R v. DIRECTOR OF IMMIGRATION

HCAL 148/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 148 OF 2012

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D E C I S I O N

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1. This is an application for leave to commence judicial review against a determination made by the Director of Immigration on 27 September 2012 and a decision of an adjudicator of the Petition Team of the Security Bureau made on 2 November 2012. The director’s determination and the adjudicator’s decision are on the applicant’s claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

2. The Notice of Application for Leave was filed on 16 November 2012.  It was then amended pursuant to leave granted on 14 January 2013.  New grounds have been raised in the Amended Notice filed on 4 February 2013. Extension of time was granted at the hearing on 8 May 2013 for the new grounds to be advanced by the applicant.

The applicant’s case

3. The applicant stated the facts of his case in the Amended Notice of Application.  They are as follows: 

(1)    The applicant is a national of Islamic Republic of Pakistan, commonly known as Pakistan.  Islam is the state religion of Pakistan.

(2)    The applicant was born in a Christian family in 1983 in a place situated to the north of Lahore in Punjab, Pakistan.  He has been a devoted Christian since childhood.  He said because of their religion, his family lived under the threats from Muslims.  They lived as second class citizens under the constant abuse by Muslims.  The Pakistani government did nothing to help Christians including his family.  Nor was there any avenue in Pakistan for his family to seek effective redress.

(3)    After finishing his education in around 2000, he worked as a salesman.  He then worked as an office boy in a travel agency owned by a man called M.

(4)    The members of M’s family were all Sunni Muslims.  They belonged to an Islamic extremist group.  They were very rich and well known in the local Muslim community. 

(5)    M’s family attended seminars organised by Islamic extremist groups every year in a city in Punjab.  Only Islamic extremists were allowed to attend the seminars.  One of the objectives of the seminars was to make strategy to transform Pakistan into an extreme Islamic country.  Participants in the seminars were provoked and instructed to kill others who did not respect their religion.  They were also taught how to provoke ordinary Muslims to become extremists.

(6)    M was a Haji or pure Muslim i.e. a Muslim who had been to Mecca, Saudi Arabia, as a pilgrim.  Once a person has become a Haji, he becomes well-known and respected in the Muslim community.  M also went to mosques to give speeches to provoke Muslims to do Jihad i.e. Holy War against non-Muslims.  M could give such speech as he was a Haji.

(7)    Since 2004, the applicant began to work as an office boy for M’s travel agency.  Though he was a Christian, M still hired him because he was only to do a very low-level job.  In Pakistan, it is not uncommon for a non-Muslim to work for a Muslim or even an Islamic extremist if not in a high-level job.  In most cases, however, Muslims treat non-Muslims as slaves only. 

(8)    The applicant in the course of employment came to know that M had strong connections with the government, the police and religious figures in Pakistan.  M was a very powerful and influential person not only in the place where the applicant lived, but also in the whole of Pakistan because of his links throughout country.  He also ran a travel agency and was a Haji, he therefore had contacts all over the country and was able to go anywhere in the country very quickly and without any difficulty.

(9)    M had tried to convert forcibly the applicant to be a Muslim, because according to Islamic teachings, a Muslim would go to heaven if he successfully converts even one non-Muslim to be Muslim during his lifetime.  The applicant resisted M tactfully.

(10)   The applicant also acted as the chauffeur for M’s family.

(11)   M had a younger sister called Y who was about the applicant’s age.  She was also a Muslim.  When the applicant was working for M, she was still a college student.  The applicant had to drive her to college.  Because of that, they came to know each other very well.

(12)   Y studied in a relatively liberal college and was much more liberal in her thinking comparing with her family.  The applicant and Y started dating in or about May 2005.  Y did not care about R not being a Muslim.  They were also not aware of the serious consequences of dating each other.  They maintained their relationship for about 11 months.

(13)   One day in July 2006 when the applicant returned to the office as usual, he was suddenly attacked by a group of people including M for 3 to 4 minutes.  The applicant did not know why he was beaten, but managed to escape.  He only suffered minor injuries like bruising and swelling.  He obtained some medications from a pharmacy and did not go to hospital.

(14)   Y later called and told him that her family had learnt of their relationship because she had been to the hospital with her mother for medical treatment for her back pain and it was revealed that she was pregnant for 3 months.  Y further told him that her family was planning to kill him and he should run away.

(15)   He believed that the attack was orchestrated by M because of his relationship with Y.  He did not go back to work again.  He, however, did not report the matter to the Pakistani police for 3 reasons.

1.  Love affair was a shameful matter in the local Muslim community.  Nobody would make it known to others.  Should such matter be known to the police, the police would usually protect the girl’s family rather than the boy’s family.

2.  Secondly, M’s family members were Islamic extremists and M was a Haji, while the applicant was only a Christian.  The police would certainly take side with Muslims as opposed to Christians in such situations.

3.  Thirdly, Muslims, especially Islamic extremists, do not accept a Muslim girl dating or marrying a non-Muslim boy, in which situation the non-Muslim boy becomes ‘Wajibul Qatal’–which means ‘bound to be murdered’–according to Islamic teachings.

(16)   As a result of what Y said, the applicant did not return home but went to stay with his friend.  He kept hiding in order to avoid being found by M.  He hoped the matter would die down after some time.

(17)   Two or three days later, M called the applicant’s family threatening that he would kill the applicant once he found the applicant because of the applicant’s relationship with Y.  The threats were relayed to the applicant when he called back home.  He was advised not to go out for the sake of safety.

