Ms and Others v. Torture Claims Appeal Board

HCAL 1428/2020

[2026] HKCFI 4275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1428 OF 2020

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 counsel for the 3rd Applicant and by the 1st and 2nd Applicants (collectively “the Applicants”) in open court;

Order by Deputy High Court Judge Bruno Chan:

(1)  Leave for the Applicants to apply for Judicial Review be granted;

(2)  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

(3)  The Applicants 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;

(4)  Costs be in the cause; and

(5)  The 3^rd Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.The 1^st and 2^nd Applicants are husband and wife of Indian nationality in their 30s who arrived in Hong Kong separately on different dates and under different circumstances, and subsequently raised their non-refoulement claims to the Immigration Department for protection on the bases that if they returned to India they would be harmed or killed by the wife’s paternal uncle due to some property dispute within her family and/or by the her father and family who disapproved of their relationship and marriage, and upon the wife subsequently giving birth to their son, the 3^rd Applicant on 18 July 2018 in Hong Kong, they also raised a non-refoulement claim for him on the same bases. They have all been released on recognizance pending the determination of their claims.

2.The husband, the 1^st Applicant, was born and raised as a Ravidasia Sikh in Mullan Pur, Tehsil Jagraon District, Ludhiana, Punjab, India. After leaving school he worked in various jobs as a farmer, a mechanic, a driver and a construction worker to make his living in his home district.

3.While working as a construction worker in Qatar in 2012, he came to befriend the 2^nd Applicant through social media on the internet who was from a neighboring village in his home district in India, but whose family happened to be having serious conflicts with her paternal uncle Namdev Singh over some property dispute within the family which had led to some vicious attacks by Namdev Singh and his followers on her family members, including her father who suffered serious injuries during one such attack in 2014, but that the local police failed to do anything against Namdev Singh due to his political influence as a senior member of the political party Bharatiya Janata Party (“BJP”).

4.Later in the same year the 1^st Applicant returned from Qatar to his home village, and so he and the 2^nd Applicant met for the first time one day in May 2014 in a restaurant in Jagraon City where the 2^nd Applicant was then taking a computer course, and from thence they started dating, albeit keeping it discreet given that they are from different caste as the 2^nd Applicant’s family were Mazhbi Sikh that they feared that their relationship would not be approved by their families.

5.One day in late 2014 when they as usual met in Jagraon City outside the Nanak Sarkalera Sikh Temple, but were seen by Namdev Singh who somehow passed that information to the 2^nd Applicant’s family, and on the same evening when she returned home, she was confronted by her parents for the background of the 1^st Applicant, and when they realized that he was from a different caste, they were not happy and told the 2^nd Applicant to put an end to the relationship.

6.Shortly thereafter the 1^st Applicant was confronted by another uncle of the 2^nd Applicant by the name of Raju who together with his followers attacked him with hockey sticks inside a warehouse in Jagraon City that he suffered cuts and bruises all over the body until they were restrained by others, and that he was subsequently taken to a local hospital for medical treatments.

7.Due to the ongoing pressure and threats from her family, the 1^st and 2^nd Applicants decided to elope to Baroda City in Gujrat State, but during their stop over in Dabwali City, they were intercepted by her father and some police officers who accused the 1^st Applicant of abducting the 2^nd Applicant, and brought him back to the Jagraon police station where he was detained and beaten, and it was only the following day that he was bailed out by his father together with the village head, and was subsequently taken to the hospital for medical treatments.

8.Upon his discharge from hospital, the 1^st Applicant then rushed to check on the 2^nd Applicant in her home village when both of them were attacked by Raju and other members of her family that they suffered cuts and bruises all over the body.

9.Upon escaping back to his home village, the 1^st Applicant was later arrested by police due to some false illegal drugs charges being made against him by Raju, and for which he was detained and interrogated by police for 6 days during which he was beaten with wooden sticks and leather belts, and was only released on bail on the 7^th day after his father had paid bribes to the police.

10.To avoid such further threats and harassments, the 1^st Applicant decided to leave the country to wait for the threats to die down, and so in early 2015 he departed for Dubai where he found works in the construction sites, while the 2^nd Applicant later in April of the same year also left the country for Hong Kong to work as a foreign domestic helper.

11.Due to the 1^st Applicant’s subsequent failure to report on his bail, his father and younger brother were then arrested by police sometime in May 2016 for interrogations, during which they were beaten for information as to the whereabouts of the 1^st Applicant, and although his father was later released due to his heart problem, his younger brother remained being detained and tortured that he collapsed and lost consciousness on the 6^th day, and was then rushed to the hospital where he was later pronounced dead.

12.Upon learning about his brother’s death, the 1^st Applicant then rushed back to India, whereupon the 2^nd Applicant also returned from Hong Kong to meet up with him when they decided to get married notwithstanding the many objections, and so on 22 June 2016 they secretly went to Baroda City where they married in a Sikh temple, and later on 28 July 2016 they also registered their marriage in Jagraon City.

