Z v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 891/2017

[2019] HKCFI 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 891 of 2017

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 Applicant in open court;

1.  leave to the applicant to apply for judicial review of the Torture Claims Appeal Board’s decision dated 3 November 2017 be granted on the following grounds:

(a)  illegality: error of law/misdirection in law in that the adjudicator failed to consider the materials and evidence before him notwithstanding the applicant did not give oral evidence in the appeal; and

(b)  illegality: that the adjudicator failed to give adequate reasons for dismissing the appeal;

2.  costs to be in the cause; and

3.  the applicant’s own cost to be taxed in accordance with Legal Aid Regulations.

Observations for the Applicant:

1.  The applicant is a 49-year-old national of Pakistan who entered Hong Kong illegally on 18 November 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by certain members of rival political party Pakistan Muslim League (N) (“PML(N)”).  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Sam Mona Roshan, Azad Kashir, Pakistan.  After leaving school he worked as an electrician, got married and became a supporter of the political party Pakistan Peoples Party (“PPP”) mainly responsible bringing people in the village to vote during elections.

3.  One day in June 2011 during general election, while he was standing outside a polling station, the applicant was attacked by several members of PML(N) when he was punched and kicked until the police arrived and the assailants fled the scene.  After receiving medical treatments the applicant did not file any complaint to the police due to the PPP’s influence in the village.

4.  On one evening in August 2011 the applicant heard some gun shots fired at his house, and although he did not see any person who fired the shots he found bullet holes on the wall of his house.  Afterwards he started to receive threatening call from a PML(N) member HJ, with whom he previously had a dispute, that he would be killed if he continued to support PPP. 

5.  On another occasion in October 2011 while he was having tea with friends at the bazar, several men armed with pistols approached the applicant and punched him, and before they left they fired a shot in the air with their pistol.

6.  For the next two years the applicant kept receiving threatening phone calls from HJ that he felt it was no longer safe to remain in Pakistan, and so he departed on 11 November 2013 for China, and from there he sneaked into Hong Kong and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 15 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 8 December 2015 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from HJ and his men upon the applicant’s return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that given his low position in PPP and with no further incidents during the two years before he left Pakistan show that there was no real intention of the PML(N) members to harm him other than to disrupt his activities for his party during elections, that in the absence of 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 Pakistan with a large population of 199 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for HJ or his people to locate him.

9.  By a Notice of Further Decision dated 14 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 17 December 2015, and for which he attended an oral hearing on 25 October 2017 before the Board during which he elected not to give further evidence and relied only on his lawyer’s submissions based on the materials previously presented to the Director.  On 3 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In his decision the adjudicator found that the applicant in electing not to give evidence had deprived the Board of the opportunity of properly assessing the veracity of his account, as he explained as follows:

“ 50. The Appellant’s case is based solely upon his own evidence. There is nothing in the COI that is specifically referable to the events alleged by the Appellant.

51. In view of this the initial question for the Board in assessing how likely it is that the danger the Appellant claims that he fears will materialize is the credibility of the Appellant.

52. It was for that reason that the Board decided that his appeal was not one that could be decided on the papers and consequently ordered that there should be an oral hearing.

53. There are a number of features of the account given by the Appellant to the Immigration Department, which are relevant to his credibility and upon which the Board wished to seek clarification and explanation by the Appellant.

54. By electing not to give evidence the Appellant has deprived the Board of the opportunity of properly assessing the veracity of his account.

55. He has thereby failed to prove, even to the low standard required, that there is a genuine risk, real chance or substantial grounds for believing that he would suffer the harm he claims to fear or indeed any harm warranting non-refoulement protection if he returned to Pakistan.”

12.  The adjudicator accordingly proceeded to conclude that the applicant had failed to show that there are substantial grounds for believing that he would be subjected to any risk of harms under any of the applicable grounds, and therefore dismissed his appeal.  

13.  On 15 November 2017 the applicant filed his Form 86 for leave to apply for judicial review but without providing any particulars as to which decisions he wished to challenge nor put forward any grounds for his application, and it was not until he was subsequently granted legal aid with legal representation that he obtained leave to amend his Form to state that it was the decision of the Board in dismissing his appeal that he now seeks leave for judicial review on the following grounds:

(1)  illegality: error of law/misdirection in law in that the adjudicator failed to consider the materials and evidence before him notwithstanding the applicant did not give oral evidence in the appeal;

(2)  illegality: that the adjudicator failed to give adequate reasons for dismissing the appeal; and

(3)  illegality: that the adjudicator failed to apply the relevant principles in assessing the credibility of the applicant as a non-refoulement claimant. 

14.  The first two grounds can essentially be considered together, as Mr Ngan for the applicant submits that notwithstanding the fact that there was no oral evidence form the applicant at the appeal hearing, that cannot be a valid reason for dismissing his appeal, as the adjudicator was still under a duty to consider all the relevant materials before the Board and make a determination on the merits of the non-refoulement claim under the principle of high standard of fairness, but which the adjudicator failed to do so at all, or if he did he did not give any or adequate reasons for rejecting the applicant’s claim in the decision.

15.  In Re Hidayah [2018] HKCA 595, where the Board dismissed the petition of a non-refoulement claimant for similar reasons as follows:

“ Consideration of the Petitioner’s Claim

29. It is incumbent upon the Petitioner to satisfy the Board that there is a real risk or chance, or that there are substantial grounds for believing, that she would suffer the harm she claims to fear if she were to return to Indonesia.

30. The Petitioner has described her situation in the information supplied to the Department.

31. However, in view of her failure to attend the Hearing, the Board is unable to determine the credibility of her assertions. In the absence of oral evidence from her, the Board is unable to determine whether there is a real risk or there are substantial grounds for believing that she would suffer the harm she claims to fear were she to return to Indonesia.

32. The appeal/petition is accordingly dismissed on all applicable grounds.”      

16.  In allowing the appeal against the lower court’s refusal to grant leave for judicial review, Chu JA in giving judgment for the Court of Appeal held as follows:

“ 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 analyze and assess his claim against all applicable grounds on the basis that his case is plausible.

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

17.  In the present case similarly the Board did take into account the materials supplied with the hearing bundle including the applicant’s written representation, NCF and record of his interview before the Director (paragraph 19 of the Board’s decision) upon which the adjudicator should have proceeded to analyze and assess the applicant’s claim notwithstanding the absence of oral evidence at the appeal hearing, but which he did not appear to have done so according to the applicant.

18.  For the principles held by the Court of Appeal in Re Hidayah, and in applying high standards of fairness, I agree that it is reasonably arguable by the applicant that the Board had in the circumstances failed to give or give sufficient reasons for dismissing his appeal. Accordingly I grant leave to the applicant to apply for judicial review of the Board’s decision on his first two grounds, as it would not be necessary to consider his third ground which was admittedly advanced for completeness only, and with costs to be in the cause and his own costs to be taxed on Legal Aid Regulations.

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