participate in the oral hearing, that is not what is required by the high standard of fairness. He had indeed been given notice by the Board’s opening remarks that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached; been reminded the need to answer questions; and been repeatedly probed for answers. On the factual circumstances of this case, that notice is even sufficient to amount to a warning that his claim was bound to fail if he did not participate in the oral hearing. He had been given reasonable opportunity to make worthwhile or effective representation to address the concerns which are determinative in the Board’s decision. He did not take up the opportunity. This Court is therefore satisfied that the Board has not failed in observing the high standard of fairness when making its Decision.

CONCLUSION

56.For the above reasons, the Applicant’s application for judicial review is refused. I make no order as to costs, save that the Applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Ms Isabel Tam, instructed by Daly & Associates, for the Applicant

Ms Leona Cheung and Ms Liesl Lai, of the Department of Justice for the Interested Party