13.After the marriage the 1^st Applicant returned to Dubai to continue with his job, while the 2^nd Applicant subsequently returned to her home village without informing anyone about her marriage, but soon the property dispute between her family and her uncle Namdev Singh escalated when he made an attempt to kill her father, and after the 2^nd Applicant had made a report to the police, Namdev Singh became furious and came to her home to threaten her, during which he attacked her and tried to rape her, but the 2^nd Applicant put up a fierce struggle and managed to make her escape and went into hiding.

14.On the following day Namdev Singh however returned to again attack the 2^nd Applicant, and was able to rape her after having knocked her out, and later when she came to her sense, the 2^nd Applicant then admitted herself to a hospital for medical treatments.

15.However, upon subsequently learnt of the rape, her family in particularly her father felt shameful about her and disowned her from the family, and to avoid further threats from Namdev Singh, the 2^nd Applicant on 25 November 2016 left the country again for Hong Kong to resume working as a foreign domestic helper.

16.In June 2017 the 1^st Applicant returned from Dubai to India, and in order to join his wife in Hong Kong, he then shortly thereafter in July 2017 departed for China, and from there he later sneaked into Hong Kong to join the 2^nd Applicant, and after her employment was subsequently terminated that she overstayed in Hong Kong, and subsequently they both surrendered to the Immigration Department and jointly raised their non-refoulement claims for protection, and upon the birth of their son on 18 July 2018 they also raised a non-refoulement claim for him on the same bases, and for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 1 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

17.By a Notice of Decision dated 28 December 2018 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

18.In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and found no substantial grounds for believing that there will be any real risk of harm from their enemies upon their return to India due to the low intensity and frequency of past ill-treatment from Namdev Singh or the 2^nd Applicant’s family, that there is no evidence of any real intention of any of them to seriously harm or kill them, that in any event these were private and personal disputes within their families only without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the 1^st and 2^nd Applicants as able-bodied adults with working experience to move with the 3^rd Applicant to other areas of the country away from their home district in large cities such as Mumbai or New Delhi where it would be difficult if not impossible for their enemies to locate them.

19.On 9 January 2019 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 16 January 2020 before the Board during which both A1 and A2 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 29 June 2020 their appeals were dismissed by the Board which also confirmed the Director’s decision.

20.In its decision the Board found material inconsistencies and discrepancies in the evidence of both the 1^st and 2^nd Applicants as to their account of events prior to their departure of India and also between their evidence as to details of those events that it was not satisfied as to any of the central aspects of their claims or that they will face any harm from the family of the 2^nd Applicant on account of being in an inter-caste marriage or on account of any land or jewelry dispute within her family that the Applicants had failed to show that they would face any real risk of harm upon their return to India for any proscribed reason, that the issue of internal relocation therefore did not arise for consideration, and concluded that the claims of all 3 Applicants for non-refoulement protection failed on all applicable grounds.

21.On 9 July 2020 the 1^st Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and for which he then on 2 November 2020 obtained leave to include his wife and son as the 2^nd and 3^rd Applicants in the application, and upon their son subsequently being granted Legal Aid with legal representation, they put forward the following grounds as amended for their intended challenge:

(1)  Erroneous credibility assessment in that the Board treated the determination as some memory test or a granular analysis of issues not relevant or just peripheral matters contrary to established principles, and dismissed the Applicants’ claims because there were some inconsistencies or discrepancies between their oral testimonies at the hearing and those in their NCF on matters at best peripheral to the central core of their claims;

(2)  That the Board misdirected itself in the assessment of evidence and/or adopted an erroneous approach in its fact-finding exercise as to the inter‑caste marriage between the 1^st and 2^nd Applicants;

(3)  That the Board failed to apply the principles laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 in its assessment and determination of the claim of the 3^rd Applicant as a minor separately from the claims of his parents.

22.The first 2 grounds are essentially complaints and criticisms of the Board’s assessments and determination of the credibility of the claims of the 1^st and 2^nd Applicants, and can therefore be conveniently considered together, but it would be relevant to first set out the established applicable principles for credibility assessment of non-refoulement claims.

Relevant Applicable Principles for Assessment of Claims

23.Firstly, it is well established principles that the burden of proof of the claim lies on the applicant, while the duty to ascertain and evaluate all the relevant facts and evidence is shared between him and the decision-maker, that given the special nature of this type of cases and the circumstances that the applicant is said to have fled his country that the requirement of evidence should not be too strictly applied, that the fact-finding process will not be complete until a wide range of circumstances has been ascertained, that taking isolated incidences out of context may be misleading and that the cumulative effect of the applicant’s experience must be taken into account and to be looked at in the round objectively and impartially, and that if the applicant’s account appears credible, the decision-maker should consider giving his claim the benefit of the doubt, as provided by the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued in February 2019, in setting out the applicable principles and methods for assessing and determining the credibility of the individual’s claim at paras 196 to 202.

