A AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 249/2023, [2024] HKCA 471

On appeal from [2023] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 249 OF 2023

(ON APPEAL FROM HCAL NO 1513 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 8 June 2023, Deputy High Court Judge K W Lung refused to grant leave to the 1^st to 5^th applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non-refoulement protection claims[1]. The applicants lodged a Notice of Appeal against the decision of the judge on 10 August 2023. This appeal is dealt with on paper without an oral hearing for the reasons mentioned below.

Background

2.  The applicants are all nationals of Pakistan. The 2^nd applicant is the wife of the 1^st applicant, the 3^rd and 4^th applicants are their children born in Pakistan and the 5^th applicant is their youngest child born in Hong Kong. The 3^rd and 4^th applicants are now 22 and 21 years of age respectively, and the 5^th applicant now aged 14 remains a minor.

3.  The 1^st applicant last entered Hong Kong on 6 February 2003 on the strength of his Pakistani passport and was permitted to remain in Hong Kong as a visitor until 9 February 2003. On 16 March 2005, he was arrested by the police in Hong Kong for remaining illegally and for using an identity card relating to another person. He was subsequently convicted and sentenced to imprisonment of 9 months. Upon his discharge from prison on 14 September 2005, he raised a torture claim on 15 September 2005.

4.  The 2^nd applicant claimed that she entered Hong Kong illegally with the 3^rd and 4^th applicants on 19 March 2007. They surrendered to the Immigration Department on 30 March 2007 and the 2^nd applicant raised torture claims for herself and on behalf of the 3^rd and 4^th applicants on 27 September 2007. After the birth of the 5^th applicant on 9 October 2009, a torture claim was also raised on his behalf on 22 November 2010. The Director of Immigration (“the Director”) treated and assessed the torture claims of the 1^st to 5^th applicants as a joint torture claim.

5.  Pending the determination of their joint torture claim by the Director, the 1^st to 5^th applicants jointly lodged a claim for protection against torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) on 4 June 2013. Their CIDTP claims were taken as a non-refoulement claim and assessed on all applicable grounds other than torture risk.

6.  In gist, the 1^st applicant’s claim was made on the bases that (1) he would be harmed or killed by some Sunni Muslims due to his change of religious belief from Sunni Muslim to Shia Muslim in 2000; and (2) he feared that he would be arrested and prosecuted in Pakistan as he had been falsely accused of being involved in the murder of a Sunni Muslim during a fight between the Sunni Muslims and the Shia Muslims arising from a land dispute in his home village in 2002. The 2^nd applicant’s claim was based on the same fear of risk of harm due to her conversion from Sunni Muslim to Shia Muslim in 2000. Insofar as the 3^rd to 5^th applicants were concerned, their claims stemmed from their status of Shia Muslims and their parents’ risk of detention, torture and persecution.

The Director’s decisions

7.  By a Notice of Decision dated 8 November 2013, the Director rejected the applicants’ joint claim on torture risk[2]. The Director found that even leaving aside the issue of credibility and taking the applicants’ claims at the highest based on their assertions, the alleged verbal and physical violence claimed to be faced by the applicants if they were to return to Pakistan did not amount to “torture” within the meaning as defined under section 37U(1) of the Immigration Ordinance, Cap 115. The Director did not find any state involvement in the dispute between the applicants and the Sunni Muslims. The Director considered that there is no real risk of torture upon the applicants’ refoulement.

8.  By a further decision dated 21 June 2017, the Director rejected the applicants’ joint claim on all applicable grounds other than torture risk, covering BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5]. The Director found that the applicants’ assertions of harm and threats were either based on hearsay information or mere speculation without any objective evidence in support. The Director did not accept that there will be any real and substantial risk of the applicants being harmed or killed by Sunni Muslims upon their refoulement. The Director also held that the availability of state protection and internal relocation alternatives in Pakistan further lowers or negates the perceived risks.

The Board’s decision

9.  The applicants appealed against the first decision of the Director to the Board on 22 November 2013. On 17 March 2014, the Board adjourned the applicants’ appeal against the first decision of the Director pending the Director’s determination of their non-refoulement claims on other grounds under the unified screening mechanism. As earlier mentioned, the Director issued a further decision on 21 June 2017. Hence, the Board considered both decisions of the Director in its determination.

