AM v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 102/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 102 OF2012

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JUDGMENT

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Introduction

1.  This is an application for judicial review by a person who has made a claim under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) asserting, in accordance with Article 3.1 of the Convention, that “there are substantial grounds for believing that he would be in danger of being subjected to torture” if he is returned to his country of origin, which is Pakistan.  He made his claim by a written representation dated 20 August 2009.  On behalf of the Director of Immigration (“the Director”) his claim was processed and assessed by an Acting Chief Immigration Officer of the Torture Claim Assessment Section of the Immigration Department (“the Assessor”) who, by a Notice of Determination dated 20 January 2012, concluded that the applicant’s claim under the Convention was not established.  The applicant then petitioned to the Chief Executive of the Hong Kong Special Administrative Region (“the Chief Executive”) under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region (“the Basic Law”).  The applicant’s petition was subsequently heard by an Adjudicator appointed to determine petitions arising from failed Convention claims and vested with delegated power from the Chief Executive to do so.  The Adjudicator determined the petition on the papers without calling for an oral hearing.  On 27 February 2012 he dismissed the petition.

2.  Thereupon, the applicant applied for leave to judicially review the decisions of the Director and of the Adjudicator.  The application for leave to apply for judicial review was filed on the 6 August 2012 but before it was filed an application for an anonymity order was made in respect of the intended application for leave and that application for an anonymity order was granted by Lam J (as he then was) on 24 July 2012.  The application for leave was granted by me on 8 October 2012.

3.  In response to the application for judicial review the 1^st respondent filed an affidavit by the Immigration Department Officer who was the applicant’s case officer and the person who determined the applicant’s claim, and an affirmation by an Assistant Secretary of the Security Bureau which provided helpful details on the practices and procedures involved in the screening of torture claimants.

4.  Throughout this judgment I refer to the decision of the Director as the decision of the Assessor, which in reality it is.

The Convention

5.  The Convention was adopted by the General Assembly of the United Nations on 10 December 1984 and extended to Hong Kong in 1992 and continued to apply to the Hong Kong Special Administrative Region (“HKSAR”) after 1 July 1997. Article 3(1) of the Convention requires State Parties not to “expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

6.  The Convention itself defines what is meant by the word torture. Article 1.1 provides as follows:

“For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person 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, when 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.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

7.  Article 3.2 provides:

“For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

8.  It has been said that Article 3.2 imposes upon the decision‑maker “a positive duty.  It is the duty to conduct an investigation, taking into account all relevant circumstances.”[1] However, the manner in which each State Party complies with its Article 3.2 Convention obligation is a matter left to it to decide.[2]

The Screening Process

9.  In compliance with its obligations under the Convention the HKSAR put in place an administrative system for the screening of claims made under the Convention.  This administrative policy has necessarily had to change as it responded to an evolving jurisprudence in this area and the enhanced screening process to which this applicant was subjected was implemented by the Director on 24 December 2009.  This enhanced screening process, now superseded, consisted of two tiers.  The first tier, which still exists, is a determination of the claim by an Assessor appointed and trained by the Director.  Should the Assessor, on behalf of the Director, find the claim not established then the claimant had a right to petition the Chief Executive under Article 48(13) of the Basic Law.  This was the second tier.

10.  This screening process, hitherto an entirely administrative arrangement, has now been replaced by a statutory based one.  In July 2012, legislation was enacted which had the effect of replacing the administrative regime previously in place.  This legislation, the Immigration (Amendment) Ordinance, came into operation on 3 December 2012.  It creates a statutory framework to replace the current enhanced administrative mechanism for determining torture claims, and includes the establishment of the Torture Claims Appeal Board to hear appeals against refusal decisions on claims.

11.  However, the prevailing arrangements for the screening of torture claims at the time that this applicant made his claim was the previously mentioned administrative-based, two-tier enhanced screening process.  The first tier determination, the Assessor’s determination, is made by an officer of the Torture Claim Assessment Section of the Immigration Department.  In processing a Convention claim these officers will hold interviews with a claimant and receive from him a completed questionnaire and other documentation which he wishes to produce to the case officer.

12.  Should the claim be rejected then the claimant could, if he so chose, proceed to the second tier of the screening process which, as I have said, was to petition the Chief Executive under Article 48(13) of the Basic Law.  Article 48(13) provides:

“The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: …

(13)   to handle petitions and complaints.”

13.  This duty of determining the petition was performed by Adjudicators appointed by, and exercising the delegated authority of, the Chief Executive.  The Instrument of Delegation by the Chief Executive simply delegated to the person “for the time being holding the office of Adjudicator (Torture Petitions) the power and function conferred on me by Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to handle petitions which relate to claims made under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment with immediate effect”.  In this case the 2^nd respondent was appointed under an Instrument of Delegation by the Chief Executive dated 1 November 2009 and it was pursuant to this delegated authority that the 2^nd respondent performed his adjudication role on this applicant’s petition.

14.  Throughout the first tier screening process the claimant is legally represented by a lawyer provided by the Duty Lawyer Service.  The Duty Lawyer Service legal representation continues through the second tier, the adjudication process, should there be one, but ceases when that process comes to an end.  If the claimant’s petition is dismissed by the Adjudicator, then the claimant will have exhausted all his remedies under the processing scheme.  His only option thereafter is to apply for judicial review in the High Court.  Should an unsuccessful claimant wish to avail himself of this remedy and wish legal representation to do so then he must apply to the Director of Legal Aid or fund his legal representation himself.

Determining a Convention Claim

15.  In Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 the Court of Final Appeal said that in discharging his obligation of procedural fairness, a person determining a Convention claim had to display a high standard of fairness.  What will satisfy this obligation will inevitably vary from case to case and because it is case specific it does not lend itself, as a legal principle, to exhaustive definition.  But, from the Chief Justice’s comments at paragraph 54 of Prabakar it is clear that it does not involve adopting “an attitude of sitting back and putting the person concerned to strict proof of his claim”.  That more was required of the Director was made clear by the Court of Appeal in T K v Jenkins & Anor [2013] 1 HKC 526 at paragraph 25 when the Chief Judge said:

“The exercise of determining whether a claim made under art 3(1) of the CAT is valid must be one of ‘joint endeavour’.” [3]

16.  Clearly, what is contemplated by these remarks is that as and when the circumstances so require the Director, and the Adjudicator, will take the initiative in enquiring into the applicant’s claim.  They do not sit back and passively preside over an adversarial process.  Rather they are more akin to inquisitors [4]  and consequently a degree of pro-activity is expected and will be required of them.[5]  To again quote the Chief Judge in T K v Jenkins & Anor [2013] 1 HKC 526, at paragraph 22:

“High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.” (Emphasis added)

17.  As was made clear by the Court of Final Appeal in Prabakar at page 207D-E there may be a number of sources of such material:

“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.”

18.  What the courts are saying in these passages is that a claimant, by virtue of his background and present circumstances, may be in a disadvantageous position in presenting to the Director the information or materials that he may need to establish his claim or that the Director may need to process it and it is in that sense that the processing of the claim becomes one of joint endeavour.

