Ko Kang Suk v. Torture Claims Appeal Board

HCAL 953/2023

[2023] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 953 OF 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

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

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of South Korea who last arrived in Hong Kong on 28 August 2018 as a visitor with permission to remain as such up to 26 November 2018 when he did not depart and instead overstayed, and some 6 months later on 29 May 2019 when he attempted to depart Hong Kong that he was arrested for breaching the conditions of stay and was referred to the Immigration Department for investigation, and thereafter when he was required to leave Hong Kong on or before 20 June 2019, he failed to do so and was again arrested by police on 18 August 2020 when he then raised a non-refoulement claim on the basis that if he returned to South Korea he would be harmed or killed by his uncle over some inheritance disputes within the family. He was then being remanded at the Lai Chi Kok Reception Centre.  

2.The Applicant was born and raised in Seoul, South Korea into a wealthy and reputable family where his grandfather owned a large number of lands and properties throughout the country and which were distributed to his 3 sons prior to his passing in 2006, with the bulk of the estate to his 2 elder sons, with the eldest son being a reputable surgeon, and the Applicant’s father as the second son being also a successful fund manager, and that both had assisted in managing those properties, but with a much smaller share to the youngest son (“Younger Uncle”) who did not have a good relationship with the family and was involved in some undesirable or illegitimate business including running illegal underground gambling houses much to the displease of the grandfather.

3.The Applicant as the only son of his parents was sent to the United States for university where he obtained his Master of Business Administration in 2010, and thereafter he worked as a financial analyst at the Barclay Bank in New York, and was also a managing member of various companies in USA and Switzerland.

4.In 2010 while working in the US, the Applicant was informed by his mother that his father was having a fight with the Younger Uncle over ownership of those properties inherited from his grandfather’s estate, and in order to settle the dispute, his father added the younger son of Younger Uncle as a joint owner with the Applicant of some land near the Jeju Airport.

5.In mid-2015 the Applicant was asked by his father to return to South Korea for further distributions of his grandfather’s estate to him but which he should keep it quiet to avoid further disputes from Younger Uncle, and after completing the transactions the Applicant just returned to the US.

6.Later in the same year the Applicant was told by his mother that Younger Uncle had subsequently learnt about those latest transfers of further properties to the Applicant and raised big disputes about them by filing some civil claims in court against the Applicant for frauds and embezzlement of the family assets, and hence his mother advised him to stay away from South Korea to avoid trouble.

7.Between 2015 and 2018 the Applicant flew various business trips between the US and the Philippines, and did not return to South Korea as advised by his mother, and as the Younger Uncle had also threatened to kill him if he dared to return to South Korea.

8.One day in April 2018 while on a business trip to Manila the Applicant was abducted by some unknown men and was taken to an empty house in the Bulacan Area where he was beaten severely that he suffered cuts and bruises all over his body before his was eventually released. During the ordeal the Applicant was never told by those men why he was abducted and beaten, but he suspected that Younger Uncle was behind the abduction as a warning not to return to South Korea.

9.Upon his release the Applicant reported the matter to the local police who took a statement from him but found no sufficient evidence to enable them to identify those men for arrest.

10.After the ordeal the Applicant left Manila in May 2018 and came to Hong Kong for business, during which he hired several bodyguards to protect him from any further danger, during which he also took various trips to Macau.

11.In his last trip to Hong Kong on 28 August 2018, the Applicant was allowed to remain as a visitor for 3 months up to 26 November 2018, but whereupon he did not depart as he believed that his business partner in Hong Kong had made arrangements for his visiting visa to be extended, during which his mother had visited him in March 2019 and told him that Younger Uncle had continued with his disputes with his father and the court cases against the Applicant whom he also threatened to kill if he were to return to South Korea, and hence his mother warned him not to return to South Korea.                   

