MS v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 208/2019

[2019] HKCFI 2708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 208 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), with the Director of Immigration as interested party (“the Director”)

2.  The applicant is legally aided and represented by Mr. Francis Ngan, counsel.

The applicant

3.  The applicant is a Pakistani national. He came to Hong Kong illegally in 2007. On 1 July 2007, he was arrested by police and was charged with the offence of remaining in Hong Kong without the authority of the Director. He was sentenced to 12 months’ imprisonment. On 26 October 2007, he lodged his claim for torture protection, which was then converted into non-refoulement under the Unified Screening Mechanism.

4.  He claimed that if refouled, he would be harmed or killed by Mohammed Siddique (“Siddique”) and Khadim Gujar (“Khadim”) of Pakistan Muslim League – Nawaz (“PML-N) because they bore a grudge against him for leading of the Pakistan People Party (“PPP”) Campaign when he was working as the Vice President of the Manzoor Abad area between 1988 and 1999.

5.  The incidents leading to him leaving his own country took place between 1988 to 2007 are set out below.

a.  He ran a shop selling electrical goods and was a member of PPP whereas Siddique and Khadim belonged to the PML-N. They were rival parties.

b.  In 1988, there had been fights between these two parties. He was involved. They fired gun shots and threw stones at each other. He was injured on his eyebrow. But he did not report to police. PML-N people threatened to kill him. Siddique and Khadim had gone to his home to look for him.

c.  Since 1990 PML-N formed the government. He discovered that he had been followed from time to time. Siddique and Khadim went to his shop to look for him. He learned from PML-N people that Khadim had bribed police to cause him trouble. His shop had been vandalized. He suspected Khadim had done it.

d.  He left Pakistan for other places in order to avoid Siddique and Khadim. However, at a wedding ceremony he came across them. They assaulted him with fists. He felt his life was at risk.

e.  In 2000, he came to Hong Kong. He was cheated by another person who promised to get him a Korean passport for US10,000. He paid and the man disappeared. On 12 October 2004, he surrendered to the Immigration Department.

f.  On 18 January 2005, he was repatriated to Pakistan. He was knocked down by a vehicle whilst he was riding a motorcycle on the road. He suspected Khadim did it. He complained to police, which refused to register the case.

g.  During the period between 2005 and 2007, he had been to Dubai, Lahore, Africa, Rawalpindi and Islamabad. In 2007, Khadim was shot and he framed up a case against him. He was arrested by police. His brother bribed him out and he went back to Islamabad and then to Hong Kong through an agent.

6.  The Director considered his application in relation to the following risks:

a.  torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“the HKBOR”) (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 26 February 2016 and Notice of Further Decision dated 16 June 2017, collectively called the “Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his basis of his claim was not credible and his claim of risks were not established; that state protection was available to him and relocation was an alternative option open to him. See paragraphs 12.6 for the reasons for credibility, 13 & 14 for the low risk; 15 for state protection; 16 for relocation and 26 for conclusion.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 15 May 2018. All parties were legally represented at the hearing.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions. In the following paragraphs, I shall set out what happened at the Board.

10.  The applicant, through his legal representative, applied for an adjournment for the reason that he had headache and he would not be able to remember things. He produced a medical chit certifying that he had a headache and a day’s leave on the day of the hearing.

11.  The Adjudicator refused his application, having considered the past events and the evidence before him, , for example, he had declined to attend two interviews with the immigration officer on the ground that he had lost his memory; he attended the interview with his duty lawyer, but aborted it for the reason that he did not wish to answer questions until after he had consulted doctor for his head injury and loss of memory; he claimed he had difficulty in answering the questions on the questionnaire provided by the Director; he had been medically diagnosed and he produced a medical report saying that no neurological deficits were found in him and he was diagnosed as suffering from a minor head injury and was certified to be fit for his interview; he had failed to attend two medical appointments for scanning without giving explanation why he was unable to attend; he did not submit all medical reports upon request by the Director. Under the circumstances, the Director proceeded to assess his claim on the available evidence. See paragraphs 78-92 of the Board’s Decision.

12.  The hearing proceeded and the applicant elected not to give evidence before the adjudicator.

13.  The Board was of the view that the above sequence of events was to delay and/or obstruct the determination of his claim and this seriously undermined the general credibility of the applicant [95]. Below are the Board’s findings:

“99. In the absence of oral evidence from the Claimant, the Board is unable to determine issues relating to his general credibility. In the circumstances, the Board is unable to determine which, if any, of the past events which the Claimant says occurred, and his claimed past experiences, actually occurred.

100. In the circumstances, the Board is unable to establish, even to the low standard applicable, if there is a real risk that the Claimant would suffer the ill-treatment he claims to fear, if he is refouled to Pakistan.

101. On the totality of the evidence, the Clamant has failed to establish, even to the low standard required, that there is a real chance, that he will suffer ill-treatment of any sort if he is refouled to Pakistan.”