10.  A hearing was conducted before the Board on 5 July 2018 with a male Pakistani interpreter and the applicants were legally represented by the assigned duty lawyer. At the beginning of the hearing and through their solicitor Mr Daly, the 1^st applicant requested for an Indian interpreter and the 2^nd applicant insisted on having a female interpreter. The Board declined the 1^st and 2^nd applicants’ respective requests for change of interpreter. The 2^nd applicant then left the hearing without giving any oral evidence. The hearing was attended by the 1^st applicant, during which he gave oral evidence with assistance from the interpreter.

11.  The Board found that the 1^st applicant’s case was based purely on hearsay evidence. The Board did not accept that the 1^st applicant was a target of Sunni Muslims, but found that he is a fugitive from the law. Further, the Board did not accept that the 2^nd to 5^th applicants were targeted by the Pakistani government. Having considered the evidence, the Board found that the applicants had failed to show a real risk of harm if refouled to Pakistan and the 1^st and 2^nd applicants’ alleged injuries or ill-treatments had not attained the requisite minimum level of severity. The Board also assessed that state protection and internal relocation alternatives are available to the applicants based on the available Country of Origin Information (“COI”). Therefore, the Board held that the applicants have not made out a case in respect of any of the four applicable grounds and rejected the applicants’ appeal on 7 March 2019.

The intended judicial review

12.  The applicants obtained an anonymity and sealing order on 22 March 2019.

13.  The applicants filed a Form 86 and an affirmation of the 1^st applicant on 3 June 2019 to seek leave to apply for judicial review against the Board’s decision pending their legal aid application for their leave application for judicial review.

14.  The applicants were granted legal aid on 19 March 2021 and were legally represented by Mr Francis Ngan of counsel in the proceedings before the judge. Pursuant to the order by the judge dated 23 February 2023, the applicants were granted leave to amend Form 86.

15.  In the amended Form 86 filed on 17 March 2023 (“the Amended Form 86”) and the applicants’ skeleton argument lodged on 12 April 2023, the following grounds were advanced by them in support of their intended judicial review:

(1)  the hearing was unfair because the Board refused to accede to the 1^st and 2^nd applicants’ respective requests for change of interpreter;

(2)  the Board committed multiple errors of law in assessing the evidence before it and in making its findings of fact and on credibility in the applicants’ case;

(3)  the Board failed to make inquiry into all relevant country conditions and failed to give adequate reasons for its findings;

(4)  the Board failed to apply or properly apply the relevant legal principles concerning the availability of state protection and internal relocation alternatives;

(5)  the Board failed to consider or properly assess the 2^nd applicant’s allegations of impropriety against the police in Pakistan and the possibility of the 1^st applicant being called as a witness for the prosecution in the case of the murder of a Sunni Muslim;

(6)  the Board erred in failing to apply or properly apply the relevant principles concerning whether or not international protection should be withdrawn from the 1^st applicant because he had committed a serious non-political crime; and

(7)  the Board failed to separately assess the non-refoulement claims of the 3^rd to 5^th applicants given that they were all minors at the time of the Board’s decision.

The Judge’s decision

16.  The judge considered the application and the oral submissions made by counsel for the applicants in the hearing on 18 April 2023. In the hearing, the judge granted leave to the 2^nd applicant to adduce evidence to address the issue whether any reason had been submitted to the Board regarding her request for a female interpreter.

17.  Having considered the affirmation of the applicants’ solicitor Mr Daly filed on 2 May 2023, the judge considered it was not appropriate for the Board to state that the 2^nd applicant did not mention the reason for her request. However, the judge held that the 2^nd applicant might give evidence on other non-sensitive issues. Even if the Board had committed procedural irregularity in refusing her request for a female interpreter, the court still has to assess other issues, such as state protection and internal relocation, to determine whether the 2^nd applicant has a realistic prospect of success for judicial review of the Board’s decision. The judge found no evidence to refute the Board’s findings on the availability of state protection and the viability of internal relocation in Pakistan.