12.On 29 May 2019 the Applicant intended to leave Hong Kong for Macau but was stopped by the Immigration Department for having previously overstayed in Hong Kong, and upon investigation he was eventually required to leave Hong Kong on or before 20 June 2019.

13.However, before he was able to leave, the Applicant was informed by his mother that his passport had been deactivated by the Korean authorities due to his long absence from the country and his failure to return to deal with the police investigation of those court cases filed by Younger Uncle against him for stealing and embezzling his grandfather’s estate, and that he would also face a real risk of being killed by men sent by Younger Uncle should he return to South Korea, and so the Applicant was afraid to return to South Korea and failed to depart Hong Kong as required, for which he was subsequently arrested by police on 18 August 2020.

14.After he was referred to the Immigration Department for investigation, the Applicant raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 October 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”) while being remanded at the Lai Chi Kok Reception Centre.             

15.By a Notice of Decision dated 19 January 2021 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”).

16.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of being harmed or killed by his Younger Uncle upon his return to South Korea as low due to the absence of any past ill-treatment from him, that there is no evidence that Younger Uncle was behind his alleged abduction in the Philippines other than his own speculation or that Younger Uncle had any real intention to seriously harm or kill him, that in any event his problems with Younger Uncle were private monetary disputes within the family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in South Korea with a large population of 51 million people spread across a vast territory of more than 99,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Busan or Daegu where it would be difficult if not impossible for Younger Uncle to locate him.

17.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the oral hearing scheduled on 9 August 2022 before the Board or thereafter to give any written explanation for his non-attendance or to request for another oral hearing, and that the Adjudicator proceeded to deal with his appeal in his absence and on paper, and on 28 April 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

18.In its decision the Board found that the Applicant had failed to attend the scheduled hearing without any explanation or request for another hearing, that he was not in detention during the relevant periods of his appeal and would have received the notice of hearing, that if he had indeed never received it due to his change of address then he had only himself to blame for his failure to so advise the Board of such change, that had he attended the hearing then the Board would have asked him various questions about his account of events that had caused concerns over the credibility of his claim but had remained unanswered due to his failure to attend the hearing, that despite claiming to have come from a wealthy family but he failed to provide any documentary evidence in support of his claim essentially arising from some inheritance dispute with his uncle which should be readily available but their absence had completely undermined the credibility of his claim, and concluded that the Applicant had failed to establish that there are substantial grounds to support his claim that he will face any real risk of harm as alleged upon his return to South Korea that his claim for non-refoulement protection failed on all applicable grounds.    

19.On 16 June 2023 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, and at the hearing of his application he was given further 14 days to submit his proposed grounds for the challenge of the Board’s decision, which he subsequently did by a written submission dated 17 August 2023 with various factual disputes and complaints of the decision which can be essentially summarized as follows:

(1) That the Board was wrong and/or unfair and/or unreasonable to find that the Applicant had failed to attend the scheduled hearing or to provide any explanation for his failure or to request for another hearing when in fact that the Applicant had never been properly served or received the notice of hearing or the subsequent request for him to explain for his absence or to ask for another hearing from the Board;

(2) That it was procedurally unfair in the circumstances for the Board to proceed to determine the Applicant’s appeal without scheduling another oral hearing given the earlier delays caused to his appeal and his extended periods under the police’s remand or detention and instead proceeded to determine his appeal in his absence; and

(3) That the Board erred in law in rejecting the Applicant’s claim or appeal on credibility on the basis that he failed to attend the hearing to enable the Board to assess the credibility of his claim;

20.I should note that in his written submission, the Applicant had also put forward various factual accounts of what happened to him during the material periods of his appeal but which had never been presented to the Board, and as such I do not propose to consider them at all for the purpose of the present application, but given the fact that the Board rejected his claim and appeal essentially on his failure to attend the hearing and to answer questions raised of his claim or to explain the absence of any documentation in support of his claim, it would be relevant to revisit the Board’s decision in more details and to scrutinize the basis for such findings of the Board and its reasons for the determination, but starting first with the relevant provisions under Section 15 of Schedule 1A of the Immigration Ordinance for the determination of a claim in the absence of the applicant, which the Board did allude to in [36] of its decision as follows:

“15. Hearing in a party’s absence

(1)  If a party to an appeal fails to attend a hearing, either in person or by a legal representative, the Appeal Board, on proof that the party has been served a notice of the hearing under section 13 of this Schedule, may proceed to hear the appeal in the absence of the party and, subject to subsections (2) and (3), determine the appeal.