Application for leave to apply for judicial review

14.  The applicant filed Form 86 dated 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the Amended Form 86, counsel for the applicant set out the grounds in support of this application [98-156].

a.  Error of law/misdirection in law: failing to adopt the correct approach of finding the facts first without having regard to the general credibility and then applying his views on the facts; but relying on the general credibility finding to assess the applicant’s case.

b.  Illegality: failure to make factual findings /no adequate reasons: this ground overlaps with the first ground, but it adds the factor of the applicant not giving evidence, thus the Board found that it could not determine whether there was a real risk as the applicant claimed, such finding has not given the reasons and should be set aside, relying upon Re Hidayah [2018] HKCA 595.

c.  Procedural unfairness: failure to adjourn the appeal as the applicant had produced medical evidence to show his headache, coupled with the history of the same medical problem, it was unreasonable for the Board to disbelieve him without evidence to disprove his medical evidence and concluded that it was a stalling tactic.

d.  Procedural unfairness: failure to provide the applicant a reasonable opportunity to be heard: once the Board had reached the conclusion that it would not believe the applicant because of the general credulity issue against him, it is incumbent upon the Adjudicator to advise him of such finding and advise him if he wanted to give evidence under those circumstances. The Board had failed to discharge its duty.

DISCUSSION

16.  I shall set out the relevant statutory provisions and the authorities in relation to the grounds above.

17.  Section 37ZD (1) of the Ordinance provides, inter alia:

(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

(a)  any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

(i)  conceal information;

(ii)  mislead; or

(iii)  obstruct or delay the handling or determination of the claimant’s torture claim; …

18.  The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 held that the applicant must establish (i) that the ill‑treatment which he would face if expelled attains what has been called “a minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.  It is clear that a very high threshold must be surmounted to establish each of those requirements.” [172]

19.  The Court of Appeal held in Re: TK v Jenkins & Another [2013] 1 HKC 526 that the burden of proof is on the applicant [19]. High standard of fairness means the applicant be given every opportunity of establishing his case [20].

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018)at §42 held that the Board’s decision is final.

22.  Ground (1) cannot stand under section 37ZD(1) of the Ordinance. Counsel argued that general credibility refers to the person of the applicant, not to the facts he stated in his evidence, which should be assessed without taking into account of his personal character. I am unable to differentiate the applicant’s personal credibility from the credibility of the evidence in relation to the facts. If the Board did not believe the applicant, it did not believe the evidence he gave. The evidence of facts was given by him. It is up to the Board to consider whether what he said was believable. The law allows the Board to take the factors into consideration to determine the credibility, which covers the applicant and the evidence he gave to the Board. Counsel argued that the Board had failed to adopt the approach he submitted and therefore did not find the primary fact. I disagree. I shall cover this argument in Ground (2). The Board has given reasons for its findings. Ground (1) fails.

23.  For ground (2), Counsel relied heavily on Re Hidayah [2018] HKCA 595, in which the Court of Appeal set aside the Board’s Decision for the reason that the Board held that it was unable to determine whether the applicant was under real risks as alleged. However, it must be born in mind that in this case, the applicant was absent. No oral evidence was available to assist the Board to make the decision. The Court of Appeal stated in §15:

“… …There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible. (emphasis added)

24.  This case has to be differentiated from that case in that:

a.  the applicant was present at the hearing and he elected not to give evidence himself upon legal advice from his legal representative;

b.  it was unable to determine the credibility of the claim because the applicant gave no evidence and the Board found that the applicant failed to establish his case, which is a fact found by the Board; in other words, the Board did not believe his evidence on the facts;

c.  the Board, having taken into consideration the facts set out in paragraph 11 above, was able to come to its conclusion.

25.  The Board had given its reasons in support of it finding of the fact that the applicant had failed to establish his claim, ground (2) fails.

26.  Ground (3) is, in my view, not a valid ground. This is a procedural discretion for the Board at the hearing. The Board, having considered all the evidence before it, particularly taking into consideration of the facts set out in paragraph 11 above, which the applicant did not dispute, came to its decision not to adjourn the matter. The fact that the applicant produced the medical evidence at the hearing did not mean that the Board must accept it. The Board did not dispute that it was an authentic document. However, it refused to accept the fact that because of headache, the applicant was unable to give evidence. The medical evidence did not spell this out. It is up to the Board to make an evaluation under the circumstances. In fact, according to the Board’s Decision, although the applicant said that he would give evidence if the hearing was adjourned, he had, upon legal advice, decided not to give evidence himself.

27.  Ground (4) is also, in my view, a non-point. The applicant was legally represented throughout the hearing. The applicant has the right to elect to give evidence or not to give evidence. High standard of fairness does not require the Board to give advice to the applicant as his legal representative was present.

28.  Ultimately, this Court has to consider whether the applicant’s judicial review has a reasonable chance of success. The Court of Final Appeal in Peter Po Fun Chan (2007) 10 HKCFAR 676 §14 held that the test for whether leave should be granted depends on whether the applicant could show that he had a reasonable prospect of success in his intended judicial review. Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.

29.  This Court has to take into consideration of the Director’s Decisions and the Board’s Decision. The Court of Appeal in Re: Kartini held that both the Director and the Board have the power to make investigation into the facts and make determination accordingly. Although the court in AM v Director of Immigration & Another (unreported, HCAL 102/2012, McWalters J., 20 November 2013) held that the Board has the power to hear the case de novo, this does not mean that the Director’s Decision is wholly reversed by the Board unless the Board specifically did so in the Board’s Decision.

30.  I have, in my previous decision Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19, held that the Board should not re-hear the case wholesale without reason, rendering the unified screening mechanism of the Immigration Department otiose. This is because under the Ordinance, the Board may accept the findings of the Director and adopt them unless to do so would be unjust. This is also for good case management, saving costs and time for the process. In this case, the Board came to the same conclusion as the Director in relation to the findings that the applicant’s claim was not credible and his claim of risks were not established. The Director went further to consider state protection and internal relocation, which were not reversed by the Board. The applicant has not disputed the Director’s findings.

31.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

32.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1