(18)   On or about 15 July 2006, the applicant, believing that the matter had die down, went out to buy something.  About 5 people including M suddenly attacked him on the street from behind.  He recognised that some of the attackers had attacked him in the last attack.  They punched, kicked and hit him with weapons including iron rod and baseball bat.  He fell down and tried to protect himself. They kept attacking him till he lost his consciousness.  They apparently thought that he was dead and therefore ran away.

(19)   He was sent to a hospital after he had passed out.  On 17 July 2006, he came around from unconsciousness and was hospitalised for 2 days.  Owing to the attack, he suffered numerous bruises all over his body.  The right side of his head and his right eye were also swollen.

(20)   When he came round in the hospital, the police asked him what had happened.  But he dared not tell them the truth because, as stated above, M was very powerful and influential.  He did not believe that the police would or could help him for the 3 reasons mentioned above.  Furthermore, Islamic extremists in Pakistan enforced their extreme Islamic rules in Pakistan, and the Pakistani government did nothing to stop that.

(21)   As stated above, if a non-Muslim boy had a relationship with a Muslim girl, the boy would become ‘Wajibul Qatal’ i.e. ‘bound to be murdered’ by the name of God in order to protect the esteem of Islam.  Even the Pakistani police enforced the extreme Islamic rules.  The applicant, therefore, was very scared, believing that he would be tortured to death if his love affair with Y should come to light and was disclosed to the police.

(22)   His family tried to seek help from a local Catholic church to settle the matter.  However, the church told his family that they could not help, but advised him to leave the country in order to save his life.  As he was afraid that M would locate him very soon given M’s strong local connections, he kept moving to different places in the hope that M would not be able to track him down.

(23)   After discharge from the hospital, he left home immediately and went to Lahore.  He stayed in a Catholic Centre in Lahore for a while. After the centre had told him that they could not accommodate him anymore or they would also be in trouble, he had no option but returned to his locality and stayed in his cousin’s house for a few days.

(24)   In about mid-August 2006, he moved to live with the husband of his aunt at a different locality to avoid being tracked down by M.  He stayed there until early September 2006.  He then moved to stay with another uncle in Karachi until
mid-September 2006 when he left Pakistan for mainland China with a view of coming to Hong Kong to seek help from the UNHCR.

(25)   He gave a further reason why he had to move around.  All of his relatives had received threatening calls from M that they would be killed if he was found to be hiding at their places.  Owing to the threats, his relatives did not want him to stay at their places for too long but forced him to leave.  This also showed that M indeed had strong local connections so as to enable him to find anybody that M wanted.  He therefore believed that even if he should go to somewhere else in Pakistan, he would still be tracked down, tortured and killed by M or M’s people.  Further, as shown by the incident of Fanish Masih (discussed below), the Pakistani government in fact took side with the Islamic extremists and would not offer any protection to persons in situations similar to his.

(26)   He was also concerned that if his relationship with Y should come to light, not only M but any Muslim would come out of nowhere to kill him because he was ‘Wajibul Qatal’–which means ‘bound to be murdered–according to Islamic teachings.

(27)   On 17 September 2006, he, intending to seek protection from the UNHCR office in Hong Kong, left Pakistan for mainland China.  He did not raise any refugee or torture claim whilst in the mainland because he had not heard of any UNHCR office in there, but he knew that there was one in Hong Kong.  He had also not heard of torture claim when he was in the mainland. 

(28)   After staying in the mainland for about a week, he arrived in Hong Kong on 26 September 2006.  On 28 September, he lodged a refugee application with the Hong Kong sub-office of the UNHCR.  That application is still pending.  In the meantime, he believed that he did not need to lodge a torture claim with the Director of Immigration so long as he stayed in Hong Kong without committing any other criminal offence, because if he should be in trouble with the law, his chance of resettlement in a third country would be prejudiced even if his refugee claim was accepted.

(29)   He also feared that if he surrendered to the Immigration Department, he would be detained and hence would not be able to attend any interview with UNHCR, thereby prejudicing his chance of success of his refugee application.

(30)   Further, he was then not aware that a prompt application to the director for a torture claim would safeguard his credibility when his claim came to be assessed.

(31)    On 29 November 2006, he was arrested by police in Hong Kong and was referred to the director who detained him in custody.  He filed a handwritten note dated 2 December 2006 with the director at the first available opportunity which in effect was his torture claim.  In that note he stated that:

“I […] want to apply torture claim. And I want protection [here] Because I am having Big problem in my country (Pakistan). I am a Christian so please arrange Christian interpreter so that I can [explain] all that my problem that I am having in my country. So please save my life. Kindly help me. (Original emphasis)”

(32)    On 15 December 2006, he submitted to the director a 3-page ‘case letter’ enclosing some supporting documentary evidence (“the Case Letter”).  This letter provided the gist of the factual basis of his torture claim which was that he, being a Christian, had an affair with a lady of a family of Islam extremists, and was on the run for his life.

(33)   On 23 January 2007, the director released him on immigration recognizance.

(34)   On 2 March 2007, a copy of the Notice to Person Making a Claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was served on him under the pre-enhanced screening mechanism.  This screening was later suspended because of the judgment of the Court of First Instance in FB v Director of Immigration [2009] 2 HKLRD 346.

