"I" v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 635/2017

[2018] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 635 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 apply for Judicial Review granted.

2. An extension of time for the application for leave to apply for Judicial Review.

Observations for the Applicant:

1.  The applicant is a 23-year-old national of Pakistan who entered Hong Kong illegally on 6 July 2016 but was arrested on the same day by the police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 14 July 2016 on the basis that if he returned to Pakistan he would be harmed or killed by terrorist groups of Lashkar-e-Jhangvi (“LeJ”)/Taliban for having fought against them when he was a soldier of the Pakistani Army, and by the Pakistani Army or Government for being a deserter and/or being charged for treason for seeking political asylum in Hong Kong.  

2.  The applicant was born and raised in Mirpur, Azad Kashmir, Pakistan.  After leaving school and at the age of 19 he joined the Pakistani Army in Azad Kashmir in 2014.  After undergoing training he was first posted to the 34AK Unit in Attock City, and then in January 2016 to Northern Waziristan to fight the Taliban terrorists.

3.  One night his unit attacked one of the LeJ/Taliban’s camps in Northern Waziristan killing many of the terrorists including one of the camp commanders and successfully captured their camp.  However, a few days later the terrorists attacked his unit and recaptured their camp, during which all the applicant’s unit was captured while all his comrades were killed.  The applicant was then taken to an unknown place where he was interrogated by the terrorists about his unit 34AK and when he refused to divulge any information, he was tortured by punching and kicking and with some of his teeth and finger and toe nails being pulled out as well as some of the bones of his hands being crushed by the butts of rifle by the terrorists until he would pass out from the pain of such torture.

4.  Eventually the terrorists left and the applicant was recused by his unit and taken to the hospital.  After his discharge the applicant was given 15 days off when he decided to visit his family in Mirpur.  However, the bus on which he was travelling was ambushed and machine-gunned by the Taliban terrorists during which some of the passengers were killed and the applicant suffered cuts to his hands by broken glasses.  After the attack the applicant returned to his station and was taken to the hospital for medical treatment.

5.  After his discharge from hospital the applicant received news that his mother was ailing and was therefore given 25 days’ home leave to visit her.  Shortly after his bus left a bomb exploded in the bus terminal killing many people there and the news reported that it was caused by the Taliban terrorists.

6.  Upon arriving home the applicant received a phone call from the terrorists who demanded that he disclose information of his unit to them and threatened to kill him if he refused to do so.  The applicant therefore believed that the terrorists were after him in the two earlier attacks and that they were able to track him by phone.  He therefore became very fearful for his life and as he no longer wanted to be in the army or to report back to his unit, he was advised by his close friend that he should therefore leave Pakistan for his own safety, which he did on 9 June 2016 when he flew to China where he stayed for a month before sneaking into Hong Kong on 6 July 2016 when he subsequently lodged his non-refoulement claim, for which he completed his Non-refoulement Claim Form on 12 October 2016 with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 18 November 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 of the HKBOR (“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”).

8.  On 5 December 2016 the applicant filed his appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), for which he attended a total of three hearings with assigned Duty Lawyer on 6, 9 and 16 of March 2017 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  At the beginning of the hearing on 6 March 2017 his Duty Lawyer sought medical examinations of the applicant by a forensic psychiatrist and a forensic pathologist as to his mental and/or emotional problems which could affect his ability to give evidence.  On 19 May 2017 his application for medical examinations was refused and his appeal was also dismissed by the Board which confirmed the Director’s decision.

The Board’s decision

9.  The Board’s refusal of the application for medical examinations was essentially on the basis that it might not assist the applicant or advance his case, and that it would cause delay to the hearing by at least several months.

10.  As for the applicant’s substantive claim, the Board considered his fear of harm from the state actors which are the Pakistani Army and/or the Government separately from the non-state actors which are the LeJ/Taliban Terrorists.

11.  For the risk of harm from the state actors which are the Pakistani army or government, the Board accepted that the applicant went absent from the army without leave which would invariably be considered to be a criminal offence by the authorities, but found no evidence indicating a real risk that he would be charged accordingly, as it noted that the evidence showed that the applicant had been shown compassion and sympathy in his plight.  

12.  The Board then proceeded to find that if the applicant were indeed to be charged with desertion, the evidence did not show that defendants in military courts in Pakistan routinely fail to receive a fair trial, nor indicate any aggravating matters which might lead to the applicant receiving an unfair trial or that there would be a real risk of a flagrant denial of a fair trial, hence it did not consider it necessary to consider that the applicant would inevitably be found guilty and would inevitably face detention in dreadful conditions in jail in Pakistan, and concluded that the applicant had failed to show a genuine and substantial risk that he would be charged with the offence of desertion and that he would be detailed in conditions contrary to BOR 3 in a Pakistan prison.