(2)  Before proceeding to determine an appeal after hearing the appeal in the absence of a party, the Appeal Board must –

(a)  give the party written notice of the Board’s intention to do so; and

(b)  state that the party may submit to the Board, within 7 days after the notice is given, a written explanation of the party’s failure to attend the hearing together with any documentary evidence supporting the explanation.   

(3)  If the Appeal Board –

(a)  has not received the party’s written explanation together with supporting documentary evidence (if any) within the period specified in subsection (2)(b); or

(b)  is not satisfied with the party’s written explanation or supporting documentary evidence,

The Board may determine the appeal by making a decision under section 23 (1) of this Schedule despite the party’s absence at the hearing.

(4)  If the Appeal Board is satisfied, on the basis of the party’s written explanation and supporting documentary evidence (if any) submitted under subsection (2)(b), that the failure to attend was due to reasonable cause, the Board may fix a date, time and place for hearing the appeal.”

21.On this basis the Board proceeded to make the following findings as to the Applicant’s failure to attend the hearing or to subsequently provide any written explanation for his failure to attend as follows:

“4. On 19 January 2021 the Director of Immigration (“the Director”) rejected the Appellant’s claim. The Appellant lodged an appeal/a petition (“appeal”) to the Board against the rejection of his claim.

5. By letter dated 10 December 2021 the Immigration Department advised the Board that according to the bail conditions imposed by the court in granting bail to the Appellant in criminal proceedings on which he had been incarcerated on remand at the time of his application, he was required to reside at a specified address. A notice of a direction hearing held on 14 January 2022, which was attended by the Appellant, was sent to him at that same address.

6. Following that directions hearing, a hearing was set for the matter on 9 March 2022, however the hearing had to be adjourned because of the Covid-19 pandemic. Subsequent to the adjournment of that hearing, the previous Adjudicator finished his term on the Board, and the appeal was reconstituted.

7. On 9 June 2022 the Board sent to the Appellant a Notice of Hearing advising that it had decided to conduct a hearing on 9 August 2022. The Notice of Hearing, which was sent to the address provided to the Board, stated that if he failed to attend the hearing either in person or by a legal representative, the Board on proof that he has been served the Notice of Hearing may proceed to hear the appeal in his absence.

8. The Board was advised by the Department of Immigration on 28 July 2022 that the police had notified them that the Appellant had changed his address. The Appellant failed to attend the hearing on 9 August 2022. On that same date the Board sent him a letter, this time to the new address provided by the Immigration Department, noting that he had failed to attend and giving notice of the Board’s intention to determine the appeal in his absence. He was advised that he should submit to the Board a written explanation of his failure to attend the hearing together with any supporting documentation, within 7 days after the notice was given, and that if he failed to provide the explanation or if it was not satisfactory, the Board would proceed to determine the appeal/petition.

9. The Appellant did not respond to the letter sent to him on 9 June 2022, and has provided no explanation of his failure to attend the hearing. Accordingly, in accordance with the provisions of section 15 of Schedule 1A of the Ordinance, as discussed in more detail below, I am proceeding to determine the appeal on the material before me.”   

