At v. Director of Immigration and Another

HCAL 165/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 165 OF 2016

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BETWEEN

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J U D G M E N T

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I.  INTRODUCTION

1.This is an application for leave to apply for judicial review pursuant to Form 86 filed on 13 September 2016 (“Form 86”) against the following decisions:

(a)   the decision of the Director of Immigration (“DOI”) made on 26 February 2015 refusing the application by the applicant for non-refoulement protection (“DOI Decision”); and

(b)  the decision by a member of the Torture Claims Appeal Board (“Board”) / Adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) made on 30 May 2016 dismissing AT’s petition and confirming the DOI Decision (“Adjudicator Decision”).

2.I shall refer to the applicant as “AT” in this Judgment, and hereby direct that the applicant shall be named AT instead of his name in these proceedings.

3.Order 53 rule 3(3) of the Rules of the High Court (“RHC”) provides that:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; ……”

In the Form 86, AT did not ask for any oral hearing of his application for leave to apply for indicial review. Having carefully considered all the circumstances, including the Form 86 with annexed grounds and AT’s supporting affirmation, I consider it appropriate to deal with the application without a hearing.

II.  DELAY

4.It is obvious that the Form 86 was not filed within 3 months of the Adjudicator Decision. Section 21K(6) of the High Court Ordinance Cap 4 (“HCO”) provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for making of the application; and

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Order 53 rule 4(1) of the RHC provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

5.According to AW v Director of Immigration & anor,[1] whenever there was failure to act promptly or within 3 months, there was “undue delay”. Even though the court might be satisfied in light of all the circumstances there was good reason for that failure, nevertheless the delay, viewed objectively, remained “undue delay”. The court therefore retained a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considered the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

6.In Re Thomas Lai Application for Leave to Apply for Judicial Review,[2] G Lam J stated the principles to be applied in an application to extend time for judicial review, which principles were no less applicable to cases involving claims for humanitarian protection:[3]

(a)   While in the public law field it was essential that the courts should scrutinise with care any delay in making an application, the provisions of section 21K(6) of the HCO and Order 53 rule 4(1) of the RHC were not intended to be applied in a technical manner. As long as no prejudice was caused, the court would not rely on these provisions to deprive a litigant who had behaved sensibly and reasonably of relief to which he was otherwise entitled.

(b)  However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time was taken, there was a real risk that public administration would be unduly disrupted and policies and decisions put into uncertainty for many months after they had been made and acted upon.

(c)   What might constitute a good reason for extending time could not be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.

The following factors were likely of significance (but not exhaustive): (i) the length of the delay, (ii) an explanation for the delay, (iii) the merits of the substantive application, (iv) prejudice, and (v) whether the application raised questions of general public importance.[4] The factors in (i) and (ii) above may but not necessarily involve the time taken to apply for and obtain legal aid or the time taken to apply for extension of the scope of legal aid and/or to make legal aid contribution.[5]

7.Here, AT was out of time by about 15 days, which was not a significantly lengthy period. However, AT did not offer any reason for the delay in the Form 86 with annexed grounds or in his supporting affirmation. I note in the Form 86 AT gave his address as “c/o Castle Peak Bay Immigration Centre [“Centre”], 84 Castle Peak Road, Castle Peak Bay, Tuen Mun, New Territories”, but the Board by its letter dated 9 October 2016 to the court confirmed by that time AT was no longer detained at the Centre. I further note the Director of Legal Aid by memo to the court dated 5 December 2016 confirmed AT’s application for legal aid had been refused.

8.AT did not cite any period of incarceration at the Centre or any time taken for his application for legal aid as his explanation for the delay. In any event, I am mindful of the observations by the Court of Appeal in BI v Director of Immigration[6] that if an applicant wished to rely upon the time taken to obtain legal aid as an explanation for the delay in making his leave application, he should provide a full chronology regarding his legal aid application (which was expected to be verified or confirmed by the relevant legal aid officer either in a letter or by way of an affidavit) in his notice of application for leave to apply for judicial review. This was not done by AT.

9.As regards the question of substantive merits, for the reasons discussed below, there is lack of substantive merits in AT’s application. As a result, to extend time for AT’s application would be prejudicial to the putative respondents and also to public administration. For all of the above reasons, I see no cogent reason to extend time for AT’s application for leave to apply for judicial review. I now turn to the question of substantive merits in respect of AT’s application.