13.  As for the applicant’s fear of risk of harm from the LeJ/Taliban terrorists for seeking revenge because his army unit had killed one of their leaders, that they wanted information from him about his unit 34AK, and that all army personnel must necessarily be on the hit list of the Taliban, the Board found that the applicant had failed to show that he is a person of interest to the LeJ or Taliban terrorists given that he was a raw recruit who could not have amassed the kind of knowledge and information of his unit or the military that the terrorists were looking for, that there were discrepancies and inconsistencies in his evidence on the issue of being tortured by the terrorists for information, and that there was no reason for the LeJ to release him unless they were satisfied that there was nothing more he could tell them, and concluded that it would not accept that the LeJ/Taliban terrorists would continue to pursue or threaten or harm the applicant after having decided to release him earlier in 2016.

The applicant’s grounds for judicial review

14.  On 18 September 2017 the applicant filed his Form 86 for leave to apply for judicial review initially of both the decisions of the Director and the Board, and in it he put forward the following grounds as amended and summarized in his skeleton submission for his intended challenge of only the Board’s decision:

(1) that the Board misdirected itself in law as to the threshold of likelihood required for establishing a “real risk of harm”;

(2) that the Board engaged in assumptions and speculations in assessing the applicant’s risk of harm and its conclusions were thus Wednesbury unreasonable;

(3) that the Board failed to properly consider COI and evidence of similarly situated persons in Pakistan which amounted to irrationality and illegality; and

(4) that the Board failed to order medical examinations of the applicant to establish past torture and/or any mental or other impairments connected to past torture.

Extension of time

15.  The applicant was of course out of time when he filed his leave application as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires such an application be filed within three months from the date when grounds for the application first arose unless the Court considers there is good reason for extending the period within which the application shall be made, which means in the present case on or before 19 August 2017, and the applicant was therefore late by about a month.

16.  In his supporting affirmation of the same date the applicant did seek the court’s indulgence and sought to attribute the one-month delay in filing his application to include the time taken to apply for legal aid to challenge the Board’s decision, that it was refused only on 16 August 2017 when his present solicitors agreed to act for him on pro bono basis to first apply for an anonymity order which was granted on 4 September 2017, that it was difficult to get instructions from him as he was then being detained at Castle Peak Bay Immigration Centre (“CIC”) and which required a proper interpreter to assist, and that his grounds for his intended challenge were difficult and complex that his application could only be filed on 18 September 2017.

17.  What may constitute a good reason for extending time is said to be a multi-faceted question the answer to which depend on the circumstances of each case including factors such as length of the delay, explanation for the delay, merits of the substantive application, prejudice and questions of general importance: see Re Thomas Lai [2014] 6 HKC 1, and AW v Director of Immigration & Anor CACV 63/2015, 3 November 2015.

18.  While the delay of the applicant may not appear to me inordinate, I propose to next proceed to consider other relevant factors with the most obviously significant one to be taken into account in the circumstances the merit of his intended challenge represented by his proposed grounds, of which I shall next consider, starting with the first two grounds which can be considered together.

(1)     Wrong legal test for “real risk of harm”

19.  For ground (1) in which the applicant complains of the Board applying the wrong legal test to establish “real risk of harm” in assessing his risk of harm arising from the prosecution by the Pakistan’s Army or Government for desertion from the Army, when the Board found no evidence indicating of any such real risk, and that even if the applicant were so charged, the evidence did not show that defendants in military courts “routinely” fail to receive a fair trial, and hence there was no need to consider if the applicant would inevitably be found guilty and that he would inevitably face detention in dreadful conditions in Pakistani jail, Mr Shek for the applicant submits that it is wrong for the Board to require the applicant to demonstrate that the risk of harm he faced must be personal and inevitable, as it is settled law that the threshold of likelihood for establishing a “real risk” is “‘more than a mere possibility’ but not needing to be ‘highly likely’”, and whilst this threshold would discard cases where the risk of harm is merely remote or insubstantial, when assessing persecution risk, the object test “is not so stringent as to require a probability of persecution”, as what is required is that there is a “reasonable chance that persecution would take place”, or whether the applicant “has good grounds for fearing persecution for one of the reasons specified …”, and as such, the Board has applied the wrong test in deciding whether the applicant was under a “real risk of harm”: see Adjei v Canada (Minister of Employment and Immigration) [1989] 2 FCR 680, 1989 CanLII 5184 (FCA), §§5 – 7; TK v Jenkins & Anor [2013] 1 HKC 526, §28, and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412.