24.These principles were affirmed and adopted by our Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [21] of the judgment, and of which Li CJ went on to elaborate as follows that all relevant matters of the applicant’s case should be considered and to comply with high standards of fairness in doing so:

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

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

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

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

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

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

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

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously requires clarification or elaboration so that they can be addressed by the person concerned. For example, in the present case, the respondent’s latter of 5 March 1999 stated that “proof documents” were available but could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.

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

25.The importance that all relevant matters should be taken into account and to be looked at in the round objectively and impartially by the decision-maker on asylum cases and claims of this nature, when the issues are questions not of hard fact but of evaluation of an administrating process by the Tribunals, or the Appeal Board in Hong Kong, which, though empowered by statute and bound to observe the principles of justice, is not a court of law, as was so emphasized by the UK Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, 25 January 2000, when Sedley LJ elaborated on such evaluating process as follows:

“15. The issue for a decision-maker under the Convention (whether the decision-maker is a Home Office official, a special adjudicator or the Immigration Appeal Tribunal) are questions not of hard fact but of evaluation: does the applicant have a well-founded fear of persecution for a Convention reason? Is that why he is here? If so, is he nevertheless able to find safety elsewhere in his home country? Into all of these, of course, a mass of factual questions enters: what has happened to the applicant? What happens to others like him or her? Is it feasible for the applicant to live there? Inseparable from these are questions of evaluation: did what happened to the applicant amount to persecution? If so, what was the reason for it? Does what has been happening to others shed light on the applicant’s fear? Is the home situation now better or worse? How safe are safer places? Is it unduly harsh to expect this applicant to survive in a new and strange place? What matters throughout is that the applicant’s autobiographical account is only part of the picture. People who have not yet suffered actual persecution (one thinks of many Jews who fled Nazi Germany just in time) may have a very well-founded fear of persecution should they remain. People who have suffered appalling persecution may for one reason or another not come within the protection of the Convention.

16. The civil standard of proof, which treats anything which probably happened as having definitely happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones. It is true that in general legal process partitions its material so as to segregate past events and apply the civil standard of proof to them: so that liability for negligence will depend on a probabilistic conclusion as to what happened. But this is by no means the whole process of reasoning. In a negligence case, for example, the question will arise whether what happened was reasonably foreseeable. There is no rational means of determining this on a balance of probabilities: the court will consider the evidence, including its findings as to past facts, and answer the question as posed. More importantly, and more relevantly, a civil judge will not make a discrete assessment of the probable veracity of each item of the evidence: he or she will reach a conclusion on the probable factuality of an alleged event by evaluating all the evidence about it for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end-point that, for want of a better yardstick, a probabilistic test is applied. Similarly a jury trying a criminal case may be told by the trial judge that in deciding whether they are sure of the defendant’s guilt they do not have to discard every piece of evidence which they are not individually sure is true: they should of course discard anything they think suspect and anything which in law must be disregarded, but for the rest each element of the evidence should be given the weight and prominence they think right and the final question answered in the light of all of it. So it is fallacious to think of probability (or certainty) as a uniform criterion of fact-finding in our courts: it is no more than the final touchstone, appropriate to the nature of the issue, for testing a body of evidence of often diverse cogency.

17. The Australian Federal Court put the issues well in Rajalingam [1999] FCA 719. It pointed out – not for the first time – that a decision on asylum is an administrative process differing in important ways from civil litigation (see paragraph 36). It follows that an appeal which tracks the original issues will have largely the same character. In addition to the valuable passages from the leading judgment of the High Court of Australia in Wu Shan Liang which Brooke LJ has cited, the Federal Court considered the assenting views in that case of Kirby J. These too I find valuable:

“25. First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to be objectively shown, so long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

26. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong?” [Guo v Minister for Immigration (1996) 135 ALR 421, 441]. Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.”

(It needs to be noted that Australian jurisprudence on the Convention uses “speculation” to describe a legitimate exercise falling short of fact-finding.) The Federal Court considered this passage in Rajalingam (paragraphs 47 to 50), noting that it extended the broad evaluative approach even to the ascertainment of past facts. It adopted an exegesis propounded by Drummond J in Thanh Phat Ma v Billings (1996) 71 FCR 431:

‘… unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.’

18. Like Brooke LJ I find the Australian cases of the greatest assistance. I would put my own view, in summary, as follows. The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statue and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in Ravichandran [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and – sometimes – specialized knowledge of tehri own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.

19. It would be pointless, for the rest, to traverse ground so well covered by Brooke LJ. It is, however, worth observing (or at least hoping) that the approach which we consider to be the correct one bodies out what Simon Brown LJ said in Ravichandran [1996] Imm AR 97, 109:

‘In my judgment the issue whether a person or group of people have a ‘well‑founded fear … of being persecuted for (Convention) reasons’ … raises a single composite question. It is , as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.’