(35)   The applicant now also relies on a case that happened in September 2009 to a fellow countryman of his the facts of which, he said, were similar to his.  The applicant thought that his fear and concern were well justified in the light of this incident. 

(36)   The incident was reported in a widely circulated English paper in Pakistan named “Dawn”.  It was about one Fanish Masih, also known as Robert.  Masih was a Christian.  He had a relationship with a Muslim girl.  After their relationship had come to light, he was arrested for blasphemy and put in jail by the Pakistani police.  (The report of blasphemy was allegedly made against him by the girl’s mother to the police.)  He was subsequently found dead while in police custody.  Although the authorities alleged that he had hung himself inside the cell, the newspaper Dawn reported that it was the generally belief that he was tortured to death by jail officers but mocked to have committed suicide.  His death and the riot that took place at his funeral had received huge attention in the place where the applicant lived and was reported in local and international media and network.

(37)   The applicant said as a result of this incident, he did not dare to report his case to either the Pakistani police, or other authorities in Pakistan.  However, he had arrived in Hong Kong on 26 September 2006 and has been here since then.  There has therefore been no opportunity for him to report personally his case to the Pakistani police or other authorities in Pakistan since September 2009 when Masih died.

The correspondence between the Director of Immigration and the Applicants’ Lawyer

4. By a letter dated 31 July 2012, the director informed the applicant that the screening of his torture claim had been resumed under the enhanced screening mechanism and served on him a copy of the Questionnaire for Persons who have made Claims under CAT (“the Questionnaire”). The director also referred him to the Duty Lawyer Service (“DLS”) on the same day and a duty lawyer was assigned to advise and assist him in respect of his torture claim.  The director and the duty lawyer then had the following correspondence. 

(1)    By a letter dated 21 August 2012, the director requested the applicant through the DLS for submission of his completed Questionnaire by 28 August 2012.

(2)    The applicant’s duty lawyer by a letter dated 27 August 2012 requested the director for extension of the deadline for submission to 14 September 2012 on the ground that a few more conferences might be required before the Questionnaire could be finalised and submitted.

(3)    The director replied by a letter dated 28 August 2012 to DLS asking for submission of the completed Questionnaire on 5 September 2012.

(4)    The duty lawyer replied to the director by a letter dated 5 September 2012 stating that a few more conferences would be required before the Questionnaire could be submitted and asked for an extension of the deadline to 21 September 2012.

(5)    The director by a letter dated 12 September 2012 to DLS stated that:

1.    no reason had been given to justify why the Questionnaire could not be completed before the deadline;

2.    ample time and reasonable opportunities had been given to the applicant to provide information in support of his torture claim; and

3.    in view of the applicant’s continued failure to submit the Questionnaire, the director decided to proceed with the assessment of the applicant’s claim on the basis of the available information including his written representation of 2 December 2006 lodging the claim and his past screening documents.

(6)    The duty lawyer replied by a letter dated 13 September 2012 to the director saying that:

1.    reasons had been provided in support of the request for extension of time, namely the complexity of the case and therefore the legal representative required more time to advise and assist the applicant to finalise the Questionnaire;

2.    the director should not consider the past screening documents in the absence of the applicant’s consent; and

3.    the director should arrange a screening interview before proceeding to determine the applicant’s torture claim.

(7)    The director replied by a letter dated 21 September 2012 to the duty lawyer that:

1.    the legal representative’s need for more time to advise and assist a torture claimant to finalise the Questionnaire had never been accepted as a ground for allowing extension of time for submission of the Questionnaire;

2.    the applicant had not provided details of the alleged complexity of his case; and

3.    given the failure of the applicant to submit his completed Questionnaire, his torture claim would be determined on the basis of the available information but excluding the applicant’s past screening records and without a fresh screening interview.

(8)    By a letter dated 24 September 2012, the duty lawyer replied to the director that the director was wrong in proceeding to determine the applicant’s torture claim without a screening interview to make inquiries into the applicant’s claim and his difficulties.  The director was again requested to arrange a screening interview with the applicant and to provide all materials and information on the basis of which the director determined the applicant’s torture claim so that the applicant would have a fair opportunity to make representations thereon.

(9)    The director replied by a letter dated 27 September 2012 that:

1.    There was no strong justification for granting an extension of time in the applicant’s case;

2.    the Questionnaire was indeed a prerequisite without which the case officer would have no idea/knowledge of the applicant’s fear in his country; and

3.    the applicant’s previous screening records had been excluded.

The determination by the Director of Immigration

5. The director also enclosed his determination of the applicant’s claim in his letter dated 27 September.  The determination was arrived at without consideration of the Questionnaire as it was not filed within time.  The director rejected the applicant’s claim in the determination on the following grounds:

(1)        the applicant’s claimed fear did not necessarily relate to involvement by the state of Pakistan or any public official and thus did not fall within the definition of torture under Article 1 of CAT.  There was no evidence that the applicant was subjected to any threat of torture initiated or agreed to by any public official or other person acting in an official capacity in Pakistan;

(2)    that the Constitution of Pakistan, there was no indication that the Pakistani authority would fail to discharge its duties or tolerate any unlawful and abusive behaviour committed by an individual as a systematic practice;

(3)    that the applicant had therefore failed to establish that he had a foreseeable, real and personal risk of torture in Pakistan if he was to return there; and

(4)    that some country reports including the Country Report on Human Rights Practices of Pakistan and the International Religious Freedom Report issued by the Department of State of the United States showed that the Pakistani government had the determination to enhance religious freedom in her home country.