(2)     Irrational assumptions and speculations

20.  It is further submitted by Mr Shek that the Board’s assessment of whether the applicant would be at risk of being prosecuted and convicted for desertion was based on irrational assumption and speculations because they were premised upon the Board’s own assumptions of the Pakistan authorities’ prosecution considerations, the Pakistan’s military court’s considerations of the evidence and application of their military law, and the Pakistan laws’ sentencing principles, and hence there was no rational or evidential basis for the Board to come to the conclusion that the Pakistani authorities would not prosecute the applicant for desertion, and that similarly there was no such basis for the Board to conclude that even if the applicant were prosecuted that he would not be convicted, and that there was no basis for the Board to take the view that even if convicted the applicant would not be subject to capital punishment.  In so doing Mr Shek submits that the Board had engaged in making its own assumptions, conjecture, and speculations as to what ought to happen if the applicant returned to Pakistan, and had therefore erred in this regard: see TI v Winston Leung, unreported, HCAL 66/2015, 3 October 2016.

21.  In its decision the Board gave the following reasons in arriving at its finding of no evidence indicating a real risk that the applicant will be charged for desertion upon his return to Pakistan:

“ 84. In relation to the possibility or likelihood that the Appellant will be charged with desertion, all the available evidence was considered. It was noted that the evidence showed that the Appellant had been shown an amount of compassion and sympathy in his plight:

(i) the Appellant was given 15 days time off to visit his family after his discharge from hospital;

(ii) the Appellant was given 25 days of compassionate leave to visit his sick mother;

(iii) the Appellant’s superior officer (his Captain) advised him to take precautionary measures whilst traveling, which showed that the superior officer was concerned for the safety of the Appellant. In addition, no doubt the senior officers in the army will take into consideration that the Appellant was a teenager aged 19 when he joined the army fresh from school. They might also take into consideration his suffering at the hands of his LeJ captors. On the other hand, the Appellant provided hearsay evidence that the army had threatened to arrest his brother in order to force his parents to pressure the Appellant to return to Pakistan. Hearsay evidence is admissible, but subject to weight. Hearsay evidence can be received by the Board, but may not carry any weight mainly because it cannot be tested in a Hearing, or help the Appellant to establish those facts, or show the truth of the matters alleged. The assertion that the military had threatened the Appellant’s family was carefully considered in the round.

85.     After deliberation, the Board can find no evidence indicating a real risk that the Appellant will be charged with the criminal offence of desertion. Even if the Applicant is charged with the criminal offence of desertion, there are many compelling mitigating factors in his case.”     

22.  There was however no evidence before the Board to suggest that those compassion and sympathy shown to the applicant before his desertion would form part of the military’s decision as to whether or not to charge him for desertion or whether they would form part of the mitigating factors in his case, and I agree that it is reasonably arguable by the applicant that the Board was wrong to assume that because he had been shown such compassion and sympathy before his desertion that therefore there is no real risk of him being charged for desertion upon his return to Pakistan or that even if he is so charged for desertion that what happened to him in the past would provide compelling mitigating factors as irrational assumptions and speculations.

(3)     Failure to consider COI and evidence of similarly situated persons properly

23.  It is also submitted for the applicant that the Board had erred in law that the applicant must show that he was personally at risk if charged for desertion that he would not receive a fair trial, and that if convicted that he would face ill-treatments in the Pakistani prison system, that in rejecting the applicant’s claim the Board considered the COI evidence as only showing a general condition but not his own particular circumstances, as it is well settled that the correct approach to a personal risk of harm can be established by way of evidence of similarly situated persons in that particular country as shown in the COI, in particular in a report of the UN Special Rapporteur on Torture by Nigel Rodley upon which the applicant relied to show that the Pakistani military courts would fail to uphold the basic standards of a fair trial and due process, including confessions obtained under torture as well as life-threatening detention conditions and incommunicado detention in Pakistan, the matters of which the Board in fact did not dispute and whose work it did express to show great respect. 

24.  The relevant parts of the Board’s decision on this issue can be found in the following paragraphs:

“ 86. If, in the event the Appellant is charged with desertion and will face trial, the COI showed that some defendants do not always face a fair trial in a military court. It is possible that the Appellant will face a trial process with shortcomings, but the evidence falls short of establishing a real possibility of a thoroughly unfair trial. The evidence does not show that defendants in the military courts of Pakistan routinely fail to receive a fair trial. The evidence adduced in this case did not indicate any aggravating matters which might lead to the Appellant receiving an unfair trial, and does not show a show a real risk that there will be a real risk possibility of a flagrant denial of a fair trial. The high threshold referred to in Ubamaka has not been reached. Consequently, the Board does not consider it necessary to consider that the Appellant will inevitably be found guilty and will inevitably face detention in dreadful conditions in jail in Pakistan.