19.  Nevertheless, there will be limits to what even high standards of procedural fairness will require of the Director, though of course whether those limits have been reached will depend on the facts of each case.  In T K v Jenkins & Anor [2013] 1 HKC 526 the Chief Judge, whilst recognizing the fact sensitive nature of this question, said at paragraph 24:

“There may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.”

20.  It is also important to recognize that the claimant cannot, after filing his claim, simply sit back and expect the Director to do everything for him.[6] He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim.  Furthermore, he enjoys the benefit of legal representation to assist him in establishing it.  He clearly must play a pro‑active role in presenting and substantiating it and assisting the Director to process it.  This point was made by the Chief Judge in T K  v Jenkins & Anor [2013] 1 HKC 526 at paragraph 23:

“Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

21.  One must be careful not to allow the phrase “joint endeavour” to blur the quite separate roles played by the claimant and the Director.  Sight must not be lost of the fundamental fact that the claim is that of the claimant and it is he who has ultimate responsibility for it – a responsibility which remains with him throughout the processing of it.  That the burden of proof always remains on the person claiming the protection of Article 3 is apparent from the comments of the Chief Judge in T K v Jenkins & Anor [2013] 1 HKC 526 case at paragraphs 30-31:

“30. … In deciding whether there are ‘substantial grounds for believing’ that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact … The burden lay with applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).

22.  The Director, on the other hand, has a reactive role.  Once he receives the application he will be in a position to assess what further information he will need in order to process it.  The Director’s role is not to assist the claimant in establishing his claim – that is the role of the claimant’s lawyer.  Rather, the Director’s role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim.  When the time comes for the Director and the Adjudicator to make findings of fact in the course of determining the claim or deciding the petition they apply the civil standard of the balance of probabilities.[7]

23.  This brings me to a consideration of the second tier and the role of the Adjudicator.  The 1^st respondent has exhibited a number of documents explaining the enhanced screening process.  There are three particularly important documents amongst those exhibited.  They are the “Guidelines for Handling Claims Made under Article 3 of the Convention against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment” (“the Guidelines”), which is relevant to the work of the Assessors, the “Brief Notes for Adjudicators (Torture Petitions) on Handling Petitions Lodged by Unsuccessful Torture Claimants under Article 48(13) of the Basic Law” (“the Brief Notes”) and the “Practice Direction for Adjudicators (Torture Petitions)” (“the Practice Direction”).  The Guidelines provide general background information on the Convention and of the high standard of fairness required of Assessors and Adjudicators and explain how the Adjudicator may determine a petition without an oral hearing.  In this respect the Brief Notes provide as follows:

“The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with where the Adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the Adjudicator will take into account the circumstances of the case, including but not limited to considerations that all relevant evidence has been presented and the determination of the facts shall be based on clear and cogent reasons.”

24.  The Practice Direction in paragraph 6.1 states:

“Where the circumstances warrant, the Adjudicator may conduct an oral hearing on a petition.”

25.  Thus, under the enhanced screening process the Adjudicator was not necessarily required to, and it appears usually did not, hold an oral hearing of the petition.  However, the Brief Notes make clear that where credibility issues are raised then an oral hearing should normally be conducted.

26.  The issue of oral hearings has come before the courts.  The relevant legal principles are thoroughly discussed in the judgment of Au J in ST v Betty Kwan & Anor [2013] 3 HKC 87 and I gratefully adopt the law there set out.  In a nutshell it is that there is no absolute right to an oral hearing and there is no systemic procedural unfairness in the practice of Adjudicators in disposing of selected petitions on the papers even though they do not inform the petitioner that they have decided to do so and even though they do not provide their reasons for this decision before they determine the petition on the papers.

27.  But, the question remains of what is the role of the Adjudicator in determining the petition.  It would not appear to be an appellate role as his duty is not sourced from a statutorily created appellate procedure.  His duty is sourced from a duty imposed by the Basic Law on the Chief Executive and delegated by him to the Adjudicators.  However, some assistance in ascertaining the role of the Adjudicators can be gleaned from the following practices and procedures that are laid down for oral hearings in paragraph 9.2 of the Practice Direction:

“In general, oral hearings will proceed as follows:

(a) the Adjudicator will give a short introduction and, if the Petitioner is not legally represented, confirm that the Petitioner can understand the interpreter (where applicable) and briefly explain the sequence of the proceedings to him including the fact that he may or may not testify as he wishes, but that if he chooses to testify he will be asked questions by the Director’s representative;

(b) the Petitioner may give oral evidence and may then be cross-examined by the Director’s representative;

(c) the Petitioner may then be re-examined by his own representative, or clarify on his own any ambiguity arising out of cross-examination;

(d) steps “(b)” and “(c)” are repeated if witness(es) are to testify on behalf of the Petitioner;

(e) if the Director has witness(es), they will testify, then be cross-examined and re-examined as required;

(f) the Director’s representative may make a closing speech;

(g) the Petitioner or his representative may make a closing speech;

(h) the Adjudicator may deliver a Decision of the petition at the end of the hearing ex-tempore, or may “hand down” his written Decision to the parties at a later date, usually by post or he may deliver his Decision orally to the parties at a date to be announced.”

28.  All of these matters suggest to me that, in legal terms, a determination of a petition under Article 48(13) involves a rehearing of the matter determined by the Assessor and not an appeal from the Assessor’s decision.

29.  On this issue I derive support from the Court of Appeal’s decision in Kaur v Director of Immigration [2001] 1 HKC 666 where the Court of Appeal characterised the petition process under Article 48(13) as involving considering afresh the original decision.

30.  A rehearing can take different forms.  It can take place just on the papers or it can involve the calling of witnesses.  Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence.  But, this will not always be the case.  The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it.  The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called.  If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim.  This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.

The Role of Judicial Review

31.  Of course, on a judicial review the role of the High Court is not to determine the merits of the applicant’s failed Convention claim but rather to ensure that there has been no deficiency in the process that the applicant has undergone which has resulted in his claim being refused:

“… the court does not sit on appeal from the adjudicator’s decision. It only plays a supervisory role in the judicial review.” [8]

32.  How the Court performs this supervisory role was explained at page 204H of the Prabakar judgment when the Court of Final Appeal said of the Secretary for Security’s decision to deport after rejecting a Convention claim:

“… the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.”

I have discussed earlier in this judgment what the Court of Final Appeal meant by “high standards of fairness”.

33.  The issues that will usually arise in applying judicial review principles to the processing of Convention claim were explained by Lam J in T K v Jenkins at paragraph 87:

“In the context of a judicial review of a decision of an adjudicator, the crucial issues are: whether the adjudicator committed any error of law in his interpretation of the CAT; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; whether the substantive decision satisfied the enhanced Wednesbury test.”

34.  The “enhanced” Wednesbury test is simply an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision.

The Applicant’s Convention Claim

35.  The applicant comes from Pakistan which is a Muslim country the majority of whose population are followers of Sunni Islam.  In 2004, when he would then have been 29 years of age, the applicant converted to Shia Islam.  Within Pakistan there is conflict between followers of Sunni Islam and followers of Shia Islam.  This sectarian violence is well recognised and well documented.

