RE MI

CACV 69/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 69 OF 2014

(ON APPEAL FROM HCAL NO. 20 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

Introduction

1.  This is an appeal from a refusal by Anthony Chan J (“the judge”) to grant leave to apply for judicial review.  The applicant for judicial review is a person of Pakistani nationality who made a claim for non-refoulement under Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”).

2.  The applicant departed Pakistan from Lahore by air on 18 December 2006 for Guangzhou.  From Guangzhou he went to Shenzhen and from there entered Hong Kong illegally on 5 January 2007.  His presence in Hong Kong remained undetected until he was arrested by the police on 22 May 2007.

3.  He lodged his torture claim with the Director of Immigration (“the Director”) on 18 September 2007 but his claim was dismissed by the Director on 27 July 2012.  He, thereupon, petitioned to the Chief Executive under Article 48(13) of the Basic Law against the Director’s determination (“Determination”) but his petition was dismissed by an Adjudicator on 31 August 2012. The applicant then applied, on 24 January 2013, for leave to apply for judicial review of the Determination of the Director and the Decision of the Adjudicator.  When that was dismissed on 20 March 2014 he appealed on 2 April 2014 to this Court.

4.  At the hearing of the appeal we allowed the appeal and said we would give our reasons for doing so at a later date.  This we now do.

The Applicant’s CAT Claim

5.  The applicant’s CAT claim is based upon the existence within Pakistan of sectarian violence between Sunni and Shia Muslims.  The majority of the Muslim population in Pakistan follow the Sunni faith but the applicant belongs to the Shia faith.  In the time that he was living in Pakistan he experienced three episodes of actual or threatened sectarian violence.  The first occurred on 8 December 2005 when a Shia mosque in Sialkot was bombed as a result which 50 people were killed and more than 70 were injured.  The perpetrators of the bombing were believed to be Sunni Muslim.  The applicant, who was working as a security guard at the mosque, says that he provided to the police the descriptions of three persons whom he believed were involved in this bombing incident.  He claims that the police did not arrest or prosecute anyone because corruption is rampant in Pakistan and people with money can do anything.

6.  Subsequently, on 12 or 13 December 2005, the applicant’s home was attacked by three men whom the applicant believed to be the three suspects that he described to the police as being involved in the bombing of the mosque.  This shooting incident, which is the second experience of sectarian violence that the applicant has encountered, was again reported to the police but the police took no action besides asserting that they were looking for the suspects.  Later, the applicant saw the suspects loitering outside the Shia mosque.  They ran away when Shia followers fired at them.

7.  Feeling that his life would be in danger, the applicant left Sialkot and moved from place to place within Pakistan, first to Lahore, then to Quetta and finally to Karachi.  The third experience of sectarian violence occurred when the applicant was staying in Karachi.  He was contacted by his mother who informed him that Sunni Muslims came to their house looking for him.  This made the applicant realise that he was no longer safe in Pakistan.

The Director’s Determination

8.  The Director decided that, leaving aside the issue of the applicant’s credibility and taking the applicant’s claim at its highest, the applicant had not established that there were substantial grounds for believing that he would be in danger of being subject to torture as the applicant had not been able to establish that any harm to which he might be at risk is within the definition of torture.  This was because, the Director said, there was “no indication that the Sunni followers involved in these incidents were public officials or were acting in an official capacity.  There is simply nothing to show that the Pakistani Government was behind their acts and refused to do anything about it”.[1]

9.  The Director went on to consider the attitude of the Pakistani Government towards sectarian violence as revealed by the 2004 International Religious Freedom Report (“USIRF”) published by the United States Department of State.  This report was the only material on country conditions that is referred to in the Determination before the Director concluded:

“Having regard to all the circumstances, it is not accepted that the pain or suffering that the Sunni followers inflicted upon you, if any, was inflicted by or at the instigation of or with the consent of a public official or other person acting in an official capacity within the definition of “torture” under the Convention.” [2]

10.  However, later in his Determination the Director considered the applicant’s claim that the Pakistani police were corrupt and would not protect him because he did not have the money to bribe them and because the Sunni are the majority.  In rejecting this assertion the Director referred to “the latest” Human Rights Report published by the United States Department of State and the rights guaranteed by the Constitution of Pakistan.