87. The consideration and assessment of prison conditions in Pakistan is based on the evidence and COI adduced. That evidence again is founded not on the Appellant’s own particular circumstances but on the conditions faced generally by persons incarcerated in the Pakistani prison system. Whether the treatment of the Appellant will be sufficiently serious to constitute torture or inhuman or degrading treatment in terms of BOR3 must depend on the circumstances of each case and the personal characteristics of the Appellant. It must be shown that the level of suffering will be more severe than what would be considered normal suffering by being detained legitimately. The assessment of prison conditions was assessed on BOR3 non-refoulement protection principles. The burden of establishing a BOR3 claim lies with the Appellant. The requirements of establishing a BOR3 risk as laid down by the CFA in Ubamaka has been followed.

…

90. It is for the Appellant to establish that there are substantial grounds for believing that there is a real risk of ill-treatment reaching the requisite degree of severity if he is incarcerated in prison in Pakistan. The Appellant has not adduced any such evidence. Even if the Appellant can adduce COI showing that there is routine or frequent ill-treatment or misconduct in prison, it would not be sufficient to reach the requisite level of a real risk. The Appellant has not shown that he will at real risk because of his specific circumstances as a convicted deserter from the army. The Appellant has not shown that at real risk because a convicted deserter from the army will inevitably or very likely face general and consistent violence in a Pakistani jail. The Appellant will not succeed unless he can show a real risk that what he would face if detained in prison will be so unsatisfactory so as to constitute inhuman or degrading treatment within the meaning of BOR3. In refoulement cases it will be necessary for the Appellant to show that the ill-treatment must be necessarily serious, such that it will be ‘an affront to fundamental humanitarian principles’.

91. Having considered all the evidence adduced, the Board finds that the Appellant has failed to show a genuine and substantial risk that he will be charged with the offence of desertion; and failed to show a genuine and substantial risk that he will be detained in conditions contrary to BOR3 in a Pakistani prison.”

25.  I agree with Mr Shek that as it is well settled that the correct approach to a personal risk of harm can be established by way of evidence of similarly situated persons in that particular country as shown in the COI: see Salibian v Canada (Minister of Employment and Immigration) [1990] 3 FC 250 (CA), 1990 CanLII 7978 (FCA); Batayav v SSHD [2004] ACD 5, and as it was held by the Court of Appeal in TK v Jenkins, supra, that proving the risk of torture, that was the likelihood or probability of the torture claimant being subjected to torture if he were to be expelled, returned or extradited to a particular country, required showing ‘more than a mere possibility’ but not that it would be ‘highly likely’, and that while the risk of torture must go beyond mere theory or suspicion, it did not have to meet the test of being ‘highly probable’.

26.  I agree that in the premises it is reasonably arguable by the applicant that the Board had erred in law in requiring him to go beyond showing that he belonged to a particular class of persons, ie an army deserter in Pakistan, that this particular class was routinely ill-treated in prison by way of COI and that he would himself be subjected to such ill-treatment.

(4)     Failure to order medical examination

27.  Under this ground the applicant submits that the Board had failed to adhere to the high standard of fairness in refusing his application for a medical examination by a forensic psychiatrist and a forensic pathologist for the reasons that it would be of little assistance to the Board and may cause delay, but then proceeded to consider that there were discrepancies and inconsistencies in his evidence and doubted his credibility when such medical report may explain his difficulties in giving evidence and may provide explanation to any inconsistencies and/or contradictions in his evidence, as high standard of fairness in considering his non-refoulement claim would require the Board to allow the applicant to adduce medical evidence in support of his claim before arriving at its conclusion about his credibility.

28.  In dealing with this application the adjudicator had had the benefit of hearing evidence from the medical officer Dr Tan of the CIC who had treated the applicant, and had for her consideration the full medical records of the applicant at CIC as well as the submissions made on his behalf by his lawyer at the hearing before arriving at her decision in refusing the application for the detailed reasons set out in paragraphs 8 – 27 in the Board’s decision.  It was clearly an exercise of discretion by the adjudicator as primary decision-maker after evaluating all the facts and evidence made available to her at the hearing, and I do not find any basis for the complaint that the decision was irrational or Wednesbury unreasonable, or that it can be reasonably arguable by the applicant in his intended challenge.

29.  In the premises and on ex parte basis I find that only the first three grounds of the applicant are reasonably arguable, and accordingly I extend time to his leave application and grant leave to him for judicial review of the Board’s decision.

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