The applicant’s petition to the adjudicator

6. The applicant was not satisfied with the director’s determination.  He with the assistance of the DLS lodged with the Petition Team a petition on 10 October 2012 challenging the determination (“the Petition”).  The applicant also enclosed in the petition his completed Questionnaire and the supporting documents referred to therein. 

7. The applicant specifically requested in the Grounds of Petition for an oral hearing of the Petition.  He also expressly requested in the Questionnaire an oral hearing of the Petition so that he could make further representations. 

8. He by his own letter submitted to the adjudicator on 15 October 2012 a Supplemental Declaration in Support of Petition but without informing the DLS of the same.  The Supplemental Declaration was said to have been prepared by the officers of UNHCR to support his torture claim. 

9. The adjudicator, by a memorandum dated 10 October 2012, requested the Immigration Department to provide him with documents to facilitate his decision on whether there should be an oral hearing of the Petition.  The adjudicator also by a memorandum dated 15 October 2012 forwarded the Supplemental Declaration to the director.  The adjudicator, however, did not notify the DLS of the existence of the Supplemental Declaration. 

10. By an email dated 17 October 2012, the Immigration Department provided to the adjudicator electronic copies of the documents requested for and informed the adjudicator that no screening interview had been conducted with the applicant. 

The adjudicator’s decision on the petition

11. The adjudicator by a decision dated 2 November 2012, dismissed the applicant’s petition on the following grounds.

(1)    The adjudicator did not accept that the illegal acts by M could possibly be the official stance taken by the national government of Pakistan.  There was no instigation or involvement by the national government of Pakistan or by any person acting in official capacity.  The applicant’s case only involved a private hatred by M against the applicant. 

(2)    The applicant was able to depart Pakistan via proper immigration channels without any problem.  He was not being wanted or targeted for torture or any criminal, inhuman or degrading treatment or punishment by the national government or anyone in his official capacity. 

(3)    The adjudicator also found that the applicant had only suffered moderate but not severe injuries because despite having been knocked unconscious, there was no evidence of any medical or surgical treatment of a major scale.  The applicant had only spent a short time in hospital and a fortnight later was well enough to move from place to place.

(4)    The adjudicator also said that the supporting documents produced by the applicant might be useful for a university seminar or a course in social studies about Pakistan, but in no way did they focus on the applicant personally.  Hence, they did not add anything legally to what the applicant had already said.

(5)    In respect of the applicant’s request for an oral hearing of the Petition, the adjudicator stated that the basis of the applicant’s torture claim was abundantly clear from all the materials in the file and he had already assumed his case to its highest.  Therefore, there could be no more oral representation which could possibly take his case any higher even if a hearing was to be conducted.  Given that the decision was not based on the lack of credibility, there was no issue of credibility justifying an oral hearing of the Petition.

(6)    The adjudicator also observed for the sake of completeness that:

1.    the applicant had left Pakistan via proper immigration channels and did not make any torture claim when landed in mainland China;

2.    he sneaked illegally into Hong Kong clandestinely by boat, which, he must knew, was unlawful and dishonest; and

3.    he chose to enter Hong Kong illegally because he did not want Hong Kong to know his presence here so that he could illegally do whatever he was planning to do, and, for as long as possible, before he would be discovered, reserving the torture claim as ammunition when called upon in order to prolong his stay.

(7)    For the observations made, the adjudicator did not accept the applicant to be a person of good character, or that he was honest or reliable or credible as a torture claimant.

The law

12. Section 37ZI(3) to (5) of the Immigration Ordinance provide for the acceptance and rejection of a torture claim as follows:

“37ZI. (3) A torture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if the claimant were removed or surrendered to a torture risk State.

(4) A torture claim must be rejected in the absence of the substantial grounds for belief referred to in subsection (3).

(5) In determining whether there are substantial grounds for the belief referred to in subsection (3), all relevant considerations are to be taken into account, including, where applicable, the following matters in relation to the conditions in the torture risk State —

(a) whether there is a consistent pattern of gross, flagrant or mass violations of human rights in the torture risk State; and

(b) whether there is any region within the torture risk State in which the claimant would not be in danger of being subjected to torture.”

13. Torture is defined in section 37U(1) as:

“37U (1) torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) for such purposes as—

(i) obtaining from that person or a third person information or a confession;

(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or

(iii) intimidating or coercing that person or a third person; or

(b) 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, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

The applicant’s grounds for judicial review

14. The applicant has made eight grounds in support of this application.  They are:

(1)    The adjudicator’s decision is faulty for procedural impropriety in that the adjudicator had failed to conduct an oral hearing of the applicant before dismissing his petition.

(2)    The adjudicator’s decision is faulty for procedural impropriety in that the adjudicator had failed to invite the applicant’s representation before deciding not to conduct an oral hearing.

(3)    The adjudicator’s decision and the director’s determination are faulty for procedural impropriety in that both the adjudicator and the director had failed to conduct sufficient enquiry into the country conditions of Pakistan. 

(4)    The adjudicator’s decision and the director’s determination are faulty for irrationality in that there was insufficient basis in support of the conclusion that the applicant would face no risk of torture if returned to Pakistan.

(5)    The adjudicator’s decision and the director’s determination are faulty for illegality in that the adjudicator and the director had failed to take into account of relevant considerations and materials.