36.  The applicant asserts that since his conversion he has been a victim of this sectarian violence, specifically by three Sunni organizations, namely Sipah-e-Suhaba, Lashkar-e-Taiba and A1-Qaeda.  In his claim he mentioned an assault in 2004 where he was beaten at a bus stop by Sipah‑e‑Suhaba followers. This public attack, which was targeted at the applicant, left him with “painful effects” [9] which he feels to this day.

37.  He was further victimized in a less personal attack when a prayer hall he was attending was bombed.  The wounds he suffered were not serious but he does believe that as a result of this bombing “his memory has since been weakened and deteriorated”.[10]

38.  The applicant maintains that between 2004 to 2008, and indeed to the present day, sectarian violence continues in Pakistan and followers of Shia Islam are at risk of persecution from followers of Sunni Islam because the latter believe that they will go to heaven if they kill a Shia follower.

39.  His first attempt to flee Pakistan because of his religious persecution occurred in August 2008 when he travelled to Oman in the hope of seeking protection there.  But, such protection was not available and as the Omanis are followers of Sunni Islam it was not safe to remain there.  In November 2008, he returned to Pakistan.

40.  In June 2009, the applicant entered a marriage arranged by his parents to a woman who was a follower of Sunni Islam.  His parents hoped he would convert back to Sunni Islam.  However, the applicant refused.  He and his wife resided with his wife’s parents and whilst so doing the applicant received threatening phone calls.  This prompted his father‑in‑law to advise him to seek protection in Hong Kong.

41.  This the applicant did and through the arrangements of an agent he entered China where he remained for nine days before illegally entering Hong Kong on 17 August 2009.  After his arrival the applicant was arrested by police and when, on 19 August, he was referred to the Immigration Department he made his Convention claim in a document entitled “Grounds for non-removal” dated 20 August 2009.  On 25 August 2010 the Director served on the applicant a Convention Claim Questionnaire which the applicant completed on 4 May 2011 with the assistance of a lawyer from the Duty Lawyer Service.  He subsequently attended interviews in relation to his claim on 5 July 2011, 24 August 2011 and 12 December 2011. In his December interview the applicant made three verbal requests for a medical assessment as he claimed he was suffering from pain and forgetting things easily.  On 16 August 2011 the Duty Lawyer Service submitted to the Director on behalf of the applicant a letter with nine pages of supporting documents.

42.  The applicant maintains that notwithstanding his departure from Pakistan he still remains a target of Sunni persecution.  He says that his family is harassed by Sunni followers who demand to know his whereabouts and who issue death threats.  His family is abused and his father has been assaulted.  As recently as July 2011 his mother and father were attacked at their home by persons from the three Sunni organizations previously mentioned.  The father sustained a broken leg and the mother head and internal injuries.  The applicant’s wife, who is living with her parents, has also been threatened in order to get her to provide information about the applicant.

43.  The applicant maintains that he cannot rely on the protection of the police as bribery is needed to obtain police protection and he does not have the money that is needed to pay the bribes.  Moreover, he claims that the majority Sunni followers have political connection with the ruling party.  For these reasons he cannot turn to the police for help.

The Application for Judicial Review

44.  There are five grounds relied upon to quash the two decisions.  These grounds it is said justify an order of certiorari; to quash both the Director’s Determination and the Adjudicator’s Decision.  Two of the grounds are common to both the Director’s Determination and the Adjudicator’s Decision and four of the grounds relate solely to the Adjudicator’s Decision.

45.  The first ground of review is that there was procedural impropriety insofar as there was insufficient inquiry by both the Director and the Adjudicator into country conditions and the seriousness of sectarian violence in the applicant’s country.

46.  The second ground of review is that both the Director’s Determination and the Adjudicator’s Decision are tainted by Wednesbury unreasonableness in that they both reveal an absence of sufficient support for the conclusion reached by both of them that there was no instigation involvement or acquiescence on the part of the State in relation to the issue of whether the harm to which the applicant might be subject should he return home was within the definition of torture in Article 1 of the Convention Against Torture.

47.  The third ground of review is that there were errors of law by the Adjudicator in dismissing the applicant’s petition. The first was when he concluded that the applicant had not established that he was in danger of being subjected to torture on the basis that his suffering in past incidents in Pakistan was minor and failed to meet the minimum level of severity for the purpose of the definition of “torture”.  The second was when he found that the suffering to which he asserted he was in danger of being subjected was not suffering inflicted for any of the purposes specified in the Article 1.1 definition of “torture”.

48.  The fourth ground of review is procedural impropriety in the refusal by the Adjudicator to hold an oral hearing of the petition.

49.  The fifth ground of review is procedural impropriety in the refusal by the Adjudicator to afford the applicant an opportunity for a medical examination despite the request of the applicant to have one.

Discussion

50.  The basis of the applicant’s claim that there are substantial grounds for believing that he would be in danger of being subjected to torture were he to be returned to Pakistan is his decision to change his religious beliefs from those of a Sunni Muslim to those of a Shia Muslim.  Having made that decision some time ago in Pakistan he said that ever since he has been subjected to abuse of one kind or another and has been caught up in sectarian violence in his homeland.  This sectarian violence he has experienced at both a personal level, where he himself has been the target of the violence, and also at an impersonal level where he has suffered, along with other Shia devotees, simply by reason of being members of the Shia religion.  At a personal level there were those who knew of his conversion and who targeted him because of it.  At the impersonal level he has suffered simply as a result of being amongst other Shias when they, as a group, have been the target of sectarian violence.  Thus, his claim that there are substantial grounds for believing that he would be in danger of being subjected to torture is based upon attacks where he personally has been targeted and on attacks where he, as a member of a religious group, has suffered.

51.  The key issue which the applicant has the burden of proving in his Convention claim is that he, personally, is at risk of torture should he return to his home country.  In this respect it is not necessary for me to decide whether the risk of torture ceases to be personal to him if he were only targeted as a result of his religious affiliation rather that because of who he is.  Here, the applicant is claiming that he is targeted because he is AM who is known to have converted to Shia Islam and not just because, as a convert to Shia Islam, he necessarily mixes with other Shia followers and attends worship with them at Shia places of worship and is, therefore, at risk of sectarian violence.

52.  It is also important to understand that in seeking to bring himself within the definition of torture in Article 1 of the Convention he is relying upon the limbs of “punishing him for an act he has committed”, being his act of conversion to Shia Islam, and also the limb of “for any reason based on discrimination of any kind”, namely discrimination of him based upon his conversion to the Shia Islam.

53.  When it comes to satisfying the requirement that this 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”, the claimant accepts that the non-refoulement obligation under Article 3 does not extend to a person who might be risk of pain or suffering inflicted by a non-government entity without the consent or acquiescence of the government.  Rather, the applicant argues that in respect of himself there is such a consent or acquiescence of the government and in so saying he relies on acquiescence in both its traditional and extended form, with heavier reliance on the latter rather than the former. In this respect he is alleging that there has been a breakdown in law and order in his home country resulting in an inability of the citizens to obtain protection from the government through its various authorities – the bureaucracy, the police and other law enforcement authorities and the Court system.