11.  The Director also considered the credibility of the applicant’s claim and referred to a number of matters which he said caused him to conclude that the applicant’s claimed fear of being subjected to risk of torture if returned to Pakistan was not credible.

12.  Finally, the Director considered the question of whether the applicant would be subjected to any real risk of torture if returned to Pakistan and decided that even if he took the applicant’s claim at its highest, there was no real risk of torture because it was not accepted that the Sunni followers would still have a desire to harm the applicant after the lapse of time that had occurred since the bombing incident, the applicant could relocate to other places to avoid the risk of harm; and it was not accepted that the Pakistani authorities would not offer the applicant any protection simply because he was of the Shia faith.  He also relied on his conclusion that such harm as the applicant might be at risk of having inflicted upon him would not be inflicted by or at the instigation of or with the consent of a public official or other person acting in an official capacity.  Thus such harm would not qualify as “torture”.

The Adjudicator’s Decision

13.  The Adjudicator, like the Director, concluded that the harm to which the applicant was at risk, if at all, was not harm which was within the definition of torture because it did not involve the Pakistani Government or any public authorities.  He broke down the definition of torture into four legal elements which he described as follows:

“any act by which (1) severe pain or suffering, whether physical or mental, (2) is intentionally inflicted on a person, (3) for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, and (4) such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (but) it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” [3]

14.  Element 4 he referred to as the requirement of a “State Actor”.  In respect of this element, which he addressed first, he said:

“It is abundantly clear that the whole case had involved sectarian clashes between the Sunnis on the one hand and the Petitioner who was a Shia on the other, with no instigation from or involvement by the national government of Pakistan or by any person acting in an official capacity … there is no evidence, not even a hint, of any acquiescence on the part of the police in the whole case.

…

The evidence fails to establish involvement by a “State Actor”, hence “Element 4” in the definition of Torture is not established. This aspect alone dismisses the Petition.” [4]

15.  The Adjudicator also noted that there was no past incident of actual harm caused to the applicant and concluded:

“In any event, this case consists of no act which establishes “Element 1” in the definition of Torture, hence the Petition also fails because of a reason independent of what was stated in paragraph 10 above.” [5]

16.  The Adjudicator went on to consider his “Legal Element 3” and found that such harm as might be inflicted upon the applicant would be only due to sectarian violence or revenge, it would not be inflicted “in order to obtain information or a confession from the petitioner or any third person or as a result of discrimination” and, accordingly he said:

“… the evidence fails to establish “Element 3” in the definition of Torture, and the Petition fails because of yet another reason which is independent of what have been stated in the preceding paragraphs.” [6]

The Application For Leave to Apply for Judicial Review

17.  There are four grounds on which leave is sought but the applicant only pursues the first three grounds.  The first ground is irrationality, the second is procedural unfairness based upon the failure to provide an oral hearing and the third is the failure to provide reasons for not holding an oral hearing. The second and third grounds relate only to the Decision of the Adjudicator.

18.  Under the ground of irrationality the complaint is that the Director failed to apply his mind to the extended meaning of acquiescence arising from a breach of duty of due diligence on the part of the Pakistani Government.  In support of this ground reliance is placed on the fact that the Director only had reference to the 2004 USIRF report as his country conditions material. It is said that the Director missed the real issue when he tried to base his conclusion on the applicant not being the target of the Pakistan Government or public authorities.

19.  On the issue of whether there are substantial grounds for believing that the applicant would be in danger of being subjected to torture, it is claimed that the Director misdirected himself by focusing on whether the applicant, in the past, had been subjected to severe pain and suffering.  He again failed to consider the extended meaning of State acquiescence and it is said, there was no basis for him to conclude that due to the lapse of time it should be safe for the applicant to return to Pakistan.  Equally his summary assessment that the applicant could safely relocate to another part of Pakistan was also flawed.

20.  Attack was also made on the Director’s treatment of the credibility of the applicant but for the purpose of this judgment it is not necessary to refer to this part of the application for leave.