(6)    The director’s determination is faulty for procedural impropriety in that the director had failed to afford the applicant every reasonable opportunity to establish his claim.

(7)    The director’s determination is faulty for illegality in that the director had adopted a rigid practice of not arranging any screening interview if no questionnaire was submitted by the applicant.

(8)    The adjudicator’s decision is faulty for illegality in that the adjudicator had erred in law or misdirected himself in law in concluding that the applicant had no risk of being tortured on the ground that there was no evidence of any injury which was “severe pain and physical or mental suffering reaching the minimum level of severity”.

15. The putative interested party tackled the grounds by reference to the nature of the arguments rather than by following the order as set out in the amended notice of application as there are overlapping areas in the grounds.  I agree with and adopt the approach of the putative interested party.

No screening interview and no reasonable opportunity for the applicant to establish his claim

16. Counsel for the applicant relies on the arguments adumbrated for the applicant in the correspondence between the duty lawyer and the director. 

17. Counsel submitted that there was no exceptional urgency which should compromise the requirement of the high standards of fairness.  Counsel further submitted that there was no good reason why a screening interview, which was expressly requested for by the applicant, could not be arranged even if a completed Questionnaire had not been submitted.  The high standard of fairness would have required a screening interview despite the absence of a completed Questionnaire.  The screening would have afforded a fair opportunity for the applicant to make representations on the information on which the director assessed his application. 

18. Regarding the director’s stance that there cannot be a screening interview without a completed Questionnaire, counsel for the applicant submitted that the director has adopted a policy which fettered his discretion in the exercise of his powers.  It was also wrong for the director to have applied such a policy to the applicant’s case which involved fundamental human rights.

19. On the director’s refusal to extend time for submission of the completed Questionnaire, I must consider the adequacy of the initial 28 days and what reason had been advanced in support of an extension. According to the director’s letter dated 27 September 2012, the 28-day period was worked out between the director, the Security Bureau and the DLS.  Hence, this period prima facie should be enough for the duty lawyer assigned by DLS to take instructions from a CAT claim applicant and to complete the Questionnaire provided that the nature of the claim is not particularly complicated. If the claim should be particularly complicated which would warrant an extension of time for the work, then the DLS should state the justifications in a concrete manner so that the director can understand the nature of the complexity and to allow a reasonable extension to suit the facts of the case. 

20. General statements like the lawyer’s assertion of complexity or that the lawyer needs time for more conferences and without more (as was in this case) are unhelpful for the director’s consideration on whether an extension is justified and, if so, its length.  The fact that there is no urgency still does not mean that an extension of time should be granted merely upon a request being made and without justification as CAT claims should be processed without any undue delay.

21. Furthermore, as pointed out by counsel for the director, though the director only allowed a 7-day extension to 5 September 2012, he did not give his decision until 27 September 2012. 

22. I find that the applicant has not made out a case that the director has turned down a proper request for extension of time. The applicant therefore has no basis to complain against the director for not giving him more time to complete his Questionnaire or a reasonable opportunity for him to establish his claim. 

23. Regarding the applicant’s complaint that the director should have arranged a screening for the applicant even though there was no Questionnaire, I agree with counsel for the director that if there is no completed Questionnaire, then the director would not know the applicant’s case and there is no basis to conduct the screening.  If the director cannot be faulted for not extending the time for filing of the completed Questionnaire, then the director also cannot be faulted for not conducting a screening interview as there was no completed Questionnaire for the screening to be based on.

24. Counsel also submitted that the director could not be completely ignorant of the nature and basis of the applicant’s claim even though the previous screening materials were not relied on by the director.  On this point, counsel is relying on the Case Letter.  The Case Letter set out the applicant’s case as referred to above in gist.  Counsel for the director sought to justify the director’s failure to consider this letter by referring to the applicant’s objection to the director taking his previous screening records into consideration.  But I do not think the Case Letter should form part of the previous screening records.  It is of a similar nature as the letter dated 2 December 2006 (as referred to in para 3(31) above) which had not been excluded by the director but was discussed in the director’s determination. The Case Letter is also not material obtained by the director in the course of the previous screening but was provided by the applicant before the screening. From the correspondence and other documents available, the director seemed to have overlooked the Case Letter.  Nevertheless, this letter was expressly referred to by the applicant in his petition and was part of the materials before the adjudicator.

25. Had the director been aware of the Case Letter, his consideration on the need for screening might have been different.  However, given the purpose of the screening is for the director to clarify the applicant’s case, any prejudice to the applicant, if any, as caused by the lack of screening should have been annihilated by the applicant’s comprehensive presentation of his case in the petition.  I therefore find that there is no merit in the complaint to the extent that it is used to justify the complaint of no screening interview.

No invitation by the adjudicator for representation on the need for an oral hearing and the lack of an oral hearing conducted by the adjudicator before dismissing the petition

26. Counsel for the applicant accepts that there is no absolute rule that there must be an oral hearing automatically in every case (see R (West) v Parole Board; R (Smith) v Parole Board (No. 2) [2005] 1 WLR 350 per Lord Slynn of Hadley at para 50).

27. Counsel for the applicant emphasised the high standards of fairness required as laid down by the CFA in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for processing CAT claims.

