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

HCAL 2824/2019

[2021] HKCFI 3539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2824 OF 2019

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BETWEEN

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 19 September 2019. The Director of Immigration (“Director”) had already rejected the applicants’ non-refoulement claims on 19 November 2015 [1] and 16 June 2017 [2].

2.  The applicant is a national of Pakistan [3]. He claimed that, if he returned to Pakistan, he would be killed or harmed by his cousins “AM” and “MI” [4]. He had provided information to the UK authorities in 2005 leading to the imprisonment of “MI”. He would also be arrested by the police for jumping court bail in relation to a murder charge. He would be ill-treated by the police. There would not be a fair trial.

BACKGROUND

3.  In July 2003, the applicant went to the UK on a working holiday maker visa for 2 years. He stayed with “MI” and came to know that “MI” was conducting some illicit business in the UK. [5] He believed that the proceeds were sent back to “AM” for purchasing properties in Pakistan.

4.  In May 2005, the applicant wanted to extend his stay in the UK. A friend of “MI” offered to obtain a “genuine British passport” for him to work in Canada. He paid for the passport. He was eventually arrested for using a forged passport to leave the UK en route to Canada. He was sentenced to imprisonment for 9 months in the UK. He gave information about “MI” and his friend to the UK authorities. He asserted that this had shattered a syndicate involving forged passports. “MI” was subsequently sentenced to imprisonment for 5-7 years. Meanwhile, his father told him not to return to Pakistan as “MI” had returned to Pakistan. “MI” would kill him.[6]

5.  The applicant applied for asylum in UK after serving his sentence. His claim was rejected by the UK Home Office in November 2005 and the UKAIT [7] in December 2005. He sought a reconsideration of the UKAIT decision. He subsequently withdrew his claim as his father was seriously ill. He voluntarily returned to Pakistan in January 2006.

6.  On 27 January 2006 in the afternoon, the applicant visited his younger brother’s shop. A group of men including “Iqbal” and “Afzal” came to the shop. There was an argument allegedly on faulty goods sold by the applicant. “Afzal” pointed a gun at him. He tried to grab and push the gun away. “Afzal” fired a shot which rebounded off a wall and fatally struck “Iqbal”. “Afzal” asserted to the police that it was the applicant who produced a gun and shot “Iqbal”. His elder brother “Saeed” came to the shop later. They were both arrested for the murder of “Iqbal”.

7.  The applicant was detained in the police station for the initial 16 days. During that period, he was beaten, deprived of food and water, and ill-treated. He was then detained in District Camp Jail for 6 years.

8.  The applicant believed that “Afzal” and “Iqbal” were sent by “AM” to kill him. He also believed that “AM” was behind his ill-treatment during the detention.

9.  His elder brother “Saeed” was subsequently acquitted by the Court when he provided an alibi. The trial of the applicant was repeatedly adjourned as prosecution witnesses failed to attend the hearings. The applicant believed it was deliberately arranged by “MI” and “AM”.

10.  The applicant was subsequently granted bail by the High Court of Lahore in February 2012.

11.  After his release, the applicant encountered 3 attacks. Someone fired at him on two occasions. He was slapped from behind by a man on another occasion. He did not know the attackers. He reported to the police but there was no progress in the investigation. The applicant assumed that it was “AM” who instigated those attacks as “AM” was the only person he had grudges.

12.  After the attacks, the applicant fled to China in January 2013. He sneaked into Hong Kong on 30 March 2013.

13.  The adjudicator dismissed the appeal of the applicant on 19 September 2019 on all grounds. The main reasons are summarised as follows:[8]

a. In his evidence to the TCAB, the applicant maintained that he did not know the passport supplied by the friend of “MI” was a forged passport. It was contradictory to his admission to the police in UK.[9] This undermined the applicant’s general credibility.

b. The applicant thought that “AM” and “MI” had sent “Afzal” and others to kill him at the shop. They were responsible for framing up the murder charge against him. Apart from “AM” and “MI”, he had no grudges with other person. These were pure speculation with no supporting evidence.

c. The evidence about the three attacks after his release on bail were vague. The circumstances of the attack were inherently implausible.

d. The court documents submitted by the applicant were incomplete and not authentic. They were without any official stamps from the issuers.

e. The applicant was represented at an early stage of the proceedings in relation to the murder charge. There was no record of any complaint to the court about the asserted ill-treatment while in jail custody.

f. The documents revealed that there were problems in securing the attendance of the prosecution witnesses in the murder trial. The Lahore court had to issue warrants for their arrest. Given these circumstances, the chance that evidence against the applicant would still be available after all these years was remote. It would be less likely that the prosecution against the applicant would proceed. The applicant could have made another bail application if re-arrested.

g. The COI supported that there would be fair trials in Pakistan. The fact that he would be detained and prosecuted in accordance with the law in Pakistan would not give rise to a real risk of ill-treatment.

h. There was relocation option to Karachi. It was unlikely that the authorities in Karachi were aware of the warrant issued by the Lahore court.