22.However, before proceeding to determine the appeal in the Applicant’s absence as it so stated above, the Board did, quite rightly so in my view, first try to ascertain the Applicant’s whereabouts during the material periods before and after he lodged his appeal to the Board by making further enquiries with the relevant departments as follows:

“29. The Appellant is obliged under the Ordinance to notify the Director and the Board (and the Board under the Petition Guide) of his address and of any changes to his address. Moreover, the Courts of Hong Kong have repeatedly stated that it is the duty of an appellant to notify an address at which correspondence or notices can come to the party’s attention in a timely manner, and that the consequences of failing to provide an effective address are to be borne by an appellant.

30. In this case, the Appellant was in Lai Chi Kok Reception Centre at the time of the Director’s decision and the lodgment of his appeal. As it was not clear from the documents before me whether he had been returned to detention at the time of the hearing, and when the various notices were sent to him, I directed that the Board seek from both Corrective Services and Immigration Departments the dates on which he had been incarcerated in the custody of either department.

31. By letter dated 29 March 2023 Corrective Services Department advised that the Appellant had been incarcerated from 4 August 2020 until 4 May 2021, and from 7 October 2022 until the present time. He had been released on bail from 4 May 2021 until 7 October 2022.

32. Further, by letter dated 6 April 2023, the Immigration Department advised that the Appellant had never been held in immigration detention.

33. On the basis of this information, it is clear that the Appellant was not in detention at any of the relevant times for the present appeal, and I am satisfied that the two letters were sent to him at the addresses provided to the Board at the relevant times. I am also satisfied that if his failure to advise the Board of his change of address was in any way responsible for his failure to attend the hearing, he is responsible for that consequence.”  

23.It is therefore clear that the Applicant was neither in police’s remand nor detention in the Correctional Services or the Immigration Department between 4 May 2021 and 7 October 2022, during which he did earlier attend a direction hearing on 14 January 2022 before the Board after notice was sent to him at his specified address provided to the police under his bail condition, but that he subsequently failed to attend the appeal hearing on 9 August 2022 when the notice was sent on 9 June 2022 to the same specified address, and when it was later on 28 July 2022 that the Board was informed by the Immigration Department that the Applicant had moved to a new address, and upon his failure to attend the scheduled hearing on 9 August 2022 that the Board on the same day sent a letter to the Applicant at his new address requiring him to provide a written explanation for his non-attendance on 9 August 2022 and that the Board may proceed to determine his appeal in his absence, but to which the Applicant failed to respond.

24.In the circumstances, it is clear to me that the Board did fully and properly comply with Section 15 of Schedule 1A referred to above before proceeding to determine the Applicant’s appeal in his absence, and as such I do not find the Applicant’s complaints under Grounds (1) and (2) reasonably arguable for his intended challenge.   

25.As for the Applicant’s remaining complaint under Ground (3) that the Board erred in rejecting the credibility of his claim due to his failure to attend the appeal hearing, it would be relevant to first note that the Adjudicator did properly identify the basis of his claim as stated in the decision:

“39. In summary, the Appellant’s claim is that he fears return to Korea because he would be killed upon returning by his uncle because of a dispute over inheritance between his father and his uncle. He claimed that his uncle is involved with gangsters because he has underground gambling businesses in Korea, and is also involved with corrupt police. He claims that his grandfather died in 2006 and distributed the estate between his three sons. He said that his father’s younger brother inherited ‘some of the less valued properties’, while he himself inherited property valued at more than USD 25 million.

40. The Appellant claimed that his mother told him in June 2019 that the Korean Consulate had deactivated his passport because he had not returned to South Korea for a long time and because had failed to return to South Korea to cooperate with a police investigation into lawsuits commenced against him by his uncle. He stated at the time of his application that he could produce documents to support his claim once he was released from detention.  He has not done so, although as noted above he was out of detention from 4 May 2021 until 7 October 2022.”