28. Counsel accepted that the burden is on the applicant to establish that the applicant would be in danger of being subjected to torture if returned to his country, but counsel submitted that the applicant should be given every opportunity to discharge his burden.  Counsel cited para 25 of TK v Jenkins and Anor, CACV 286/2011 where Cheung, CJHC referred to CH v Director of Immigration [2011] 3 HKLRD 101 at para 47 and said that the exercise of determining a CAT Claim is a joint endeavour of the applicant and the director.  Counsel also submitted that the decision maker has the duty to inquire into the country conditions.  The decision maker should also draw the applicant’s attention to matters that require explanation, clarification and elaboration.  He must make primary findings on the material facts by applying the civil standard of proof.  However, I would caution against the reliance of these statements as if they were a creed.  What they boil down to is a matter of fairness.  Now that CAT claim applicants are assisted by the DLS, it is therefore reasonable to expect them to be responsible for a significant part of the joint endeavour though without making the tasks of the director any less onerous.  With the help of the DLS, the applicants are also expected to present their cases in as comprehensive a manner as they are in a position to do so.

29. Counsel also relied on what Lord Diplock had said in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 233 B-C and submitted that one of the most fundamental rules of natural justice is that if a decision-maker is minded to make a finding of facts adverse to the applicant, the letter should be given an opportunity of stating his answer to it.  I think what Lord Diplock meant was that a judge should not rely on certain matter as the basis of his decision if counsel had not in the course of submissions referred to such matter and the court had also not invited counsel to submit on it.  I do not think Lord Diplock was saying that the judge should, after hearing the case, make provisional findings of facts and invite counsel to address on whether the judge should make such findings.

30. Counsel for the applicant also relied on Marcelo De Vera Centeno v Director of Immigration, HCAL 50/2012 a decision by Lam J (as he then was) and submitted that if credibility is in issue, there should be an oral hearing.

31. However, if an adjudicator, having assumed all the facts alleged by the applicant are true, should find that the criteria of CAT are not met and dismissed the petition, then there need not be any hearing as credibility is not in issue.  This is so even if the adjudicator should, after having given the reasons for dismissing the petition, proceed to comment on the credibility of the applicant as in the present case.  The comment is not strictly necessary to make the decision complete and the decision should be subject to “vigorous examination and anxious scrutiny” without the comment that was arrived at without the benefit of an oral hearing.  This is so even if the applicant in the petition has asked for a hearing as any hearing is to be arranged not on the basis of the applicant’s request but on the adjudicator’s need.

32. The applicant in the amended notice also said that the adjudicator was wrong in assuming that the completed Questionnaire and the Grounds of Petition already contained all that the applicant could have said in support of his claim.  He has indeed stated in the petition that he would have further representation to make in the requested oral hearing.

33. Counsel for the applicant also submitted that if the hearing should have been held, the applicant would have been able to answer the adjudicator’s findings of inadequacies of his case.  For example, he could have provided more materials to show M’s strong connections with the Pakistani government, the police and religious figures.  He could provide further details of M to show that it was not a case of private hatred between him and M.  He could also have explained why he could have left Pakistan uneventfully.

34. I do not agree with these submissions.  Now that an applicant of CAT claim is assisted by the DLS, he is expected to present his claim in as comprehensive a manner as he can reasonably do.  He should not just put in part of his case in writing and ask for an oral hearing to let out the rest of it or for the rest of it to come out through probing by the director at the hearing.  That is a wrong approach.  The Notice of Petition given to him has also warned him that the adjudicator may decide not to hold an oral hearing.

35. I would further observe that the adjudicator has the duty to seek explanation, clarification and elaboration, if need be, of matters that affect the decision one way or the other.  An oral hearing may likely to be necessary for the matters to be disposed of fairly.  The existence of such need would depend on the facts of the particular case.  However, I do not think it right that the adjudicator would have to rehearse his provisional findings to the applicant at an oral hearing and then invite submissions from the applicant or his lawyer on those provisional findings before making his ultimate findings. 

36. In the present case, the applicant, with the help of his duty lawyer, has already presented his case in a comprehensive manner in the petition to the adjudicator.  I do not think the adjudicator can be faulted in not conducting an oral hearing.  Even if the applicant can supply further evidence to show a stronger connection between M and the Pakistani government, the police and religious leaders, that would not change the nature of his case.  Regarding his uneventful departure from Pakistan, if he has a story to tell on why it could have been other than uneventful, I see no reason why he would not have divulged it in his petition and completed Questionnaire. His petition and completed Questionnaire has not said a word about such story. I do not see why the adjudicator should ask if there was any such story.

37. The applicant in para 121 of the amended notice also asserted that the Brief Notes and the Practice Directions, in purporting to restrict the use of oral hearings and dispensing with notice in that respect, have derogated from the legal principles and guidance laid down by Saunders J in FB v Director of Immigration [2009] 2 HKLRD 346.  I disagree.  Lam J has said in Marcelo De Vera Centeno at paras 10 to 15 that the current system of handling petitions (with the use of the Brief Notes and Practice Directors) is in accordance with the law.  I fully agree with his view.  Au J has also in ST v Betty Kwan & Ors, HCAL 60/2012 at paras 68 to 95 dealt exhaustively with and dismissed the arguments on the validity of the Notice of Petition, the Petition Form, the Brief Notes and the Practice Directions.  I agree with the reasons of Au J.

38. The applicant under these grounds also criticized the adjudicator for not making any assessment of the country conditions of Pakistan.  But that has nothing to do with the lack of an oral hearing as the applicant had supplied to the adjudicator all the information he had on the conditions of his country by way of documents and reports.  I do not think an oral hearing would rectify or cause the adjudicator to rectify his alleged deficiency.