54.  The first question therefore is have the Assessor and Adjudicator properly understood the basis of the applicant’s claim and if so have they fairly analysed and assessed it and are their conclusions Wednesbury reasonable.  In order to answer this question it is necessary to have some understanding of what is meant by the words “with the consent or acquiescence of a public official or other person acting in an official capacity.”

55.  This issue was canvassed by Lam J in T K v Jenkins HCAL 126/2010; unreported, 21 October 2011 [11], a case which also concerned a Pakistan Convention claimant.  In that case the claimant and his friend were involved in a dispute with a private individual over the purchase of some land.  In an argument with this person the claimant’s friend was shot and killed by him.  The claimant was informed by another that his life was in danger and that it would be dangerous for the claimant to seek help from the police.  The killer was a local gangster with police connections and also his brother had political connections.  In this factual context the issue of State acquiescence was raised by the parties and discussed by Lam J in the course of delivering his judgment.  From his judgment I distill the following legal principles which I adopt and apply in this judgment.

56.  The first is the principle laid down in A S v Sweden CAT/C/25/D/149/1999, UN Committee Against Torture, 15 February 2001 at paragraph 8.3:

“The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist to show that the individual concerned would be personally at risk …”

57.  The second principle is that case law extending the concept of State acquiescence that has developed in respect of Article 3 of the European Convention does not apply to Convention Against Torture claims.  The effect of this case law is that there is an implied obligation of non-refoulement “where the danger emanates from persons who are not public officials when the State authorities are not able to obviate the risk by providing appropriate protection”.[12]

58.  The third principle is that there is an exception to the requirement that the torture emanate from a public official.  This derives from Elmi v Australia Communication CAT/C/22/D/120/1998 where it was allowed that torture committed by a quasi-governmental authority in a situation where State authority was wholly lacking would fall within the Convention definition of torture. But, as Lam J pointed out in T K v Jenkins at paragraph 53, the Elmi exception “is a wholly different concept from an exception based on the lack of reasonable State protection”.

59.  The final principle, and the one which is particularly relevant to the circumstances of the case before me, is that a State’s indifference or inaction in response to acts by private individuals can constitute acquiescence.  This principle is derived from paragraph 18 of General Comment No. 2 (24 January 2008) by the Committee against Torture:

“The Committee has made clear that where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-State officials or private actors and they fail to exercise due diligence to prevent, investigate prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the state’s indifference or inaction provides a form of encouragement and/or de facto permission. The Committee has applied this principle to State parties’ failure to prevent and protect victims from gender-based violence, such as rape, domestic violence, female genital mutilation, and trafficking.”

60.  These comments suggest that acquiescence can be active and passive.  An active form of acquiescence is when a State, knowing that acts of torture and ill-treatment are taking place and by whom they are taking place and being able to prevent and punish them, deliberately turns a blind eye to what is occurring. This form of acquiescence involves a conscious decision not to exercise the authority of the State against those committing acts of torture and to withhold the protection of the State from those who are the victims of such torture. This is acquiescence in its original meaning and traditional form.

61.  Passive acquiescence is an extended form of State acquiescence and its true parameters have yet to be considered by our appellate courts.  The comments of the Committee Against Torture would suggest that the following has to be established:

(i)     State authorities know or have reasonable grounds to believe that acts of torture are being committed by non-State officials;

(ii)    State authorities fail to exercise due diligence [13] to prevent, investigate, prosecute and punish such non-State officials;

(iii)   the failure of the State to exercise due diligence  in response to its knowledge or reasonable grounds to believe of the actions of the non-State actors, enables those non-State actors to commit acts of torture with impunity; and

(iv)    the State’s indifference or inaction provides a form of encouragement and/or de facto permission to the non-State actors to commit acts of torture.

62.  It can be seen that this extended form of State acquiescence is in the nature of a failure of the State to discharge normal State functions of providing security to its citizens either generally or in a particular location or of a particular class, or a particular religion etc.  A failure to govern may, of course, have many causes.  These may be anything from insufficiently resourced government departments, inefficiency, corruption, localised factors or political influence.  But, the consequence will be the same, namely a failure by the government to exercise the authority of the State throughout its territory.

63.  But, not every failure to govern will be within the extended concept of State acquiescence.  If, like Lam J at first instance in T K v Jenkins, I allow the comments of the Committee Against Torture to provide me with guidance on the concept of State acquiescence generally, then this extended or passive form of State acquiescence is confined to where there is a failure by the State to exercise due diligence.  This suggests that the State has the capacity to exercise State authority and provide the needed protection but, knowing or having reasonable grounds to believe that acts of torture are taking place, fails in making proper use of that capacity to prevent the torture, punish those responsible and protect its citizens.  This is an avoidable failure to govern and is wholly different from the failed State syndrome where, for whatever reason, the State has lost its ability to govern.

64.  But, again, it is not every failure to exercise due diligence that will be within the extended form of State acquiescence.  The failure must be so gross, or of such a scale, that it enables those persecuting the claimant to do so with impunity.

65.  Finally, the State’s failure to exercise due diligence must have the consequence of providing a form of encouragement or de facto permission to those engaged in acts of torture.

66.  Because this concept is still a developing one, it is not appropriate for me to say more.  I recognize that it exists and must therefore be addressed; and I recognize that in order to address it those involved in making and processing claims must have some idea of its limits.  Those I have attempted to identify.

67.  In respect of this principle of extended State acquiescence it must be emphasized that it in no way lessens the importance of the first principle that the claimant personally be at risk.  Thus, irrespective of how poor a country’s security position may be and irrespective of the extent to which the State, by its attitude and inaction, may have contributed to this situation, the question always returns to the position of the claimant himself and whether it has been established that “there are substantial grounds for believing that he would be subjected to torture” should he be returned to his country of origin.

68.  For the purpose of making their determinations both the Assessor and the Adjudicator accepted the factual basis of the claim as alleged by the applicant and put to one side any issue of credibility in relation to his allegations. The Assessor said:

“Leaving aside the issue of credibility for the moment and taking your claim at its highest based on your assertions, your alleged religious problem does not amount to torture as defined in Article 1 of the Convention for the following reasons:- …” [14]

The Adjudicator said:

“For the purpose of deciding this Petition, I put aside issues of credibility I consider whether, if the Petitioner’s version was taken at its highest, it would support a case for non-refoulement.”

69.  Consequently, both Assessor and Adjudicator must have accepted:

(i)     the applicant was originally of Sunni Islam but converted to Shia Islam and became active as a Shia follower;

(ii)    sectarian violence between Sunnis and Shias occurs in Pakistan;

(iii)   the applicant has been the victim of this sectarian violence where he personally has been targeted and where has suffered simply by virtue of being a Shia and practicing his Shia faith;

(iv)   Sunni followers have not given up their pursuit of him and in quite recent times have shown a persistence in locating him; and

(v)    Sunni followers have inflicted violence on his mother and father in seeking information on his whereabouts and have made threats in respect of him.

These facts are the basis of the applicant’s claim that should he return to Pakistan there are substantial grounds for believing that he would be in danger of being subjected to torture in the purely physical sense of that word.