While, for reasons considered earlier, it may well be necessary to approach the Convention questions themselves in discrete order, how they are approached and evaluated should henceforward be regarded not as an assault course on which hurdles of varying heights are encountered by the asylum seeker with the decision‑maker acting as umpire, nor as a forum in which the improbable is magically endowed with the status of certainty, but as a unitary process of evaluation of evidential material of many kinds and qualities against the Convention’s criteria of eligibility for asylum.”

26.Also of particularly useful and relevance is the UNHCR’s Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013, which provides a more comprehensive and up-to-date guidance specifically on credibility assessment to address the challenge inherent in evidentiary law in asylum claims, and in agreeing with what Sedley LJ had stated above that credibility assessment should be based on the entire relevant evidence of the claim and to be looked at in the round at section 2.7, it would be useful to first refer to its section 2.3 which provides that the objective and impartial assessment of non-refoulement claims for international protection is not an adversarial process:

“2.3. Objective and impartial assessment

It is critical to recall that the first instance procedure is not an adversarial process. On the contrary, Article 4 (1) QD explicitly states that it is the Member State’s duty to assess the relevant elements of the application in cooperation with the applicant. It is, therefore, not the role of the determining authority to contest an application for international protection or strive with zeal to identify indicators of a lack of credibility.

Article 8 (2) (a) APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence and it applies to the examination of all applications regardless of the applicant’s identity, background, or circumstances.

The national legislation and guidance of EU Member States should reflect this requirement. By way of example, updated UK guidance explains that:

‘[a]ssessing the credibility of a claim is not about making negative credibility findings and focusing on refusal. It is an objective assessment of the material facts that go to the core of the claim […]. The guidance adds: ‘It should be a neutral assessment of the material facts […] in which subjectivity should be kept to a minimum’.’

The requirement of impartiality and objectivity applies regardless of the circumstances of the case. As stated in the UNHCR Handbook, the decision-maker must conduct the fact-finding process “in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘underserving case’.”

It is, therefore, critical that decision-makers do not prejudge credibility and do not approach the task with scepticism or a ‘refusal mind-set’. This may prejudice and distort the process of both gathering information and assessing the applicant’s statements and other evidence, thereby violating the requirement of impartiality.

The examiner(s) must, therefore, start out with maintaining and being seen to maintain an open mind throughout the procedure. This is particularly salient when only one case worker handles an application, and none or only limited review or quality checks are carried out on decisions to reject claims for protection, in particular the basis for the findings of fact upon which decisions are made. In some Member States, while decisions to grant international protection may require peer review by a senior colleague, decisions to reject an application may be taken by the one case worker without any peer review.

It should also be recognized that many asylum adjudicators work in a societal and political context concerned with preventing irregular immigration and ensuring that the asylum system is not abused by persons fabricating evidence. Some determining authorities are located in government departments that have the objective to prevent irregular immigration. This may influence the mind-set of decision-makers and make it more challenging to implement an institutional culture in asylum procedures that is adequately human rights and protection-oriented.

It is, therefore, vital that decision-makers recall that their task is to uphold fundamental human rights and identify applicants who qualify for international protection. Furthermore, it is crucial that determining authorities take appropriate steps, as necessary, to ensure an institutional mind-set that is protection oriented and an institutional culture that is ‘protection-sensitive’.

In addition, examiners need to be aware that their perception of the applicant and his or her application should not be negatively influenced by issues that are not pertinent to the material facts of the application. Elsewhere in this report, UNHCR stresses that a factor such as the applicant’s demeanors is not a reliable indicator of credibility. A determination of credibility by reference to demeanour has a subjective basis that will invariably reflect the values, views, experience, prejudices, and cultural norms of the decision-maker and is, therefore, at odds with the requirement of objectivity and impartiality.

Examiners should also be aware of the subliminal influence of factors that are pertinent to the material facts of the application. For example, that an applicant has told a lie(s), concealed a fact(s) or submitted fraudulent documentation is not necessarily decisive in the assessment of credibility of the applicant’s statements on material elements in the claim. A lie or submission of false documentary or other evidence may be re-evaluated once all the circumstances of the case are known.

The credibility assessment should be based on the available relevant evidence and not on the decision-maker’s intuition or gut feeling. Speculative argument that fails to rely on objective and reliable sources of information and that reflects the decision-makers own theory about how the applicant or others could or should have acted or about how certain events could or should have unfolded, violates the principle of objectivity. As expressed in Australian guidance: “What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances,”

Assessing credibility, therefore, requires decision-makers not just to assess the statements and other evidence applicants present, but also to be aware of the extent to which their own emotional and physical state, value, views, prejudices, and life experiences may influence the objectivity and partiality of their decision-making. This will enable them to minimize subjectivity and partiality.”