18.  The judge further found that the 1^st applicant had not suffered any prejudice because of the Pakistani interpreter during the hearing before the Board. Ground (1) therefore failed.

19.  As for ground (2), the judge held that the Board was entitled to consider the evidence before it, to exercise its discretion to accept part of a witness’s evidence and reject other parts, and to decide on the weight to be given to the evidence that it considered not believable. The judge found no valid basis to interfere with the Board’s assessment of evidence and credibility and its findings of fact in the applicants’ case.

20.  The judge also rejected grounds (3) and (4) as he found that the Board had assessed the applicants’ claims based on the relevant COI and he did not find any merits in their complaints under these two grounds. The judge did not accept that the applicants’ challenges to the Board’s assessment of COI were grounds for judicial review and found that the Board’s approach of making reference only to the COI which the Board considered relevant and excluding the outdated or irrelevant COI was justified on the basis of saving time and costs for the proceedings. The judge further criticised the practice of the applicants’ solicitors in supplying the Board with “huge amount” of COI, which would inevitably increase time and costs for the proceedings in the Board and before the court. The judge disallowed the costs incurred by the applicants for the COI which were deemed irrelevant to the proceedings before the Board and before him.

21.  The judge considered that ground (5) was also without merits as the allegation of the 2^nd applicant against the police in Pakistan was already rejected by the Board due to lack of evidence. In any event, she would not face any real risk of harm in Pakistan given the availability of state protection and the viability of internal relocation. As to the other complaint relating to the possibility of the 1^st applicant being called as a prosecution witness, the judge did not accept that it would form any part of the applicable risks in support of the applicants’ claims.

22.  The judge rejected ground (6) as he was not satisfied from the existing evidence that Pakistan is an authoritarian regime that can easily commence criminal prosecution against a targeted political dissident under a very serious offence.

23.  As for ground (7), the judge pointed out that the applicants were legally represented before the Board, but neither the applicants nor their legal representative had put forth any child-specific claims for the Board’s consideration. The judge was satisfied that the Board was entitled to deal with the 3^rd to 5^th applicants’ cases on the evidence and their solicitor’s submissions. Hence, there was no merit in respect of ground (7).

24.  The judge concluded that there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 8 June 2023. In dismissing the leave application, the judge also ordered, among other things, that the anonymity order obtained by the applicants be lifted.

Grounds of appeal

25.  The applicants filed a Notice of Appeal on 10 August 2023 in which they merely stated that the judge’s decision was reached unreasonably.

26.  On 14 September 2023, the applicants were granted legal aid to prosecute this appeal. On 25 September 2023, the applicants’ solicitors assigned by the Director of Legal Aid filed a Notice to Act for the applicants. By a letter dated 26 October 2023, the Board indicated its neutral stance in the appeal and sought to be excused from the hearing of the appeal. On 31 October 2023, the solicitors filed a Supplemental Notice of Appeal and a written consent to act for the 1^st applicant as the next friend of the 5^th applicant in this appeal.

27.  The grounds of appeal stated in the Supplemental Notice of Appeal and in their skeleton argument lodged on 6 February 2024 may be summarised as follows:

(1)  the judge failed to find that the Board erred in refusing the 1^st and 2^nd applicants’ requests for change of interpreter at the hearing before the Board. The judge also erred in finding the 2^nd applicant could answer questions from the Board on non‑sensitive issues through the male interpreter;

(2)  the judge failed to find that the Board erred in considering and assessing the applicants’ evidence. The judge erred in taking a broad-brush approach in reviewing the Board’s decision, but not with anxious scrutiny;

(3)  the judge failed to find that the Board did not assess independently all the relevant COI in reaching the finding on the availability of state protection and internal relocation, as the Board had selectively copied the COI from the Director’s second decision and did not go beyond the quoted COI considered by the Director (“COI Ground”);

(4)  the judge erred in making contradictory factual findings concerning the 2^nd applicant’s claim against the police in Pakistan and in rejecting the possibility of the 1^st applicant being called as a witness for the prosecution as part of the applicants’ claims;

(5)  the judge erred in reversing the burden of proof on the applicants to show on the evidence that the Pakistani government was an authoritarian regime in issuing the First Information Report against the 1^st applicant; and

(6)  the judge erred in rejecting any child-specific risk in the 3^rd to 5^th applicants’ claims merely because they had been legally represented in the proceedings before the Board and the Board found there was no child-specific risk advanced by their lawyer (“Separate Consideration Ground”).