70.  His assertions that:

(i)     he cannot turn to the police for protection; and

(ii)    the State is under the influence of the extremist Sunni groups which infects the attitude of State authorities, such as the police, to sectarian violence caused by followers of Sunni Islam,

are the basis for claiming that the physical violence to which he would be subject constitutes “torture” in the Convention sense of the word because, by its failure to prevent sectarian violence and to protect those at risk of it, the State has acquiesced to it.

71.  However, in terms of the element of State acquiescence it is, perhaps, more clear as to what the applicant is not alleging than as to what he is.  Despite his somewhat vague claims of political influence I do not understand him to be relying primarily on an allegation that the State is directly involved in the sectarian violence and that his persecution is, therefore, for this reason within the definition of torture for the purposes of the Convention.  Rather, I understand him to be relying on an extended concept of State acquiescence and he may even be pushing the parameters of that concept.  However, for the purposes of this judicial review I shall assume that he is asserting both forms of State acquiescence in the alternative ie that he is saying that the State is deliberately tolerating or condoning the sectarian violence (active acquiescence) or if it is not, then, at the very least, it is aware of it and failing to exercise due diligence in respect of it with the consequence that those committing acts of sectarian violence are able to do so with impunity and the State’s failure to respond to it provides a form of encouragement to those engaged in it (passive acquiescence).

The 1^st Ground of Review

72.  The extent to which the Assessor and Adjudicator have to delve into country conditions depends very much on how each claimant frames his claim. Here, given the way this claim was framed there had to be substantial enquiry into country conditions by both the Assessor and the Adjudicator.

73.  In a nutshell the position here is that the materials on which the Assessor relied are known whilst in respect of the Adjudicator they are not.  This is not satisfactory and it would be far better if both the Assessor and Adjudicator indicated quite clearly, perhaps as an appendix or schedule to their determination and decision, to which country materials they had recourse.

74.  Consequently, in respect of the Assessor’s Determination the applicant argues not that the Director failed to have regard to materials on Pakistan but that he should have had regard to other, additional materials that were available to him for a more complete picture of that country’s conditions.  The argument in respect of the Adjudicator is that I can only assume that he referred to the materials he mentioned in his decision and those materials are clearly insufficient.

The Assessor’s determination

75.  It is apparent from the Notice of Determination and the Assessor’s affidavit to what materials the Assessor had regard in determining the claim.  In his affidavit the Assessor said:

“34. In assessing the Applicant’s torture claim, I have within my general knowledge country information of Pakistan as accumulated from my (by then) around 2-year experience as a case officer of TCAS and digested from, inter alia, the following materials on the general country situation in Pakistan:

i 2010 Country Reports on Human Rights Practices of Pakistan issued by the United States Department of State on 8 April 2011;

ii 2010 International Religious Freedom Report issued by the United States Department of State on 13 September 2011;

iii Pakistan Country of Origin Information Report issued by the United Kingdom Border Agency on 29 September 2011;

iv Articles entitled “Pakistan Ashura bomb kills 22”, CNN, 9 February 2006, “Pakistan curfew after Shia attack”, BBC, 30 January 2007 and “Pakistan double bombing kills Shia Muslims”, BBC, 5 January 2010 on the conflicts between Sunni and Shia in Pakistan; and

v Two articles entitled “”Battling Karachi’s sectarian attackers”, BBC, 3 September 2001 and “At least 27 dead in Pakistan suicide bombing”, BBC, 20 February 2009 and “Q9” of Research Response, PAK31967, Refugee Review Tribunal, Australian Government, 27 June 2007 on actions taken by the Pakistani authorities towards conflicts between Sunni and Shia.

35. In addition, I have also considered country of origin information including, but not limited to the following:

i Website on “Foreign Terrorist Organizations” issued by the United States Department of State on 15 September 2011;

ii “Annex C” to the Pakistan Country of Origin Information Report issued by the United Kingdom Border Agency on 29 September 2011;

iii South Asia Terrorism Portal (SATP) webpage on “Sipah-e-Sahaba Pakistan, Terrorist Group of Pakistan”’

iv Constitution of Pakistan;

v 2010 International Religious Freedom Report issued by the United States Department of State on 13 September 2011;

vi Pakistan Anti Terrorism Act, 1997;

vii Pakistan Anti-Terrorism (Amendment) Ordinance, 1999;

viii Pakistan Anti-Terrorism (Amendment) Ordinance, 2002,; and

ix 2010 Country Reports on Human Rights Practices of Pakistan issued by the United States Department of State on 8 April 2011.”

76.  The question of whether the Assessor should have looked at more materials as part of his researches into country conditions is not helped by pointing to other reports to which he might have referred.  In addressing this ground of review there seems to me to be two issues.  The first is whether the reports were sufficient for the purpose of his enquiry.  His enquiry was focussed on the element of State acquiescence in both its traditional and extended forms and, having considered the contents of the reports for the purpose of the second ground of judicial review, I am satisfied that they were sufficient.  This is not to be confused with the second ground of judicial review.  Under this 1^st ground I am concerned with whether the materials were sufficient for him to reach a view; under the second ground of appeal the question is whether the view that he reached after reading these materials was a Wednesbury reasonable one.

77.  The second issue under this first ground of judicial review is whether, notwithstanding that the materials were sufficient for him to reach a view, fairness nevertheless required that the Assessor should have had regard to other material.  Again, I am of the view that it did not.  The applicant was legally represented and he was in the best possible position to understand how he was presenting his claim and to know what materials would assist him in establishing that case.  If he wanted the Assessor to consider particular materials it was for him to request that be done.

The Adjudicator’s decision

78.  There is no evidence from the Adjudicator and so it is necessary to go first to his Decision.  In paragraph 4 of his decision he said:

“I have taken into consideration all available information, including:

(a) the Questionnaire dated 2 December 2010;

(b) the Record of Interview dated 5 July 2011;

(c) the Record of Interview dated 24 August 2011;

(d) the Record of Interview dated 12 December 2011;

(e) supporting document submitted by Duty Lawyer Service addressing to the Director of Immigration on 16 August 2011;

(f) the Notice of Determination dated 20 January 2012; and

(g) the Notice of Petition dated 1 February 2012.”

79.  In paragraph 14 of his decision he refers to a country guidance case of the UK Immigration Appeal Tribunal dating back to 2002.  He said:

“14. Further to the above, it has been decided in common law that Sunni extremists consisted of only a very small proportion within the large population of Pakistan, in addition to which terrorist attacks are sanctioned by internal criminal law, and hence the illegal acts committed by the Sunni’s were not instigated by, nor acquiesced by the national Pakistani government: see Pakistan CG [2002] UKIAT 05862.”

80.  Apart from his decision, the only other indication of the materials to which he had recourse comes from a paragraph in an affirmation of an Assistant Secretary of the Security Bureau.  That person affirmed:

“54. To facilitate the assessment by an Adjudicator, the Director would be asked to forward all case documents to the Adjudicator. Such case documents included the Notice of determination, the Questionnaire, the Record of Interview(s) and any other documentary evidence submitted by the Claimant (by that stage, the Petitioner) during 1^st tier screening. The Adjudicator could also access objective information such as country information and CAT jurisprudence etc. from various independent sources, where it was deemed necessary.”