27.In recognizing that to remain objective and impartial in such evaluating process is a real challenge given that decision-makers in the determining authorities are being repeatedly called on to assess applications often within limited time-frames, and from applicants from the same country(ies) that due to repetitive nature of the task that there is always a risk that decision-makers may categorize such applications into generic case profiles, and make predetermined assumptions about their credibility and other issues, as noted by Beyond Proof which warns about such risk and that disbelief as a human coping strategy that undermines objectivity and impartiality, and that credibility assessment must be conducted on an individual basis by taking into account the individual and contextual circumstances of each applicant impartially and objectively, and through the lens of a multi- and inter-disciplinary approach (at p.40):

“It is recognized that remaining objective and impartial is a challenge, especially given that the decision-makers in the determining authorities are repeatedly called on to assess applications, often within limited time-frames and sometimes from applicants from the same (few) country(ies) of origin or habitual residence. Due to the repetitive nature of the task, there is a risk that decision-makers may consciously or unconsciously categorize applications into generic case profiles and make predetermined assumptions about their credibility and other issues.

Previous findings on the credibility or otherwise of similar applications from the same country of origin or place of habitual residence should not result in a predetermined assumption about credibility. Conversely, that an applicant’s application differs substantively from others from the same country of origin, or habitual residence, should not result in a predetermined assumption about credibility. In this regard, it is perhaps also worth noting that each application must be assessed individually, impartially and objectively, even in the context of country guidance relating to at-risk and not at-risk groups.

Routine exposure to narratives of torture, violence, inhuman and degrading treatment can take its psychological toll on examiners. If interviewers and decision-makers suffer psychological distress from their exposure to such evidence – so-called vicarious trauma – they risk employing natural coping strategies that involuntarily compromise their fact-finding and impartiality. For example, examiners may seek to avoid exposure to evidence causing further distress and this may distort their questioning of the applicant during interview and/or their pursuit of further relevant supporting evidence.

Examiners may find the content of the evidence so horrific that they are tempted to reject it as unimaginable, fabricated and therefore not credible. Other recent research noted that “it becomes increasingly difficult to approach each case afresh and to avoid creating hierarchies of suffering which demand ever higher levels of abuse to incite sympathy.” The research cites the view of a presenting officer as follows:

‘[T]o start with, it was quite traumatic … and then after a while, I suppose once you’ve read a lot of these cases and you tend to sort of get past the stage where they might, they’re probably not telling the truth anyway … I don’t know if you become hardened to it, well perhaps you do a little bit, you learn ways of dealing with it.’

Disbelief is a very human coping strategy that undermines objectivity and impartiality.

Emotional detachment may be viewed as essential in maintaining objectivity. However, examiners have to be careful that such detachment does not translate into disbelief and/or a reluctance to engage with the applicant’s narrative.

The requirement that the credibility assessment must be conducted on an individual basis, taking into account the individual and contextual circumstances of the applicant, as well as impartiality and objectivity, means that the assessment should be undertaken through the lens of various disciplines, including legal, cultural, psychological, anthropological, and sociological. A multi-and inter-disciplinary approach is required to ensure that the credibility assessment responds to the realities of testimony by applicants. It is, therefore necessary that the credibility assessment, in all its aspects, is informed by the substantial body of relevant empirical evidence that exists in these fields.”

28.Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the applicant’s own evidence about what happened to him or her without any subjective assumptions of the decision-maker, as noted by the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015 at s.5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think ‘someone genuinely fleeing for their life’ should have done, or what ought to have been possible or not possible, or how ‘a genuine refugee’ would have behaved, or how they think a third party would have acted in the circumstances.”

29.In ST v Betty Kwan [2014] 4 HKC 419, the Court of Appeal identified such dangers of adopting personal assumptions, conjecture or speculations when assessing the credibility of a non-refoulement claim, as Cheung CJHC (as he then was) elaborated on such considerations of particular relevance to the screening of torture claimants as a matter of fairness at [43]:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

30.Henceforth, in assessing the credibility of a claim and making credibility findings thereof, all the evidence, both oral and documentary, must be considered and assessed, and where appropriate within the context of the relevant COI as to the situations of the country or place where the applicant comes from, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible, and to determine the claim as the totality of the evidence warrants and in the round, and that the rejection of some of the evidence, or even all of the applicant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim which must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the applicant’s situation and evidence regarding persons who are similarly situated: See Section 2.2.1 and 2.2.2 of the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004.

31.In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt in favour of the applicant: see Beyond Doubt at p50.

32.Lastly, and no less importantly, high standards of fairness must be observed by the decision-maker in all aspect of the assessment and determination of applications of this nature, as Li CJ elaborated in Probahar supra:

“43. The question in this appeal concerns the standard of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depend on the examination of all aspects relating to the decision in question: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

33.It is with these guidance and principles in mind that I now come to the Board’s findings and reasons for rejecting the credibility of the Applicants’ claims as stated in the decision.