III.  AT’s CLAIM

10.AT was a Pakistani born at S in Punjab, Pakistan in 1984. He claimed to have read up to class 7 in a middle school. He worked in a factory from 2000 to 2009. He was single. His home was with his parents (“Parents”) in a village in S District (“Home”), but he actually lived at the factory where he worked. He also had a brother (“Brother”) who lived in Pakistan.

11.AT claimed he and his father (“Father”) were supporters of the Pakistani People’s Party (“PPP”), but neither of them were party members. The Father had been a PPP supporter since he was young, and his duties were to vote for the PPP and to arrange food for the voters during election. AT had been a supporter since birth, but he did not have any duty at the PPP.

12.The Father inherited some land of about 40 marlas (ie about 11,000 sq ft) located on the brink of a road at SP, Pakistan (“Land”) when his own father died. The Land was valuable as it was worth about 24,000,000 Pakistani rupees. AT claimed that in/about 2003 the Father transferred the Land to AT as the Father’s health became worse, so AT legally owned the Land.

13.According to AT’s torture claim form dated 7 December 2013 (“TCF”), in/about February or March 2009, the Pakistani Muslim League (N Group) (“PML-N”) which was opposed to the PPP forced AT to sell the Land to them. Then, at the screening interview conducted on 20 January 2015 (“Interview”), AT clarified that he meant T approached the Father. This was noted in paragraph 26 of the Adjudicator Decision as follows:

“In the TCF [AT] first wrote that the PML-N group forced him to sell the Land to them, but from what is written later, and the evidence as a whole, it appears that the proposed sale was in fact a private matter involving only KA and [T]. It has nothing to do with anyone’s political affiliations.”

14.KA and T owned some land on either side of the Land (“Neighbour Land”), so they were interested in acquiring the Land to build a commercial complex with a plaza on the combined Land and Neighbour Land to make money.[7] AT said KA was an influential person locally being the president of the PML-N in S City, and KA won the election at S City and was in the government (but AT forgot his position).[8] AT said T[9] was KA’s business partner and right-hand man, and a landlord who rented out shops. AT claimed both KA and T dealt with properties. The Adjudicator noted at no time did it appear there were any direct dealings between AT on one hand and KA and/or T on the other hand, and all dealings were between KA and/or T and the Father.

15.In/about February or March 2009, KA and T first approached the Father with an offer to buy the Land, but the Father told them he had transferred the Land to AT. The Father advised AT not to sell the Land to KA and T since it was an inheritance from his grandfather and the Land should stay with the family. The Father also found the price offered by KA and T of about 250,000 Pakistani rupees to be below market value.

16.One day in March 2009, T brought some unknown persons to the Home when the Parents/Brother were at home but AT was at his place of work. T and his people demanded the Father to sell the Land but the Father refused, so T and his people became angry and told the Father if he declined to sell the Land they would occupy it by force. But even though T and his henchmen were irritated by the Father’s refusal to sell the Land, they only threatened and did not physically harm him.

17.About 2 weeks after this incident, T went to the Home with 2 unknown persons 1 of whom carried a gun. AT was not present, but they threatened the Father that if he did not sell the Land at the price they offered they would take the Land by force. They spoke very loudly to the Father, and neighbours gathered to see what was afoot. When the Father told the neighbours he was being forced to sell the Land, T and his henchmen left the Home. The Father was not injured even though 1 of T’s henchmen carried a gun.

18.Then 1 day the police came to the Home and took the Father into custody at R Police Station (“RPS”). AT was not present, and the Father did not tell AT when this happened. At the RPS, the police told the Father to cooperate and sell the Land to T, and when the Father refused they kept him in custody for a week during which time T came twice to the RPS to threaten the Father to sell the Land. AT claimed the police (a) behaved like they were putting pressure on the Father to sell the Land to T, (b) tried to intimidate/ harass the Father by shouting at him and reminding him they could torture him, and (c) slapped the Father when T was there, but the Father told T he would not give him the Land no matter what happened.