81.  Thus, the only country materials to which it is known he had recourse is Pakistan CG [2002] UKIAT 05862.  Ms Chow, for the 1^st respondent, submits that I can infer that the Adjudicator must have referred at the very least to the same materials on which the Assessor relied.  That is not, to my mind, a compelling inference and on something as important as the materials on which the Adjudicator relied to make his decision I am not willing to speculate or make assumptions.

82.  The Pakistan CG decision is concerned with the application of the sufficiency of protection test as expounded by the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 to the position of a claimant who, like this applicant, was the victim of Sunni persecution. The Immigration Appeal Tribunal said at paragraph 14 of its decision:

“14. That entails a consideration of what is required to satisfy the protection test under the Horvath doctrine. It does not require that there should be a guarantee of safety to an individual in the state. No state can hope to provide that. It requires essentially, simply that there be an effective criminal system, operative within the state, which will usually result in criminal process being taken against those who break the law and in respect of which the state does not operate on a discriminatory basis against particular groups of which an applicant for asylum forms part.”

83.  Even if the Horvath doctrine equated to due diligence, the weight to be given to this Tribunal decision would depend on its factual conclusions on Pakistan in 2002 having continuing validity in 2012.

84.  But, as Mr Pun, counsel for the applicant, points out, that is not something that can be assumed and consequently this case could not possibly provide, on its own, a sufficient basis for reaching a conclusion in 2012 as to the current country conditions for Pakistan.

85.  I conclude that the Adjudicator has failed to make adequate enquiry into country conditions.  I quash the Adjudicator’s decision.

86.  Under this ground of review the complaint against the Adjudicator succeeds but the complaint against the Assessor fails.

The 2^nd Ground of Review

87.  This attacks both the Assessor’s and Adjudicator’s decision on the basis that their conclusions that there was no instigation, involvement or acquiescence on the part of the State is Wednesbury unreasonable.

88.  For the purposes of this judicial review I have been provided with the US Department of State’s 2010 Country Report on Human Rights Practices and 2010 International Religious Freedom Report and the United Kingdom Border Agency’s 2011 Information Report.

89.  I note that the materials on which the Assessor relied are not part of the documents bundle but are included in the List of Authorities.  That cannot be right.  The materials on which the Assessor relied for his determination should be included in the documents bundle as they are materials relevant to the making of his determination.

90.  Not all of the materials on which the Assessor relied have been placed before me but for the purpose of addressing this ground of review I accept that there are in place the laws to which the Assessor referred and shall focus my attention on the three independent reports on which he relied, namely the two US Department of State Reports and the UK Border Agency Report.

The Assessor’s determination

91.  In the course of considering whether the applicant’s claim amounted to torture the Assessor dismissed the possibility that there was active involvement by public officials in the attacks which the claimant mentioned or even active acquiescence in those attacks.  The Assessor noted that the groups responsible for the attacks are regarded by the Pakistan Government as terrorist organizations.  He then went on to observe that notwithstanding the applicant’s claim that the Sunni groups are powerful and influential they had not been able to stop him from obtaining a passport and travelling abroad and that he had not been arrested, detained or imprisoned in Pakistan.  The Assessor concluded:

“In the absence of any evidence of official involvement in the alleged beating and bomb blast incident happened in 2004, it is not accepted that any of such mistreatments on you, even if established, or the perceived risk which you claimed you would face upon your return to Pakistan, fall within the definition of torture under Article 1 of the Convention.”

92.  Clearly, all the factual matters mentioned by the Assessor are relevant to a conclusion that there was no evidence of actual involvement by the State in the sectarian violence; likewise, the evidence that there was no apparent effort to stop the applicant leaving the country would be relevant to a conclusion that there was no active acquiescence by the Pakistan Government in the sectarian violence.  But, this passage does not show any consideration of passive acquiescence.

93.  The Assessor then went on to consider whether the applicant would be subjected to any real or personal risk of torture if returned to Pakistan.  In this section of his determination the Assessor quite clearly considered the extended meaning of State acquiescence and in doing so had recourse to materials on the Constitution and laws of Pakistan and to the reports issued by the US Department of State.  In order to show how fully the issue was considered and the reasoning and conclusions of the Assessor it is necessary to quote this part of his determination in full:

“(iv) The Constitution of Pakistan provides its citizens for security, equality and freedom to profess, practise and propagate their religions. According to the July - December 2010 International Religious Freedom Report of Pakistan dated 13 September 2011 issued by the US Department of State, the Pakistani government at senior levels continued to call for interfaith dialogue and sectarian harmony to promote moderation, tolerance and minority rights. It is obvious that the government is well aware of the sectarian divergence and has taken proactive approaches to improve the condition. As for the sectarian violence that was said to have driven you away from your country, state protection should be readily available to you upon your return there should you need to seek assistance from the Pakistani authorities.

Pakistan’s Anti-terrorism Act 1997 is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. The Anti-terrorism (Amendment) Ordinance was promulgated in 1999 and 2002. It allows the government to use special streamlined courts to try persons charged with violent crimes, terrorist activities, acts or speech designed to foment religious hatred, and crimes against the state. Whoever commits an act of terrorism shall be punishable on conviction with death, imprisonment, fine or liable to the punishment prescribed under the relevant law. It clearly indicates that the Pakistani government will not tolerate terrorism in the country. Taking into consideration that Lashkar-e-Tayyiba/ Toiba, Sipah-e-Sahaba Pakistan and Al Qaida regarded as terrorist organizations, even they do approach you and given your troubles, it is believed that reasonable state protection would be available to you.

You said you did not seek assistance from or report your fears to the Pakistani authorities because you did not have the money to bribe the police for their protection. However, according to 2010 Country Reports on Human Rights Practices of Pakistan dated 8 April 2011 issued by the US Department of State, there were improvements in police professionalism during the year. As in previous years, the Punjab provincial government conducted regular training and retraining in technical skills and protection of human rights for police at all levels. While it shows that the government does take actions to protect the rights of its citizens, there is no indication the Pakistani authorities would fail to discharge their duties or tolerate any unlawful and abusive behaviour. There is nothing to suggest that they would not provide you with the necessary protection if their assistance is resorted to.

You do not think the Pakistani authorities can and will protect you if you return there because they could not even protect the former Prime Minister Ms Benazir Bhutto of the Pakistan People Party from assassination.  Nevertheless, you have never brought your case to the attention of the Pakistani police and you have not been arrested, detained or imprisoned there.  In the absence of any official involvement in your religious problem and their adverse interest in you, together with the objective country of origin information stated above, there gives no evidence to prove that the Pakistani government was, is or will be unwilling or unable to provide reasonable protection to you should you seek assistance upon your return here.”

94.  Effectively, the Assessor concluded on the basis of the materials to which he had recourse:

(i) the Government of Pakistan is well aware of the sectarian divergence;

(ii) the Government of Pakistan has taken proactive approaches to improve conditions in respect of sectarian divergence;

(iii) State protection should be readily available to the applicant upon his return to Pakistan should he need to seek assistance from the Pakistan authorities;

(iv) the laws enacted by the Pakistan Government indicate that it will not tolerate terrorism in the country;

(v) because the Lashkar-e-Tayyiba, Sipah-e-Sahaba and Al Qaida are regarded as terrorist organizations the applicant would have available to him reasonable State protection should they try and harm him;

(vi)    the improvements in police professionalism, the regular training they receive and the upgrading of their technical skills, including awareness of human rights, shows that the government takes actions to protect the rights of its citizens;

(vii)   there is no indication the Pakistani authorities would fail to discharge their duties or tolerate any unlawful and abusive behaviour.  There is nothing to suggest they would not provide the applicant with the necessary protection if their assistance is resorted to.