21.  In respect of the Adjudicator’s Decision complaints are made that he did not consider the extended meaning of State acquiescence; in assessing the risk of torture he allowed himself to be unduly influenced by the lack of past incidents of torture and on the issue of the purpose of the torture he failed to appreciate that the applicant’s claim was based on religious discrimination.

22.  For the purposes of this judgment it is not necessary to discuss in detail the second and third grounds on which leave is sought.

23.  The applicant also sought an extension of time in which to apply for judicial review.  He explained his delay as being due to the processing of his legal aid application and the time needed for his legal representatives to obtain and consider all the relevant papers.

The Judgment Refusing Leave

24.  The judge summarised the three grounds on which leave was being sought and said that in respect of the second and third grounds there was no merit in the criticism based on the lack of an oral hearing as it was claimed from the Adjudicator’s Decision that issues of credibility were cast aside.  For the purpose of this judgment it is not necessary to consider his decision on these grounds.

25.  In respect of the ground of irrationality the judge recognized that the most important complaint was that both Decisions were made without regard to the “extended meaning” of acquiescence and the relevant country information which is critical of the competence of the Pakistani Government in upholding the law and order of that country.

26.  Notwithstanding that he was critical of the Director and the Adjudicator in not listing out the country material they considered in making their Decisions he said that “it would not be right to say that neither the Director nor the Adjudicator had in mind the issue of State acquiescence when they made their decision”.[7] He said that it should not be assumed that something as elementary as State acquiescence would have been ignored or overlooked without sufficient grounds for coming to such a conclusion.

27.  Furthermore in this case, he noted, there was evidence that the Pakistani police had responded to the complaints of violence made by the applicant and his religious leaders and had investigated the matters.  This was taken into account by both the Director and the Adjudicator in reaching the conclusion that there was nothing to show that the Pakistani Government was behind the acts of violence or had refused to do anything about them.  In this respect he also noted that merely because a criminal investigation had not resulted in a successful outcome for the victim did not mean that the State was acquiescing in the conduct of those perpetrating the criminal acts.

28.  In view of all these matters the judge concluded at paragraph 10 of his judgment:

“I have no doubt that both the Director and the Adjudicator were entitled to come to the view that the police actions demonstrated that there was no State acquiescence.”

29.  This conclusion was then immediately followed by the comment:

“Even assuming that they have overlooked the country information critical of the Pakistani Government, which are set out in the Amended Form 86, I am unable to see that how such general information would materially impact upon a finding on a particular facts. To suggest otherwise would effectively be saying that unless the Pakistani police had managed to apprehend the alleged assailants, they had acquiesced in the wrongdoings. That cannot be right.”

30.  He said that in view of the findings he made on the issue of “State Actor”, it was unnecessary for him to deal with the other conclusions of the Adjudicator because the failure to establish the element of State Actor was necessarily fatal to the applicant’s CAT claim.

31.  He also said that whatever deficiency existed in the Decisions in respect of the country information would not affect the outcome and so he exercised his discretion to decline to grant leave.

The Grounds of Appeal

32.  The first ground of appeal is that the judge erred in holding that the Director and the Adjudicator were entitled to come to the view that the police actions demonstrated that there was no State acquiescence and further erred by holding that the country conditions of Pakistan would not have a material impact on this finding.

33.  The second ground of appeal is that the judge erred in holding that it would not be right to say that neither the Director nor the Adjudicator had the issue of State acquiescence in mind when they made their Decisions.  It is said that from a reading of their Decisions the general indications referred to by the judge did not demonstrate that the Adjudicator and the Director were alive to the issue and, to the contrary, there was sufficient grounds to demonstrate they had failed to properly address this issue.

34.  The third ground of appeal attacks the judge’s holding that there was no merit in the criticisms based on the lack of an oral hearing as credibility was not an issue before the Adjudicator.  In respect of these grounds of appeal it is argued that once the applicant claimed that the police in Pakistan were corrupt and that he would not be provided with reasonable protection it was incumbent upon the Adjudicator to hear the applicant before rejecting this claim.

35.  The fourth ground of appeal is that the judge erred by holding that whatever deficiency there is in the Decisions on country information would not affect the outcome.

36.  The final ground of appeal is that the judge ought to have held that the applicant had established a reasonably arguable case on the grounds set out in the Amended Form 86.