Board’s Findings and Reasons for Rejecting the Credibility of the Applicants’ Claims

34.As noted above, the Board rejected the credibility of the claims of both the 1^st and 2^nd Applicants based on its adverse findings and reasons primarily due to what it considered as inconsistencies and discrepancies in their written evidence given in their NCF and at their hearing before the Board as well as those between each other as set out in the decision as follows:

“108. For the reasons that follow, the Board has found the evidence of both the Appellant and the Second Appellant to be internally inconsistent on central matters when their oral testimony is taken together with their previous written claims and evidence at Screening Interview. Furthermore, the Board has found significant conflict between the oral testimony of the Appellant and the Second Appellant in evidence at the hearing. The inconsistencies also include significant omissions of central claims during the course of oral testimony that had been made earlier stages of the Appellants’ USM process.

Circumstances of the adult Appellants’ meeting and subsequently being observed by Namdev Singh

109. In the written claims, the Appellant stated that he met his future wife, the Second Appellant in May 2014 at a restaurant in Jagraon City, after meeting her online in around 2012. In his oral testimony, the Appellant gave evidence to having met the Second Appellant at a Sikh temple in June or July 2014. When questioned on the apparent inconsistency, the Appellant responded that they arrange to first meet at the temple and then went to a restaurant immediately afterwards. By contrast, the Second Appellant stated that their first in-person meeting occurred in May 2014 at a restaurant that was more like a juice bar. When the Appellant’s evidence concerning the Sikh temple was put to her, she stated that they did meet at the Sikh temple on a later occasion.

110. The above inability of the adult Appellants to consistently provide a consistent account of a significant event such as a first physical meeting following an online relationship, tends in the Board’s view to cast doubt upon whether the adult Appellants are providing a truthful account of such an event.

111. In addition, in his written claims the Appellant stated that the couple’s first physical meeting in May 2014 and they were first observed by the Second Appellant’s uncle at the Sikh temple at the end of 2014, a period of approximately six months, and only slightly less taking into consideration the Appellant’s different evidence at the hearing that they met in June or July 2014. By contrast, in his oral evidence at the hearing the Appellant told the Board that was only a short period between first meeting and being observed by Namdev Singh, only around one month. The Appellant’s only response to this inconsistency was that he was not very good at dates. Whilst the Board may tend to place less adverse weight on an ability to recall particular dates, it does place weight on the Appellant’s inability to recall approximately timeframes between very significant events.

Events following the adult Appellants being observed at the Sikh temple by Namdev Singh

112. In his written claims, the Appellant describes an event following being observed with the Second Appellant at the Sikh temple, involving a confrontation when he was in the city on his motorbike with both Namdev Singh and his wife’s brother Pravi. He described an attack lasting for half an hour to 45 minutes and the threat from Pravi to immediate cease seeing the latter’s sister or there would be consequences. No other similar events are referred to. By contrast in his oral evidence at the hearing the Appellant described an earlier settlement event of travelling to the village of the Second Appellant where he was confronted by Pravi Singh and two to three others by Namdev Singh was not present on that occasion. The Appellant also differently describes the event in the city occurring a few days later, in that instead of Pravi making threats it was Namdev Singh. Further in his oral evidence he said that he had been standing with friends rather than on his motorbike, and he told the Board that this confrontation lasted 15 to 20 minutes, not 30 to 45 minutes according to his written claim.

113. The Board gives weigh to the inconsistencies in the Appellant’s description of this particular period and gives weight to the omission of the earlier confrontation in the village from the written claims. The Board has considered but does not place credence on the Appellant’s explanation that his legal representative did not record all his claims.

The Warehouse Incident with Raju

114. At the hearing, the Board raised with the Appellant its concerns about the significant discrepancies in his evidence regarding what occurred after being held at a rice warehouse, tied up with barbed wire and beaten by his wife’s uncle Raju and his accomplices. In his written claims, the Appellant states that he did not dare report to the police about the incident because Raju was chairman of the local branch of the Congress Party and would be able to influence police.

115. By contrast, in his oral evidence the Appellant told the Board that he had made an attempt to file a police complaint and had waited with his father for many hours of the police station but they have refused to take it because of Raju’s influence as a member of the BJP, as opposed to the Congress Party. When these significant discrepancies were put to the Appellant, he sought to blame them upon interpreting issues because the previous interpreter had been Pakistani. Separately from the clarification by the interpreter engaged at the hearing that previous interpreter was her husband and was most certainly not Pakistani, the Board in any event does not accept that discrepancies of such magnitude would generally be attributed to misunderstandings due to interpreting problems.”

35.The Board also expressed concerns about what it considered as significant discrepancies in the chronology of various important events and incidents in the 1^st Applicant’s own evidence as well as their inconsistencies with those of the 2^nd Applicant as listed in [117] – [118] of the decision, and upon which the Board made the following findings:

“119. The Board places significant weight of the inconsistencies in the chronology of important events provided by the Appellant at different times. It also places weight on his acknowledgement in his oral evidence that he had simply forgotten his earlier claim about having been subjected to a false dangerous drug charge.