95.  It is argued by the applicant that from the materials to which the Assessor did have recourse he cherry-picked the information in them favourable to the Pakistan Government but ignored the materials in them which suggested a breakdown in law and order and which pointed to significant difficulties being experienced by the government in controlling sectarian violence.  In respect of this latter argument it is submitted that the Assessor failed to adequately explain in his reasoning why, despite there being before him adverse information in the reports on this issue, he was able to reach the conclusions that he did that were favourable to the Pakistan Government.  In order to appreciate the force of the applicant’s submission, it is necessary to quote some of the passages in the reports on which he relies:

96.  The US Department of State’s 2010 Country Report on Human Rights Practices, in its second paragraph comments as follows:

“The major human rights problems included extrajudicial killings, disappearances and torture … a failure [by the government] to credibly investigate allegations, impose disciplinary or accountability measures, and consistently prosecute those responsible for abuses contributed to a culture of impunity … Corruption was widespread within the government and lower levels of the police forces, and the government made few attempts to combat the problem … Religious freedom violations, as well as violence and discrimination against religious minorities continued.”

97.  Under the heading “Role of the Police and Security Apparatus” the following comments are made in this report:

“Police effectiveness varied greatly by district, ranging from reasonably good to ineffective.

Police often failed to protect members of religious minorities, including Christians Ahmadis, and Shia Muslims, from attacks (see section 2.c.).  Some members of the police committed human rights abuses or were responsive to political interests.”

98.  Two paragraphs later there appears the following comment:

“There were improvements in police professionalism during the year. As in previous years, the Punjab provincial government conducted regular training and retraining in technical skills and protection of human rights for police at all levels.”

This passage was relied upon by the Assessor yet he makes no mention of any of the unfavourable comments appearing before it.

99.  In the same report, under the heading “Official Corruption and Government Transparency”, there are the following comments:

“The law provides for criminal penalties for official corruption; however, the government did not implement the law effectively, and officials frequently engaged in corrupt practices with impunity. … The police and the bureaucracy continued to be seen as the two most corrupt public sector institutions.

… Corruption within the lower levels of the police was common. … Bribes to avoid charges were commonplace.”

100.  Nor was there likely to be much assistance from the courts, in respect of which it was said:

“Lower courts remained corrupt, inefficient and subject to pressure from wealthy, religious, and political figures.”

101.  The US Department of State’s International Religious Freedom Report also contains unfavourable comments.  The second paragraph of the report summarises the position as follows:

“The government rarely investigated or prosecuted the perpetrators of increased extremist attacks on minorities and the majority promoting tolerance, which deepened the climate of impunity. Despite the government’s steps to protect religious minorities, societal intolerance and violence against minorities and Muslims promoting tolerance increased, and abuses under the blasphemy laws continued. The government did not take adequate measures to prevent these incidents or undertake reform measures to prevent the abuse of the blasphemy laws. … Also, in response to extremist societal elements, the government distanced itself from a bill introduced by a member of the ruling party that would have amended the blasphemy laws to prevent abuse.”

102.  And the next paragraph concludes with the following comment:

“Members of other Islamic sects, Christians, Sikhs, and Hindus also reported governmental and societal discrimination. There were instances in which law enforcement personnel reportedly abused religious minorities in custody.”

103.  At page 26 of the report the following comment is made about religious tolerance and it is particularly relevant to the issue of State acquiescence.

“Relations among religious communities remained tense. Violence against religious minorities and between Muslim sects continued. Most believed a small minority was responsible for attacks; however, discriminatory laws and the teaching of religious intolerance created a permissive environment for such attacks. Police often refused to prevent violence and harassment or refused to charge persons who committed such offences. Conversion to minority religious beliefs generally took place in secret to avoid societal backlash.”

104.  The final report was the UK Border Agency Report.  This report draws upon open source information.  Nothing has been brought to my attention in it that would contradict the comments in the US Department of State Reports.  One of the reports it quotes is by I H S Jane’s Information group. At page 50, paragraph 906 the Border Agency quotes the following passage from the Jane’s Report:

“Pakistan police are regularly charged with quelling sectarian violence and investigating cases of religious intolerance. The police have been unable to stem the tide of targeted killings, especially of members of the minority Shia and Christian communities.”

105.  None of these unfavourable comments have been referred to by the Assessor or caused him to qualify his findings in respect of State acquiescence.  Because he has not referred to any of these unfavourable comments it is difficult to understand how he was able to make such extraordinarily positive and unqualified comments such as:

“… there is no indication the Pakistan authorities would fail to discharge their duties or tolerate any unlawful and abusive behaviour. There is nothing to suggest that they would not provide you with the necessary protection if their assistance is resorted to.” (Emphasis added)

106.  I do not see how such positive and unqualified comments can be justified in view of the number and strength of the adverse comments from the reports that I have quoted.  I do not suggest that those adverse comments are necessarily determinative of the matter but the point is they are there and cannot simply be ignored as appears to have been done by the Assessor.  In my view the unqualified findings, and I emphasize the word “unqualified”, by the Assessor are not supported by the material to which he had access and are therefore Wednesbury unreasonable.

107.  Furthermore, any set of reasons which purports to make findings relevant to a conclusion on a core part of a claimant’s claim, and here that was the issue of State acquiescence, would have to address comments of the kind found in these reports so that a claimant could understand why, notwithstanding the existence of such comments, his claim ultimately failed.  Thus, the issue is not just one of Wednesbury unreasonableness but also one of adequacy of reasons provided by the decision-maker.

The Adjudicator’s decision

108.  Even though I have quashed the Adjudicator’s decision for failing to make proper enquiry into country conditions I shall briefly discuss the second ground of review as it pertains to him.  The Adjudicator’s consideration of State acquiescence was part of his discussion of what he called “Legal Element 4: the requirement of the “State Actor”’.  He said.

“Legal “Element 4”: the requirement of the “State Actor”

13. It is abundantly clear that the whole case had involved, at most, a religious conflict between the Sunni’s and the Petitioner, with no instigation from or involvement by the national Government of Pakistan or by any person acting in an official capacity. The complaint that the Government could not even protect Ms Benazir Bhutto may show a degree of incompetence, but does not show acquiescence. The existence of a bombing incident, even if many such incidents, is only of general relevance but not a personal factor in a torture claim. The allegation of Sunni’s “having connections with the ruling party”, vagueness aside, does not make all acts performed by the Sunni’s represent official acts of the Pakistani Government, especially when the acts (such as assaulting and launching bombs) are unlawful.

14. Further to the above, it has been decided in common law that Sunni extremists consisted of only a very small proportion within the large population of Pakistan, in addition to which terrorist attacks are sanctioned by internal criminal law, and hence the illegal acts committed by the Sunni’s were not instigated by, nor acquiesced by the national Pakistani government: see Pakistan CG [2002] UKIAT 05862.