39. The applicant also attacked the adjudicator’s comments on his creditability and findings on his character.  The applicant raised this ground despite the adjudicator’s rider that the petition failed not because of credibility.  The adjudicator said in the decision that the applicant wanted to remain in Hong Kong without being known so that he could undertake illegally whatever he intended to commit, to do so for as long as he was not discovered and to reserve the torture claim as his ammunition to prolong his stay.  The applicant referred to the fact that he had applied to the UNHCR shortly after he had arrived in Hong Kong and before he was arrested and the application is still pending.  He said the adjudicator had failed to consider this fact in coming to the adverse comments on him and he would have been able to put the picture right had he been an oral hearing.  Counsel for the applicant also submitted that the adjudicator, in making the wrongful credibility assessment, had tainted his mind regarding the applicant.  Hence, the adjudicator was not unbiased when assessing the claim.

40. I think the decision of the adjudicator can be read without the comment on the applicant’s credibility and finding on his character.  The comment and finding were made without the benefit of an oral hearing and not appear to be well considered.  However, I do not think there is sufficient ground to say that the adjudicator has thereby tainted his mind and his decision, shorn of the credibility and character part, is also biased.  I think the decision save the credibility and character part is the result of straight application of the CAT criteria.  It involved no assessment of credibility.  The adjudicator is also a former judicial officer who is capable of putting aside credibility considerations in making legal decisions.  There is nothing to show that the adjudicator has been biased in making his decision that the applicant’s claim is not within the scope of CAT.

41. Counsel for the applicant also submitted that the adjudicator, upon receiving the Supplemental Declaration from the applicant himself, should have advised the DLS and hold a directions meeting to deal with the matter.  I think it would have been preferable for a copy of the Supplemental Declaration to be sent to the DLS for information as the adjudicator had sent a copy of it to the director.  However, the Supplemental Declaration did not derogate from anything in the applicant’s case as presented through DLS, I do not think this is a sufficient ground to disturb the adjudicator’s decision.

42. Au J has in ST v Betty Kwan dealt with the arguments on the need for an oral hearing, the duty of the adjudicator to indicate not to hold an oral hearing, the hearing of representation from the applicant on whether an oral hearing should be held, the need to give reasons for not holding an oral hearing, the lawfulness and fairness of the Brief Notes and Practice Directions given to the adjudicators and the content of the Petition Form.  Au J has given detailed reasons in paras 32-85 of his judgment for rejecting these challenges.  I agree with and also adopt these reasons for the purpose of adjudicating this application.

43. For the above reasons, I reject the applicant’s grounds on the need of an oral hearing and the duty of the adjudicator to invite representation on the need of an oral hearing.

Both the director and the adjudicator had failed to conduct sufficient enquiry into the country conditions of Pakistan

44. The director in the decision had referred to the constitution of Pakistan which accorded protection of fundamental rights to every citizen and provided for security to and equality of its citizens.  The director had also considered the Country Reports on Human Rights Practices 2010 and 2011 issued by the Department of State of the USA.  The director highlighted the facts that the police of Islamabad, the capital of Pakistan, had appointed human rights officers and had a human rights cell to encourage report of violations of human rights and that the federal and provincial police and law enforcement officers had attended training courses on human rights, victims’ rights and women’s rights.  The director then concluded that there was no indication that the Pakistani authority would fail to discharge its duties or tolerate any systemic practice of unlawful and abusive conduct of any person.

45. The director had also consulted the executive summary of the International Religious Freedom Report for 2011 also issued by the Department of State of the USA and concluded that the Pakistani government had also taken steps to bolster religious freedom. 

46. The applicant complained that the director had taken certain paragraphs out of context from the reports and turned a blind eye to other parts which were relevant to the applicant’s CAT claim.

47. The applicant pointed out that the Country Reports for 2010 and 2011 also stated that there were widespread corruption within the government and police, continuous violence and discrimination against religious minorities, abuse of religious minorities in prison facilities, extrajudicial killings, torture and disappearances committed by security forces and also activities of militant, terrorist and extremist groups that affected thousands of citizens.  Two prominent government ministers who were in support of religious minorities were assassinated in 2011.  The executive summary of the International Religious Freedom Report for 2011 also stated that since the government rarely investigated or prosecuted the perpetrators of increased extremist attacks on religious minorities and the Muslim majority who promote tolerance, the climate of abuse with impunity continued.

48. Based on these reports, counsel for the applicant submitted that it was wrong for the director to conclude that Pakistan was a safe country for the applicant to return to.

49. The adjudicator did not harbour the same view as the director.  The adjudicator said in his decision that the reports did not focus on the applicant personally and therefore did not assist his torture claim.

50. Counsel for the applicant however submitted that both the decision of the adjudicator and the determination of the director were procedurally unfair as both the adjudicator and the director had failed to make sufficient enquiry of the conditions of Pakistan.

51. Counsel for the director replied that the reports provided by the applicant merely depicted the general conditions of Pakistan and did not assist the applicant in substantiating a risk of torture to him. 

52. The enquiry of the conditions of Pakistan is necessary in this case as it is relevant to the question posed in section 37ZI(3) of the Immigration Ordinance namely whether the applicant would face the danger of torture as he alleged if he were surrendered to Pakistan.  