GROUNDS OF THE INTENDED JUDICIAL REVIEW

14.  In the amended Form 86 dated 23/7/2021, the applicant advanced the following grounds:

(1) The adjudicator failed to consider the additional evidence despite he had agreed to do so in writing;

(2) The adjudicator erred in excluding the additional evidence which was properly submitted to the court;

(3) The adjudicator failed to consider that the pre-trial detention for 6 years amounted to cruelty, inhuman and degrading treatment and punishment.[10]

(4) The adjudicator erred in excluding evidence which he regarded as hearsay or speculation.

(5) The adjudicator erred in finding that the applicant was not credible.

DISCUSSION

Ground 1 and 2

15.  I agree with Mr. Parker, counsel for the applicant, that the first two grounds should be dealt with together. It is convenient to outline the background events first.

a. The TCAB hearing was initially fixed on 8 February 2018. The applicant applied for an adjournment intending to secure legal representation. The hearing was re-scheduled to 21 May 2018.

b. On the hearing day, the applicant applied to adduce additional evidence including 2 supplemental statements and an expert report[11]. He was assisted by a staff from the Justice Centre who submitted a letter explaining the situation.[12]

c. The adjudicator indicated that he would inform the applicant within a few days whether to admit the additional evidence.

d. The adjudicator wrote to the applicant on 24 May 2018 stating that he would take into account the additional material submitted by the applicant.[13]

e. The adjudicator dismissed the appeal on 19 September 2019. In his decision, the adjudicator however declined to consider the additional evidence in these words, “Having considered the applicant’s explanation in support of the submission of new evidence, I declined to accept the 2 documents into evidence.”[14]

16.  Mr. Parker submitted that the expert report corroborated various important aspects of the applicant’s evidence, namely, the Exit Control List, the treatment of a Proclaimed Offender, the likeliness of a fair trial and the viability of internal relocation.

17.  Mr. Parker argued that the adjudicator should have given reasons to explain the change of mind. The failure to give reasons was unfair to the applicant and was unlawful. High standards of fairness must apply in non-refoulement cases.

18.  It is beyond dispute that the adjudicator has a duty to give reasons. The reasons must be adequate and clear for parties to understand the reasoning process. The reasons need not be elaborate but must be sufficient to enable the applicant to consider the possibilities of administrative review and judicial review.[15] In my view, this is especially so when the adjudicator changes his mind as in the present case.

19.  The adjudicator is entitled to change his mind after hearing evidence and submissions. However, there must be sound reasons to support the change.

20.  I appreciate that the TCAB has wide power in the conduct of its proceedings which is a rehearing of the claim. It can accept fresh evidence and cure any defect in the Director’s decision.[16] However, there is no guideline with regard to admission of new evidence. In this respect, the principles on admission of fresh evidence on appeal may be a good reference. In Ladd and Marshall [17], the Court of Appeal in England set down three criteria to justify reception of fresh evidence,

a. It must be shown that the evidence could not have been obtained for use at the trial;

b. The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

c. The evidence must be apparently credible, though it need not be incontrovertible.

21.  In the more recent case of KV v SSHD[18] , the Court of Appeal in UK commented on the above criteria in asylum cases:

“…The criteria which must be satisfied before fresh evidence will be admitted on an appeal are those specified in Ladd v Marshall [1954] 1 WLR 1489, 1491, being (1) that the evidence could not have been obtained with reasonable diligence for use in the proceedings at first instance, (2) that the evidence, if admitted, would probably have an important influence on the result of the case, though it need not be decisive, and (3) that the evidence is apparently credible. In public law cases these principles remain the starting-point, though there is a discretion to depart from them in exceptional circumstances if the wider interests of justice so require: E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044, paras 79–82.” (emphasis added)

22.  In KV, the appellant was of Sri Lankan origin. He had applied for naturalisation on a false identity. The Secretary of State made an order to deprive him of his British citizenship. The Court of Appeal commented that the Upper Tribunal had misread the Sri Lankan law. The order would make the appellant stateless. The Court of Appeal opined that the Upper Tribunal should take into account the Sri Lankan lawyer’s report for the accurate provisions of the relevant law. The Court of Appeal considered that it was in the wider interests of justice to consider the report despite the application to admit fresh evidence was made out of time and did not satisfy the Ladd v Marshall principles. [19]

23.  While it may not be obligatory for the adjudicator to follow the above principles, fairness demands that he should explain his thought processes. A bare indication that he would not accept the new evidence is insufficient reason in the circumstances.

24.  In my judgment, it is reasonably arguable that the adjudicator erred in failing to give reasons for excluding the additional evidence. I give leave for judicial review for Grounds 1 and 2.

25.  The expert report, if admitted, would be relevant to the credibility of the applicant’s evidence. I would therefore give leave for judicial review for Grounds 4 and 5.

Conclusion

26.  For the above reasons, I consider that it is reasonably arguable that the adjudicator had erred in failing to give reasons for excluding the additional evidence. I grant leave for judicial review on Grounds 1, 2, 4 and 5.

27.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.