120. In addition the above significant variance in chronology, the Board notes that separately in his oral evidence when asked which event triggered his first trip to Dubai, the Appellant responded that it had been the observance of him and the Second Appellant at the Sikh temple by Namdev Singh, which accords with neither of the Appellant’s other two competing chronologies concerning his travel to Dubai. The Board had put to the Appellant that on this basis he must have been to Dubai on three occasions, not two, namely the first immediately after being observed by Namdev Singh at the temple, the second after the Jagraon Police Station incident, on the third after he was married and the Appellant agreed this was the case.”

36.The Board went on to find that the evidence of the 2^nd Applicant also added further inconsistencies to the overall account ([121] of decision), and arrived at the following conclusions that the Applicants have failed to show that they would face any real risk of being harmed by the 2^nd Applicant’s family due to any inter-caste marriage or any dispute over land or jewelry within her family or for any proscribed reasons upon their return to India:

“123. Overall, in view of the internal inconsistencies in the evidence provided by both the Appellant and the Second Appellant coupled with the inconsistencies that exist between their varying accounts, the Board is not satisfied as to any of the central aspects of the Appellants’ claims, the effect that they face any harm from the family of the Second Appellant on account of being in an inter-caste marriage (a matter which the Board in any case can make no confident finding), or on account of any land or jewelry dispute existing within the family of the Second Appellant.

124. In the light of the Board’s findings above that the Appellants have failed to show that they would face a real risk of being harmed if they were returned to India for any proscribed reason, the issue of internal relocation does not directly arise for consideration.

125. Overall, in light of its assessment of the Appellants’ claims and the Board’s assessment of the available evidence, the Board does not accept that there is a consistent pattern of gross, flagrant or mass violations of human rights in Bangladesh for the purpose of section 37ZI(5) of the Ordinance or otherwise.

126. By reason of the foregoing, the Board accordingly concludes that there is not a real risk that the Appellants will prospectively face any of the proscribed forms of harm should they return to India.”

37.The Board then arrived at the conclusion in relation to the “family unit” of the Applicants that their claims for non-refoulement protection were not made out on any of the applicable grounds, and confirmed the Director’s decision as follows:

“Conclusions in relation to the family unit

131. The Board finds that the Appellant, and implicitly the Second Appellant, have made primary claims in respect of proscribed harm. The Board has considered those claims and rejects them. The Second Appellant and the child, the Third Appellant, are also joined to the Appeal on the basis of their family relationship to the Appellant, and the Third Appellant is not joint on the basis of any independent claims made pursuant to the USM. The outcome of the all secondary Appellants are also therefore determined by the Board’s assessment of the Appellant’s primary claims pursuant to the USM.

132. For the reasons set out above, the Appellants’ claims for non-refoulement protection are not made out on any of the applicable grounds. Accordingly, the Board confirms the Decision of the Director dated 28 December 2018.”

38.As against these findings of the Board that I now turn to consider the Applicants’ complaints under their proposed grounds for their intended challenge of the Board’s decision, starting with the first 2 which can as noted above be conveniently dealt with together.

Grounds (1) & (2): Erroneous/misdirection in credibility assessment and erroneous approach

39.In her submissions Ms Samantha Lau of counsel assigned by the Legal Aid Department for the 3^rd Applicant argues that the Board erred in its approach to the credibility assessment of the Applicants’ claims by wrongfully placing emphasis on peripheral or immaterial details of the 1^st Applicant’s account of events including:

(a)  taking issue with the alleged inconsistent account of where the 1^st and 2^nd Applicants first met whether at a temple or in a restaurant ([109] – [110] of decision) when the location of their first meeting is hardly a central issue to their claim which rests primarily on risks arising from their inter-caste marriage;

(b)  placing weight on the inability of the 1^st Applicant to recall the approximate timeframe as to his first meeting with the 2^nd Applicant and the occasion when they were first observed by the 2^nd Applicant’s paternal uncle Namdev Singh ([111] of decision) when such timeframe is at best peripheral and in no way suggests that their marriage is not inter-caste or that those violent events inflicted by the 2^nd Applicant’s family did not take place, while the 1^st Applicant simply relayed in his NCF of what he had been told by the 2^nd Applicant who in turn was told by her parents that they had been seen by Namdev Singh (HB1/10/222/§3 & HB1/10/223/§5) that any difference or inconsistencies between their versions should not and could not regarded as any adverse credibility indicator;

(c)  placing weight on the identity of the person said to have made threats in the confrontation at the Sikh temple which the 1^st Applicant failed to mention in his NCF and on the difference in time that the confrontation had lasted for “15-20 minutes” instead of “30 to 45 minutes” as stated in his record of interview (HB2/10/292);