53. The adjudicator had taken the applicant’s case to the highest.  It is part of the applicant’s case that M still wants to kill him because M is a Muslim extremist and the applicant, being a Christian who had an affair with a Muslim girl, is ‘Wajibul Qatal’ or bound to be killed as happened to Fanish Masih.  The adjudicator said that it was a “private hatred” of M against the applicant which did not involve the Pakistani government.

54. However, if the applicant should be returned to Pakistan, he would have to seek protection from the Pakistani police to avoid being harmed by M.  He would therefore have to disclose to the police the reason why M would want to harm him.  That will necessarily require him to fully disclose to the police his previous affair with Y.  That, accordingly to him (see para 3(15) above), would turn the police against him and make the Muslim extremists his assailants.

55. The executive summary of International ReligiousFreedom Report for 2011 states that:

“Pakistan: The situation deteriorated as some government practices limited freedom of religion, particularly for members of religious minority groups. Freedom of speech is constitutionally ‘subject to any reasonable restrictions imposed by law in the interest of the glory of Islam.’ Abuses continued under the blasphemy law and other discriminatory laws, such as ‘the anti-Ahmadi laws’; the government did not take adequate measures to prevent these incidents or reform the laws to prevent abuse. Since the government rarely investigated or prosecuted the perpetrators of extremist attacks on religious minorities and members of the Muslim majority promoting tolerance, the number of attacks increased and the climate of impunity continued. There were instances in which law enforcement personnel reportedly abused persons belonging to religious minorities in custody. The government took some steps to improve religious freedom and promote tolerance, such as the creation of a Ministry of National Harmony after devolution of the Ministry of Minorities and the appointment of a special advisor for minority affairs following the assassination of Minister of Minority Affairs Shahbaz Bhatti.”

56. The executive summary on Pakistan in the World Report 2012 (P 362) also stated:

“Religious minorities faced unprecedented insecurity and persecution. Freedom of belief and expression came under severe threat as Islamist militant groups murdered Punjab Governor Salmaan Taseer and Federal Minorities’ Minister Shahbaz Bhatti over their public support for amending the country’s often abused blasphemy laws. Pakistan’s elected government notably failed to provide protection to those threatened by extremists, or to hold the extremists accountable.”

57. Lam J in para 57 of his judgment in TK v Michael C Jenkins & Anor, HCAL 126/2010 cited para 18 of General Comment No 2 (24 January 2008) by the Committee against Torture as guidance on the concept of state acquiescence:

“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.”

58. On the basis of the executive summaries referred to above and the principle stated in para 18 of General Comment No 2, the country conditions of Pakistan are therefore relevant to whether the government of Pakistan should be held responsible for consenting to or acquiescing in the impermissible acts of the extremists.  The result of that consideration will provide the answer to the question of whether the applicant would face the danger of torture as defined in section 37U(1) of the Immigration Ordinance if he were returned to Pakistan. However, the adjudicator did not consider the conditions of Pakistan relevant as he took the view that the reports on Pakistan did not focus on the applicant personally and therefore did not assist his torture claim. 

59. It is arguable that if the adjudicator had taken the applicant’s case to the highest, he should have also considered the country conditions of Pakistan and whether the government of Pakistan should be held responsible for consenting to or acquiescing in the impermissible acts of the extremists.  Hence, it is arguable that he had not considered properly the applicant’s case as he had left out the material issue of the conditions of Pakistan from his consideration.  I therefore grant leave to the applicant to commence judicial review against the decision of the adjudicator on the ground of the adjudicator’s omission.

60. For the director, I have decided that his overlooking of the Case Letter submitted on 15 December 2006 alone did not make the lack of screening a ground for judicial review as all that was said in the Case Letter had been presented more comprehensively in the petition to the adjudicator. 

61. However, on this ground of lack of consideration of what may happen to the applicant upon his return to Pakistan, the director’s failure was not made good by the adjudicator.  If the director should have considered the Case Letter, he should likewise have considered the question of whether the government of Pakistan should be held responsible for the impermissible acts of the extremists and what may happen to the applicant upon his return to Pakistan.  The director could of course have other reasons to reject the applicant’s claim if he should have been given the full facts of the case and had conducted a screening of the claim.  He might also resort to experts for advice on the teachings, beliefs and conduct of the Muslim extremists to verify the applicant’s claim.  However, the director’s overlooking of the Case Letter had resulted in his not considering this question at all.  It is thus arguable that the director has erred.  I therefore grant leave for the applicant to commence judicial review on this ground of omission against the director’s determination as well.

62. The applicant’s success in obtaining leave under this ground of omission also means that he is successful under the ground of insufficient basis to say that he would face no risk of torture upon return to Pakistan.  He is also successful on the ground that the adjudicator and the director had failed to take into account of relevant considerations and materials and the ground of lack of evidence of any severe pain or suffering.  Regarding the final ground, the lack of evidence of previous torture may or may not mean that there will be no risk of torture upon return to the country in question. In the context of this case and accepting the applicant’s case to the highest, it is arguable that there would be such risk upon his return to Pakistan.

63. Having granted leave to commence judicial review, I also extend the order of the applicant’s anonymity until the conclusion of the judicial review proceedings or until further order.

64. Finally, I make a costs order nisi that the costs of this application be in the cause of the judicial review.  For the applicant’s own costs, they shall be taxed according to the Legal Aid Regulations.