28.  The appeal was originally scheduled to be heard on 5 March 2024. Shortly before that date, by a joint letter dated 1 March 2024 from the applicants and the Director as the putative interested party, they requested an adjournment of the appeal. The court was informed that the applicants were in negotiation with the Director to explore alternative means to dispose of the appeal. The Court of Appeal vacated the hearing and the parties were directed to inform the court of the progress made within three months.

29.  Subsequently, by a joint letter dated 18 April 2024 from the applicants and the Director, they informed the Court of Appeal that they have reached an agreement that this appeal should be allowed on the COI Ground and the Separate Consideration Ground. They also agreed that if this court decides to allow the appeal on those two grounds as proposed, the Board’s decision should be quashed and the applicants’ non-refoulement claims should be remitted to the Board (differently constituted) for fresh determination. They further invited this court to approve the proposed terms of the draft consent order enclosed with their joint letter to give effect to their agreement.

30.  As acknowledged in the joint letter dated 18 April 2024, the Court of Appeal will only allow an appeal by consent when it is satisfied that it is appropriate to do so. See Johannesen v Cibean Development Co Ltd [1998] 2 HKLRD 106 at 112A to 113A; Store Friendly Self Storage Group Ltd v. Walon Entrepreneurs Ltd [2017] HKEC 2504 at §2.

31.  Having considered the papers, we consider it appropriate to determine this appeal on paper focussing on the two grounds as proposed.

COI Ground

32.  The COI Ground relates to grounds (3) and (4) of the Amended Form 86. It was jointly submitted that the Board failed to conduct an independent assessment and to demonstrate that it was aware of the relevant information suggestive of a contrary view and had taken them into account, citing Re MI [2014] CACV 69/2014 at §40 and Ina Astuti & Ors v Torture Claim Appeal Board [2022] HKCA 448 at §37. The Board had copied part of the COI from the Director’s second decision, and there was no suggestion in the Board’s decision why any part of the COI submitted by the applicants to the Board was considered irrelevant or unnecessary[6]. The nature of the copying was such that the Board did not quote or consider any COI beyond those quoted and/or considered by the Director.

33.  We are troubled that in rejecting the applicants’ appeal, the Board has made no reference or mention about the matters advanced by the applicants in any of the updated COI. The Board was provided with the applicants’ updated COI before it gave its decision[7]. The additional COI submitted by the applicants is of relevance to their claims, as this suggests that there was insufficient response or efforts from the Pakistani government to offer protection against the sectarian violence from Sunni Muslims systematically targeting Shia Muslims. This would appear to be in contradiction with the Board’s findings. However, it is not apparent to an objective reader of the Board’s decision whether the Board had properly considered the additional COI submitted by the applicants and, if it had done so, why the Board still found that state protection was available and internal relocation remained a viable option to the applicants.

34.  In the premises, we take the view that the Board’s decision is tainted with procedural unfairness in that the Board had failed to demonstrate it had conducted an independent assessment of the COI before it and make its own findings. Leave to seek judicial review and the application for judicial review should be granted on the COI Ground. The appropriate relief would be dealt with at the end of this judgment.

The Separate Consideration Ground

35.  The Separate Consideration Ground relates to ground (7) of the Amended Form 86 concerning the failure of the Board and of the judge to separately consider the 3^rd to 5^th applicants’ claims in accordance with the principles in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971.

36.  The proper approach to deal with non-refoulement claims of minors has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53. The relevant principles may be stated as follows:

(1)  Non-refoulement claims by minors, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the minors.

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations.

