SADAQAT v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 544/2018

[2019] HKCFI 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 544 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Leave be granted to the applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s Decision dated 15 February 2018 on the ground that the Board had failed to proceed to determine his appeal on the basis of the materials before it, or that if it had done so, it failed to give any or sufficient reasons for dismissing his appeal.

Observations for the Applicant:

1.  The applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 8 February 2014 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 a property dealer over certain land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Adel Zai, Attock, Punjab, Pakistan where his mother, his wife and children still live.  After leaving school he worked as a restaurant cook in Attock and later in Dubai until April 2013 when he returned to Attock to look to purchase some land where he could house his family.

3.  Eventually he was introduced to IL who was a land owner and property dealer as well as an influential politician in Attock, and purchased a piece of land from him for 3.5 million Pakistani rupees, but later when he started to have doubt over IL’s ownership or title in the land, IL initially claimed that he would obtain clarification from the authorities, but when he failed to do so it led to a dispute with the applicant, and when the latter demanded for the return of the purchase money, IL started to threaten him with violence, and one night he sent four men armed with pistols to the applicant’s home to threaten to kill him if he did not stop demanding repayment of the purchase money from IL, and proceeded to punch and kick him in front of his wife and children, and before they left they pointed their pistols at the applicant and warned him that next time they would shoot him.

4.  After the attack the applicant did not dare to report the matter to the police, but when he continued to receive threatening phone calls from IL’s men, he fled to Karachi to take shelter at a friend’s place, but when he heard from his wife that IL’s men were still looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and with his friend’s help he departed on 6 February 2014 for China, and from there he sneaked into Hong Kong where he was subsequently arrested by police and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 20 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 21 April 2016 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”).

6.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from IL or his men to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private dispute between them that IL merely wanted the applicant to stop demanding repayment from him with no real intention to seriously harm or kill him, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for IL and his men to locate him.

7.  By a Notice of Further Decision dated 27 March 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”).

8.  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 was filed on 5 May 2016, and for which he attended an oral hearing on 11 December 2017 before the Board during which he however declined to give any further evidence or to answer any questions from the adjudicator to clarify his claim. On 15 February 2018 his appeal was dismissed by the Board upon finding that in the absence of oral evidence from the applicant it was unable to determine whether there was any real risk or substantial grounds for believing that he would suffer the harm he claimed to fear if he returned to Pakistan, and concluded that his claim failed on all applicable grounds.

9.  On 3 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of those decisions and documents previously filed in the earlier process, and at the hearing of his application he claimed that he was then being detained by the Immigration Department and that his former lawyer somehow failed to include any grounds for him, but that he believed that both the decisions of the Director and the Board were wrong in rejecting his non-refoulement claim without providing any further particulars or elaboration as to why their decisions were wrong. 

10.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and it is therefore not open to the applicant to challenge the director’s decision by way of judicial review.

11.  As for the Board’s decision, notwithstanding the absence of any particulars or elaboration from the applicant as to why he said that it was wrong, given that the he was unrepresented and that “life and limb” are in jeopardy being the nature of his claim, high standards of fairness requires that the Board’s reasons for rejecting or dismissing his non-refoulement claim be rigorously examined and anxiously scrutinized, of which the Board gave as follows:

“ 52.  In preparation for the Oral Hearing the Board had spent hours reading and considering the contents of the Hearing Bundle, with emphasis on the Appellant’s contributions, i.e. his NCF, SI and Notice. In the wake of the Appellant electing not to give evidence before the Board, all the materials were fully considered again, in the manner due a ‘Rehearing’ and with regard being had to the low standard required in it being incumbent on the Appellant to satisfy the Board that there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to Pakistan.

53.  With the Appellant electing not to give evidence before the Board, the Board was left with no direct material from which to properly make findings as to the Appellant’s credibility. Also, with no oral evidence from the Appellant to possibly better or more fully present his claim and the grounds of Appeal, the Board finds there is nothing to tell against the findings in the Decision and NoFD that the Appellant’s non-refoulement claim on all applicable grounds fails.

54.  In the absence of oral evidence from him, the Board is unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to Pakistan. The Appellant has failed to prove his claim(s) to the required low standard.

55.  For the reasons set out above, the Appellant’s claim for non-refoulement protection fail on all applicable grounds.  The Appellant’s appeals are rejected and the Decisions of the Director dated 21 April 2016 and 27 March 2017 are confirmed.”

12.  It is therefore clear to me that notwithstanding the availability of the materials and information about the applicant’s claim in the hearing bundle before it, the Board rejected the applicant’s claim and dismissed his appeal essentially on the basis that without his oral evidence it was unable to determine his claim.

13.  In Re Hidayah [2018] HKCA 595, in allowing the appeal of an applicant against the Board’s decision in rejecting her claim for similar reason, the Court of Appeal held in its judgment 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 analyse 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 in 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.”

14.  In the present case, it was recorded in the Board’s decision that when the applicant was invited to give oral evidence at the hearing, he was told that it was finally his choice to give evidence or not before the Board but that it was the sensible thing to do and that most appellants did so, and that without his oral evidence, the decision on his appeal would be made on the basis of the materials already held by the Board, and that the applicant’s response was to say “the case is as I said” (see [45] and [46] of the Board’s decision).

15.  Having clearly explained to the applicant that without his oral evidence the Board would still decide on his appeal on the basis of the materials already before it, which must have included what the applicant referred to above of “the case is as I said”, ie his NCF, SI and Notice (see [52] of the Board’s decision), it is therefore in my judgment a reasonably arguable ground for the applicant to complaint that the Board had failed to proceed to determine his appeal on the basis of the materials before it, or that if it had done so, it failed to give any or sufficient reasons for dismissing his appeal.     

16.  In the premises and for these reasons I grant leave for the applicant to apply for judicial review of the Board’s decision on this ground.

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