26.The Adjudicator also stated that had the Applicant attended the hearing, he would have been asked the following questions to test the credibility of his claim at [41]:

“Had the Appellant attended the hearing, I would have asked him:

- Why, given his own claims that his parents, with whom he has remained in contact, are very wealthy, and he himself has inherited some USD25 million, and owns and operates two international finance companies, he was unable to access proper representation in relation to his immigration status in Hong Kong, his claimed court cases in Korea, or the present application;

- Why he has failed to produce documents to support his case, such as the claimed correspondence from the Korean Embassy, documents relating to his court cases in Korea, and evidence of his claimed inheritances in Korea which are at the centre of his claims. He ahs provided no explanation as to why copies of the relevant documents could not have been obtained by his parents, or his own or their legal representatives;

- Why his uncle would have organized for him to be kidnapped in the Philippines, only to be released unharmed after a few hours, if he seriously intended to kill him;

- Why he believed that there was a real risk that his uncle would kill him if he were to return to Korea, given that his father, who is also claimed to be involved in the dispute has not been killed by him; and

- Why, if he genuinely believed that his uncle posed a threat to his safety or even to his life, he would not have taken steps to ensure that he had a valid passport and valid permission to reside in Hong Kong, or indeed elsewhere, in order to avoid his uncle until the legal issues regarding his inheritance were resolved; and

- Why he has produced no evidence in support of his claims regarding the dispute in Korea, such as supporting statements from his mother, his father, the lawyers representing his family in the claimed court proceedings, or anyone else.”  

27.The Adjudicator also explained why it would be difficult to assess the general credibility of the Applicant’s claim when he failed to attend the hearing at [44]:

“It is difficult to assess the general credibility of the claims made by the Appellant when he does not attend the hearing. I can only proceed to make the assessment based on what he has said in his written statements and when he was interviewed about his claims. As noted above, he was represented by DLS and assisted by an interpreter in presenting those claims, and he claims to come from a very wealthy family with whom he has remained in contact, yet is claims remain unsupported by evidence that should clearly have been readily available to him had the claims been true. His failure to attend the hearing scheduled for him by the Board to answer questions about his claims leaves these concerns about the credibility of his claims in general unanswered.”

28.The Board then proceeded to make the following findings against the credibility of the Applicant’s claim:

“45. The Court of Final Appeal’s wording in Ubamaka takes account of the fact that, in expulsion cases, the assessment to be made is of the risk that the claimed ill-treatment may occur in the future. Since a possible future event is not provable, the decision-maker can only make a prognosis based on the material facts found. The BOR 3 jurisprudence does not require certainty that the alleged ill-treatment will actually occur, and it has been found that a ‘real risk’ will be sufficient; however, it is necessary for the Appellant to establish that there are ‘substantial grounds’ which enable the conclusion that he will face a real risk of ill-treatment if refouled.

46. As noted above, the Appellant’s claims about the inheritance dispute with his uncle are unsupported by documentation which should be readily available if those claims were true. He has variously claimed that he was unable to obtain the documents because he was incarcerated, and then, after his release, that the documents were available only in Korea and he was unable to travel there to collect them. He has never offered any explanation as to why any supporting documentation could not be provided by his father, whom he claims is involved in the dispute with his uncle, or by his mother, whom he claimed has visited him previously in Hong Kong. He has provided no explanation whatsoever as to why relevant court documents could not be obtained from the court, or from the lawyers who presumably would be representing him and his father if such legal proceedings actually existed. He has not explained why he has failed to produce the evidence of his claimed passport problems which he has previously claimed was actually on his phone.

47. Given the nature of the Appellant’s claims about the dispute with his uncle, I consider that his failure to produce any supporting documentation completely undermines the credibility of those claims. His failure to attend the hearing to answer questions about his claims and to explain the absence of supporting documentation leads me to find that he has failed to establish that he has any real dispute with his uncle in Korea, or that he faces serious harm or death at the hands of his uncle if he returns to the country.

48. As noted above, the Appellant’s failure to attend the hearing meant that I was unable to put my concerns about his claims to him and seek his response. In the circumstances, I find that he has failed to establish any basis for his claim that his uncle will seriously harm or even kill him should she return to Korea.