19.AT thought T bribed the police to put pressure on the Father even though the Father did not commit any offence and there was no reason to detain him. The police sometimes allowed and sometimes did not allow AT’s family members to deliver food to the Father at the RPS. The police did not charge the Father for any suspected offence. After a week, the Father was released as he managed to bribe the police with a payment of about 200,000 Pakistani rupees. AT claimed the police in Pakistan worked for bribes and according to whoever bribed them more. AT and the Father did not make a complaint against the RPS for the Father’s detention.

20.About 3 weeks after the Father was released from the RPS, AT asked the Father to lodge a complaint that KA, T and his people threatened him to sell the Land, so the Father approached the RPS, but the police just told him they would write down the complaint but would not do anything against KA and T.

21.In the Interview, AT at first thought the RPS took the Father’s case and wrote down the complaint, but they did not issue the first information report (“FIR”). Later in the Interview, AT said the police issued a FIR when the Father went to the RPS to make a complaint against KA and T that they forced him to sell the Land. AT was asked to clarify the FIR issue, and he said the police wrote down the complaint but he did not know what the document was (which might be the FIR or other document). In any event, AT said he had difficulty in getting the FIR, so no such document was produced. The Father did not (a) approach another police station to lodge complaint against KA and T or (b) make any complaint to a higher authority. The police at the RPS told the Father to compromise with KA and T, and to take whatever sum they offered otherwise KA and T would continue to trouble him.

22.After the Father’s detention, about every 2 months, T and/or his people visited the Home, but they did not harm the Father anymore even though the Father continued to refuse their requests. The people who worked for T (but AT did not know their identities) asked the Father for documents and money for the Land. AT’s family did not want to sell the Land, and the Father did not give them any document or take their money.

23.AT claimed that in/about March 2009 the Father advised him to leave his hometown to get away from KA and T, so he started to escape to different places in Pakistan, staying in various addresses in S City, Shahdara in Lahore, Wazirabad in Gujrat and also Gojra in Punjab from around March 2009 to around October 2009. The Father did not escape to other places in Pakistan with AT.

24.It did not appear from the TCF or Interview that anyone came after AT after he left his place of work in March 2009 up until he left Pakistan in October 2009. At the hearing before the Adjudicator on 12 November 2015 (“Hearing”), AT said someone came looking for him when he was in Lahore, but he did not say who that was, and no one came looking for him in other places. AT’s aunt in Wazirabad feared she might be in trouble if he stayed with her, so AT went to his friend in Gojra, but his friend advised him to come to Hong Kong.

25.AT claimed he was at risk because the Land was registered in his name, but agreed that other than forcing a sale of the Land to them his enemies did not have any other reason to harm him.[10] AT had not sustained any injury as he did not encounter KA, T and their people directly. KA never directly approached AT for the Land. AT did not have any problem with the police or government in Pakistan. Although it took some time when AT applied for his Pakistani passport in 2007, he did not encounter any difficulty. He had never been accused, charged, interrogated, arrested, detained or imprisoned in Pakistan.

26.AT himself arranged the journey from Pakistan to Kashgar, Mainland China, ie he left Pakistan on 25 October 2009 and went to Kashgar by bus. Nothing special happened when he presented his passport for departure clearance in Pakistan. Upon his arrival in Kashgar, an agent helped him arrange the journey from Kashgar to Hong Kong via Urumqi, Guangzhou and Shenzhen, and AT paid the agent about RMB5,500. AT did not seek any assistance/protection when in Mainland China because he did not know about it. AT had never been convicted of any crime outside Hong Kong.

27.On 1 November 2009, AT illegally sneaked into Hong Kong from Mainland China by boat as (according to him) he could not wait for the processing of visa application. On 2 November 2009, AT was arrested by the police. On 5 November 2009, AT was referred to the DOI at the Castle Peak Bay Immigration Centre. Although AT was in Hong Kong, he was still in contact with his family members by telephone. He claimed the Land was abandoned although the Father sometimes went to check on the Land. By the time of the Hearing, AT said (a) KA and T had built on their own Neighbour Land on either side of the Land which remained vacant, and (b) it did not appear the Father had been subjected to any further ill-treatment. AT remained a supporter of the PPP.