15. The Petitioner has never been arrested, detained or imprisoned in Pakistan (Questionnaire AQ.42).  On the contrary, he was able to depart Pakistan, at least twice, via proper immigration channels using a proper passport without any hassle or problem from the national Government or Police or any official (Record of Interview dated 5 July 2011 at QA.82 to 89).  This shows he was far from being wanted or targeted for torture or any cruel, inhuman or degrading treatment or punishment by the national Government or Police or anyone acting in an official capacity.”

109.  It is quite clear from the way the Adjudicator had discussed what he calls “Legal Element 4” that he has not considered the issue of the extended concept of State acquiescence.  I am satisfied that in considering this question the Adjudicator has misdirected himself on the law in relation to State acquiescence.

110.  For the reasons I have given I find this ground of judicial review made out.

111.  The issue arises of what is the consequence of my findings.  The reason I say this is because the Assessor, but not the Adjudicator, considered internal relocation as part of his assessment.  In sub-paragraph (III) of the section of his Determination entitled “(B) No real risk of torture upon return to Pakistan” he said:

“Upon your return to Pakistan in November 2008, you stayed in the village Pekho Shoor until July 2009. Although you said the Sunni followers found out your whereabouts and threatened you over the phone, you were able to stay there without being harmed for more than half a year. According to the 2010 Country Reports on Human Rights Practices of Pakistan dated 8 April 2011 issued by the US Department of State, the law provides for freedom of movement within the country. Being an able-bodied of 36 years old with high school education, it is considered not unduly harsh for you to internally relocate to a different town or village or to another part of Pakistan to avoid the events you feared upon your return there.”

112.  Neither the Form 86 nor the written or oral submissions of the applicant complains about this conclusion.  Nevertheless, I take the attack upon the Assessor’s Determination to include this aspect of it and the second ground of review as encompassing the Wednesbury reasonableness of this finding.  This finding, in my view, cannot stand as it is also based upon an inadequate analysis of country conditions.  Essentially, this paragraph comes down to nothing more than an assertion that the applicant’s difficulties can be overcome by relocation because freedom of movement is allowed in Pakistan. Such a line of reasoning is not rational and does not address whether sectarian violence can be avoided by relocating to another part of Pakistan.  If relocation is to be seriously considered, it must be addressed in much greater depth than took place here.

113.  I therefore grant the application for judicial review and quash the Determination of the Assessor and the Decision of the Adjudicator.

114.  As I have found the first and second grounds of review made out, it is not necessary for me to deal with the other grounds of review but in deference to the arguments of counsel I shall briefly set out my views on them.

The 3^rd Ground of Review

115.  This ground concerns the definition of “torture” and argues that the Adjudicator misdirected himself in two ways.  The first misdirection was on the question he had to decide, and in deciding that question, on the weight he gave to the applicant’s past history of violence.  The second misdirection was on the issue of whether the harm to which the applicant might be subject was harm that would be inflicted for a Convention purpose.

116.  The applicant says that on the first issue the question that should have been asked by the Adjudicator is “whether or not, based on what the applicant had experienced and the country conditions there were substantial grounds to believe that the applicant would have a real risk of being tortured if he was to be returned to Pakistan, regardless of the gravity of his previous injuries.”

117.  I do not agree and see no need for these additions to the true question.  The question is simply whether there are substantial grounds for believing that if Hong Kong returned the applicant to Pakistan he would be in danger of being subjected to torture?  Answering this question will, firstly, require a consideration of the applicant’s claim so that some appreciation can be gained of why the applicant says such a danger exists and from whom that danger would come.  If he claims to have been the victim in the past of torture or other forms of harm from the same persons or entities whom he claims will subject him to torture on his return then that will clearly be relevant when answering the question.  What weight should be given to this past harm, however, may depend on a whole range of matters such as the gravity of the past harm, how recent it was, whether the authors of the harm are still alive and active and how extensive their ability is to cause harm in the home country.

118.  The Adjudicator, after describing the two past incidents of violence in which the applicant had been involved, said:

“Legal “Element 1”: “Severe pain and suffering” as stated in the common law

17. None of the injuries sustained in either Incident 1 or Incident 2 had been serious, as the Petitioner had only required dressings and oral medication, and he needed not even be admitted into hospital. There was nothing which was “severe pain and physical or mental suffering reaching the minimum level of severity” such as assessed and stated in the common law cases: see for example Huri-Laws v Nigeria Afr Comm HPR, Comm 225/1998 (23 October-6 November 2000) at §41.

18. Accordingly, 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 15 above. This factor independently dismisses the Petition.”

119.  The reasoning of the Adjudicator suggests that he was of the view that that there had to be past exposure to torture in order to establish substantial grounds for believing there is a future danger of torture.  I would have quashed the Adjudicator’s decision on this ground as well.

120.  The second issue under this ground is a complaint that the Adjudicator misdirected himself.  The Adjudicator said:

“Legal “Element 3”: the requirement for “purpose of confession or information or in perpetration of discrimination”

19. The assault and the bombing (even assuming the bombing to have targeted the Petition personally, which I do not accept to be the case) have only been carried out because of terrorist activities arising out of hatred by the Sunni’s over the Shia’s.  But the acts have not been carried out “in order to obtain information or a confession from the Petitioner or any third person or as a result of discrimination.”

20. Accordingly, the evidence has failed to establish “Element 3” in the definition of Torture, and the torture claim fails because of yet another reason which is independent of what have been stated in the preceding paragraphs.”

121.  The reasoning of the Adjudicator is not very clear.  The applicant’s case was that he was being punished for the act he committed of having converted to Shia Islam and for being of Shia Islam.  The Adjudicator cannot simply dismiss the applicant’s claim because it is based on sectarian violence without considering the issue of State acquiescence.  This he has not done.  I would also have quashed the Adjudicator’s decision on this second limb of the third ground of review.

The 4^th Ground of Review

122.  This ground argues that there was procedural impropriety in the Adjudicator not holding an oral hearing when he was minded to make adverse findings on the credibility of the applicant.

123.  It is true that the Adjudicator did make such findings but they were not the reason he dismissed the applicant’s petition.  The only reason he addressed the issue of the applicant’s credibility was, in his words, “for the sake of completeness”.  In view of his other findings there was no need for him to do so and given that he had decided not to hold an oral hearing, it would have been better had he not done so.  There is nothing in this complaint and I would not have upheld this ground of view.

The 5^th Ground of Review

124.  This ground of review alleged procedural impropriety in the refusal of the Adjudicator to accede to the applicant’s request for a medical examination.

125.  I would not have upheld this ground of review.  Given the age of the injuries a medical examination would not have taken the matter further.  The Assessor and the Adjudicator were both taking the applicant’s claim at its highest and assuming that his factual assertions were true.

Conclusion

126.  For the reasons given, I quash the Adjudicator’s decision and the Assessor’s determination and I remit the applicant’s claim to the Director for further processing.  I make an order nisi that the costs of the application be awarded to the applicant to be taxed on the Legal Aid scale.  This order nisi will become absolute in 14 days.