49. Given my concerns about the Appellant’s failure to substantiate hi claims, I find that he has not established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment as claimed if he returned to Korea. He has failed to establish any factual basis for his claim that his uncle has threatened or harmed him or his father in the past, and has offered no evidence in support of his claim that he would do so should he return to Korea.”      

29.Essentially the Board rejected the Applicant’s claim due to his failure to attend the hearing that it was unable to put its concerns about his claim to him or to seek his response or to ask him those questions regarding his claim as referred to above, and that his credibility was further undermined by his failure to produce any supporting documentary evidence despite his claimed wealth and support from his parents that it concluded that he had failed to establish the factual basis that he faces any real risk of being harmed or killed by his uncle over their inheritance dispute.

30.While the Board was certainly entitled under Section 37ZD (1) of the Immigration Ordinance to take into account as damaging his credibility such behaviour of the Applicant, it seems to me reasonably arguable that the Board had failed to make any or proper assessment of the primary facts alleged by the Applicant for his non-refoulement claim as to threats or risk of being harmed or killed by his uncle over their inheritance dispute, or to make proper findings on them by looking at the Applicant’s case in the round on the basis of the materials provided earlier to the Director and were available before the Board in the hearing bundle of documents supplied by the Director for the appeal and were alluded to by the Board in [10] of its decision, of which have been held to be relevant by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526 when Cheung CJHC (as he then was) in giving judgment of the Court elaborated at [30] as to the necessity for a decision-maker to make findings as to the primary facts of an applicant’s claim:

“… In deciding whether there are ‘substantial grounds for believing’ that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact. To take the present case as an example, one needs to decide whether the applicant’s story about what happened to him and his friend, C, back in Pakistan was true or not. In relation to the primary facts comprising the applicant’s story, the Director and adjudicator had to make findings of fact. The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).”

31.In Re Hidayah [2018] HKCA 595, where the non-refoulement claimant failed to appear at the appeal hearing before the Board, in its decision the Board stated that it was unable to determine the credibility of her assertions or whether there was a real risk of harm, and dismissed her appeal accordingly, the Court of Appeal in allowing the appeal and giving leave to apply for judicial review of the Board’s decision stated at [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.”

32.In MS v Torture Claims Appeal Board & Anor [2021] HKCA 979, where the Board similarly rejected the applicant’s claim due to his low general credibility and the lack of opportunity to test his credibility through oral examination, the Court of Appeal in allowing the appeal also stated as follows:

“22. As can be seen from the extracts from the Board’s decision set out in [14] above, its reasoning was essentially as follows. The applicant’s general credibility was undermined by his behaviour throughout the conduct of his non-refoulement claim. His claim primarily depended on his factual assertions including hearsay evidence. The applicant’s credibility was therefore important. Because the applicant did not give evidence at the appeal, the Board was unable to assess his credibility and hence the veracity of his claim. The applicant therefore failed to prove his claim even in the low standard applicable.

23. The judge, in [22] of his decision, appears to have put the applicant’s general credibility and the damage thereto under section 37ZD(1) at the forefront, without distinguishing between a dent to a claimant’s credibility based on the section 37ZD(1) grounds and the assessment of the primary facts alleged by the claimant for his non-refoulement claim.

24. With great respect, it seems to us reasonably arguable that the Board erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination, that whilst section 37ZD of the Immigration Ordinance (Cap 115) provides that certain behaviour may be taken into account as damaging the applicant’s credibility, those matters are not necessarily the starting point of a decision on credibility, and that the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].

33.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on his Ground (3) essentially in that Board had erred in law in rejecting the credibility of his claim without making any or proper findings as to the primary facts of his non-refoulement claim, or if it did that it failed to give any or sufficient reasons for dismissing his appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  

34.Accordingly, I grant leave to the Applicant to do so on the ground as stated above, and that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.

Dated the 21^st day of September 2023

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