(3)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

37.  It was jointly submitted that in considering child-specific claims, the Board owes a positive duty to make investigation into child‑specific risk in the 3^rd to 5^th applicants’ claims, it should not limit itself to those child-specific risks advanced by the minor applicants’ legal representatives and must also sufficiently and separately evaluate potential child-specific risks, citing Ina Astuti at §§46 to 53.

38.  The 3^rd to 5^th applicants were aged 17, 16 and 9 respectively at the time of the Board’s decision. Their claims were premised fundamentally on the 1^st and 2^nd applicants’ claims that the family would be harmed or killed by Sunni Muslims due to the applicants’ religious belief in Shia Muslim.

39.  Having rejected the 1^st and 2^nd applicants’ claims, the Board proceeded to reject the 3^rd to 5^th applicants’ claims thereby effectively treating the family’s claims as one composite claim, without giving sufficient consideration to the personal circumstances of the 3^rd to 5^th applicants, in particular, their status as Shia Muslims individually. There also does not appear to have been sufficient separate consideration on the feasibility of internal relocation of these minor applicants as well as the impact as minors in the Board’s decision with reference to all relevant COI, including the additional COI submitted by the applicants if considered by the Board to be relevant.

40.  There is force in the submission that, notwithstanding the 3^rd to 5^th applicants were legally represented in the proceedings before the Board and the Director, the Board’s jurisdiction under the statutory scheme for non-refoulement claimants is not restricted to the parameters of what was submitted by their legal representatives. Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that all relevant non-derogable rights of the applicants are given meaningful protection and the Board is required to exercise its powers to fulfil this positive duty. See Siti Naisah Tasya Stephanie, A Minor, By Her Next Friend and Mother, Siti Naisah v Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another [2023] HKCA 336 at §26, citing Chan Ki Kau v Commissioner of Police [2020] 5 HKLRD 653 at §§73-75.

41.  It would appear that the Board had not conducted its independent enquiry into whether the 3^rd to 5^th applicants’ claims would require separate consideration and assessment beyond the submissions advanced by their solicitor.

42.  For the above reasons, we think that the Board’s rejection of the 3^rd to 5^th applicants’ claims (treated as effectively subsumed within their parents’ claims) would appear to be contrary to the principles laid down in Fabio Arlyn Timogan and Re Jasvir Singh, in particular, the principle that the dismissal of the claim of a parent should not automatically lead to the dismissal of the claims of the minors without separate consideration of each of the minor’s personal circumstances. Leave to seek judicial review and the application for judicial review should also be granted on the Separate Consideration Ground.

Conclusion and orders

43.  For the above reasons, we consider it appropriate to allow the applicants’ appeal by consent on the COI Ground and the Separate Consideration Ground. We grant leave to the applicants to apply for judicial review against the Board’s decision on these two grounds, allow the application for judicial review and remit the matter to the Board for fresh determination. It is not necessary to consider the other four grounds of appeal in the Supplemental Notice of Appeal.

44.  Having considered the draft consent order submitted by the applicants and the Director, we have made the following orders:

(1)  The order made by the judge on 8 June 2023 be set aside.

(2)  For the avoidance of doubt, the anonymity and sealing order dated 22 March 2019 be restored.

(3)  Leave be granted to the 1^st to 5^th applicants to apply for judicial review on the COI Ground and the Separate Consideration Ground of the Supplemental Notice of Appeal and the application for judicial review be granted on these two grounds.

(4)  The Board’s decision dated 7 March 2019, dismissing (i) the 1^st to 5^th applicants’ appeal against the Director’s decision dated 8 November 2013 refusing the 1^st to 5^th applicants’ joint torture claim, and (ii) the 1^st to 5^th applicants’ petition against the Director’s decision dated 21 June 2017 refusing the 1^st to 5^th applicants’ joint non-refoulement claim on all applicable grounds other than torture risk, be brought up and quashed.

(5)  The 1^st to 5^th applicants’ appeal and petition be remitted to the Board (differently constituted) for fresh determination.

(6)  There be no order as to the costs of and occasioned by the proceedings here and below (including this application to allow the appeal by consent).

(7)  The 1^st to 5^th applicants’ own costs in relation to this application and of the proceedings here and below be taxed in accordance with the Legal Aid Regulations, Cap 91A.