(d)  placing significant weight on what the Board described as “inconsistencies in the chronology of important events” provided by the 1^st Applicant (HK1/8/77-78/§§117-119) of which the Board appeared to be conducting some memory test or microscopic examination of his memory as to the sequence of those events as part of the credibility assessments of his claim, and that even if the 1^st Applicant might indeed be confused as to the sequence of the events, the Board did not appear to have taken any real challenge that these events did in fact happen as claimed by the 1^st Applicant;

(e)  similarly placing weight on following irrelevant immaterial or peripheral matters in the assessment of the 2^nd Applicant’s evidence as to her claim:

(i)  the number of times that the 1^st Applicant had been to Dubai;

(ii)  the exact political party with which Namdev Singh was associated;

(iii)  whether it was in May or June/July 2016 that the 1^st Applicant’s father and brother were tortured and killed;

(iv)  the sequence between or chronology of events as recounted by the 2^nd Applicant;

(v)  whether the 2^nd Applicant incurred her debt on her first or second trip to Hong Kong.

40.Ms. Lau also submits that the Board, having discussed in details those “inconsistencies” in the evidence of the 1^st and 2^nd Applicant in [123] – [126] of its decision as noted above, then took an erroneous approach in its credibility assessment contrary to the established legal principles when upon rejecting their evidence that it in effect just ended the enquiry without proceeding to assess and determine the their claims on the basis of those evidence that were found to be true or credible or not in issue, nor did it refer to the documentation and COI relevant to their situations or evidence regarding persons similarly situated in their home country.

41.It follows then, Ms Lau submits, that the Board’s credibility assessment is tainted by its complete lack of reference to general or specific COI materials in testing the plausibility of the Applicants’ claims after having correctly identified that being in an “inter-caste marriage” is the core aspect of the Applicants’ claims ([123] of decision), but the Board did not refer to any COI materials in its assessment of the credibility of either the 1^st or 2^nd Applicants, when in fact there were ample COI materials readily available as to treatments of inter-caste couples in India who faced risks of serious harm (HB2/11/343 – 400), and which would support or at least assist the Board in its evaluation of the Applicants’ claims in the round on the basis of those evidence that were not found to be unreliable or not credible, but which the Board had wholly failed to do at all, or at least to consider whether some credence should be attached to such evidence so as to apply the principle of the benefit of the doubt that their claims may probably be true or genuine.

42.Having carefully scrutinized the Board’s findings and reasons stated in its decision as noted above, and on the basis of these submissions of the Applicants, it seems to me both Grounds (1) and (2) are reasonably arguable for their intended challenge of the Board’s credibility assessment of their claims.

Ground 3: No proper assessment of child specific risk of 3^rd Applicant

43.For this ground which relates essentially to the assessment of the claim of the 3^rd Applicant, who was then less than 2 years old and without legal representation in his appeal before the Board, Ms Lau submits that the Board failed to consider it as a separate claim to his parents’ claims, as throughout the decision the Board’s attention was directly at their claims with no mention at all of the risk profile or personal circumstances of the 3^rd Applicant at all, and simply dismissed his claim because it had rejected his parents’ claims, when it is clear that there are minor-specific issues relevant to the 3^rd Applicant, such as his risk profile of facing the cumulative risk of harm from the 2^nd Applicant’s family and the Indian society at large as a child born to a minority Sikh family and inter‑caste parents, that he was born outside India and has never been to that country or to have any contact with any relatives or family members of either of his parents.

44.Ms Lau further submits that notwithstanding such risk profile of the 3^rd Applicant which was clear and obvious to the Board, there was simply no assessment at all by the Board whether he would be afforded meaningful and adequate state protection in India, or whether reasonable internal relocation alternatives would be available to him to minimize or negate any such risks within the country, which is a necessary exercise notwithstanding particular findings for a decision-maker to return to the question “What if I am wrong?”, as noted in Karanakaran at para.17 (see [25] above).

45.While the Board at the time of its decision may not have had the benefit of the guidance and principles subsequently laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, in that non-refoulement claims of children are separate claims from similar claims advanced by their parents, and that decision-maker should consider each of their claims by reference to the personal circumstances of each child claimant, and that even if the claim is based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of the child separately, and that it does not necessarily follow from the dismissal of the claims of the parents that their child’s claim could be dismissed without further and separate consideration of the child’s own personal circumstances, but given the Board’s reason for dismissing the claim of the 3^rd Applicant as stated in [131] of its decision as noted above, it seems to me that this ground is also reasonably arguable for the Applicants’ intended challenge of the Board’s decision.

Disposition

46.In the premises, and for the given reasons, I am satisfied that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable based on their proposed grounds as stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676..

47.Accordingly I grant leave to the Applicants to apply for judicial review of the Board’s decision, and direct that they 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 the Director as interested party.

48.Lastly, costs be in the cause and the 3^rd Applicant’s own costs to be taxed on Legal Aid Regulations.

Dated the 30^th day of July 2026

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