Discussion

37.  The purpose of this Court is not to adjudicate substantively on the merits of the applicant’s grounds of review but merely to determine whether he has established reasonably arguable grounds which enjoy a realistic prospect of success to justify granting him leave to judicially review the Determination of the Director and the Decision of the Adjudicator.

38.  The core issue in respect of both the Determination and the Decision is whether the two decision-makers considered the application of the extended concept of State acquiescence to the applicant’s claim.  Both decision-makers focussed on whether the Pakistan Government and its local public officials were actually involved in the sectarian violence or were acquiescing in it by deliberately choosing not to prevent, investigate or prosecute it.  This latter form of acquiescence is not the form on which the applicant relies.  He relies on what has become known as the extended form of State acquiescence which involves a failure of due diligence on the part of the State or its officials.  It is an extended form of State acquiescence because it makes the State liable for the actions of non‑State Actors and also because it makes the State liable not just for what it did and not just for what its local public officials may have deliberately chosen not to do, but, in certain circumstances (as discussed in AM v Director of Immigration & Anor [2014] 1 HKC 416 at paragraph 61), for also what it, the State, through its public officials, should have done but failed to do, in respect of the actions of these non‑State Actors.

39.  In order to properly consider a claim made on this basis it will be necessary for the decision-makers to access materials on the country in question so that they can properly assess the applicant’s claim.  These materials must be recent and must be adequate for the task.  In this respect we see no reason why the applicant should not be asked to identify for the benefit of the Director if he has particular materials or parts of particular materials on which he relies to establish his claim and to which he wishes the Director to have regard.  When the Director intends to rely on materials other than those relied on by the applicant he should draw those materials to the attention of the applicant and provide him with an opportunity to comment on them.

40.  The decision-maker should indicate the materials to which he has had regard in reaching his Decision and the information or particular passages on which he relies for his Decision.  If the materials contain passages or information suggestive of a contrary view then the decision‑maker should demonstrate that he is aware of them and has taken them into account.

41.  We are satisfied that in respect of both decision-makers the judge erred in finding that the two decision-makers were alive to the issue of the extended concept of State acquiescence and that the deficiencies in their decisions on country information would not have affected their findings on “State Actor”. We are satisfied that the applicant has a reasonably arguable case with realistic prospects of success that neither decision‑maker gave any consideration to the extended concept of State acquiescence and that neither gave any or sufficient consideration to country materials.

42.  Before leaving this appeal we wish to observe that the common complaint of CAT claimants during the judicial review process is that neither the Director nor the Adjudicator properly understood the basis of the applicant’s claim or that they had failed to have regard, or sufficient regard, to country materials.  Lawyers for the claimant then set out in some detail in the Form 86 the legal basis of the applicant’s claim, the legal principles applicable to it and the country materials to which the Director and Adjudicator should have had, but didn’t have, regard.  We find this extraordinary given that the courts have repeatedly said that the processing of the applicant’s CAT claim should be one of joint endeavour.

43.  The process of joint endeavour is exactly what it says, a process in which the applicant, his legal representative and the Director work together.  The Director should not hesitate to involve the applicant and his legal representative in assisting him to better understand the nature and basis of the claim.  There is much less room for misunderstanding and complaint when the Director has shown he understands clearly the basis of the applicant’s claim and has had regard to the materials on which the applicant relies.

44.  We see no reason why the Director should not require from the applicant’s legal representative, if he has one, a statement of the legal basis of the applicant’s claim, how the requirements of the CAT are met and, where relevant, the country materials on which the applicant relies.  Where the applicant’s claim is based on the extended concept of State acquiescence, the lawyer could be required to explain how it is said there has been a failure of due diligence by the State and how such a failure would subject the applicant to the risk of torture. These comments are just as applicable to the petition stage of the proceedings should the applicant be legally represented at that stage.

Conclusion

45.  For these reasons we allowed the appeal, granted the applicant the extension of time he needed to apply for judicial review and granted him leave to do so. We further ordered that the costs of the appeal be costs in the cause of the judicial review and that the applicant’s own costs be taxed according to the Legal Aid Regulations.