IV.  PROCEDURAL HISTORY

28.AT by written representation dated 6 November 2009 made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Convention”) that he would be subjected to torture in Pakistan if he were to be returned there. On 13 November 2009, AT was released on recognizance. On 27 November 2009, AT submitted a letter to inform the DOI he wished to withdraw his claim because the Father told him the matter was solved as KA and T agreed to his terms and they would give him the money he wanted for the Land. But later the Father sent word to AT that KA and T were not serious in their offer, and advised AT not to go back to Pakistan. According to the Adjudicator Decision, this was canvassed at the Hearing, and it appeared AT took the view there was no genuine offer, so he decided to stay in Hong Kong to pursue his claim. AT subsequently wrote to inform the DOI he wished to continue with his claim.

29.The processing of AT’s claim under the Convention was not completed under the previous screening scheme. Upon commencement of the unified screening system (“USM”) on 3 March 2014, AT’s claim was taken to be a non-refoulement claim, and was assessed under the USM then in place.

30.AT’s non-refoulement claim was considered on all applicable grounds under the USM including:

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

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 of the Hong Kong Bill of Rights (“BOR3”) and section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BOR3 Risk”);

(c)   risk of persecution with reference the non-refoulement principle contained in article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

31.By a Notice of Decision dated 26 February 2015, the DOI rejected AT’s claim. AT appealed/petitioned against the DOI Decision. The appeal/petition was dealt with by the Adjudicator by way of oral Hearing. AT gave oral evidence at the Hearing, and was questioned by the Adjudicator. AT put in evidence a video of the people being beaten with a transcript of voices and translation thereof (“Video”), which he claimed would support what he said about police corruption in Pakistan generally, but the Video had no direct relevance to his own case. By the Adjudicator Decision dated 30 May 2016, the Adjudicator dismissed the appeal/petition and confirmed the DOI Decision.

V.  BASIS FOR AT’s NON-REFOULEMENT CLAIM

32.AT claimed his life would be in danger if he went back to Pakistan because the Land was in his name. AT further claimed he would be killed or harmed by KA, T and their people in Pakistan because they wanted to force him to sell the Land to them. AT did not believe the police in Pakistan could help protect him because (a) they were corrupt and (b) his opponents were powerful and influential.[11] AT also alleged that as soon as KA and T knew his whereabouts he would be in trouble, and in any event he had no place to live as no one would help him move elsewhere in Pakistan.

VI.  FINDINGS BY THE ADJUDICATOR

33.At the Hearing, AT adopted as evidence the factual matters appearing in the TCF, his Notice of Appeal / Petition, and the Interview. There was a supplementary claim form filed, but it referred back to the TCF. AT also gave evidence at the oral Hearing.

34.The Adjudicator took the view that since AT alleged he was at risk of harm because the Land was in his name, the question of whether he did own the Land was fundamental to his claim, especially when all dealings had been between KA / T and the Father rather than AT himself. After all, the whole tenor of AT’s case was that KA and T, whether personally or with police assistance, were trying to force the Father rather than AT to sell the Land. Further, the TCF and Interview did not explain why T persisted in trying to force the Father to sell the Land rather than to locate AT who was working at S (who was about 30 minutes away by bus from the Home) especially when AT claimed the Father had told T that he had already transferred the Land to AT when T first approached him. So in April 2015 the Adjudicator wrote to AT directing him to produce documentary proof of the transfer of title of the Land to him, but no such document was produced. At the Hearing, the Adjudicator again raised the question of AT’s ownership of the Land, and he again asked AT if he had any document of title. AT’s answer was the Father had been to some office and “told them that it was under [AT’s] name”. The Adjudicator asked if the Father had paid any kind of stamp duty on the transfer, but AT did not know except to say the Father would have paid what was payable.

35.The Adjudicator also asked AT (a) how he came into the picture since his whole case was based on attempts to force the Father rather than himself to sell the Land, and (b) what was the then current position with regard to the Land. On (a) above, AT said he was not living at the Home but at the factory where he worked, which was 30 minutes away from the Home by bus. On (b) above, AT said KA and T had built on their own Neighbour Land on either side of the Land which remained vacant, and it did not appear the Father had been subjected to any further ill-treatment.

36.The Adjudicator accepted (a) the Land existed and (b) there had been attempts by KA and T to force a sale of it with police assistance, which evidence was credible enough given some Country of Origin Information (“COI”) that showed police corruption and abuse was not uncommon.[12] But upon evaluation of the evidence before him, the Adjudicator doubted whether AT owned the Land, and found it more probable that the Father owned it, so AT should not face any real chance of ill-treatment from KA and T.

37.The Adjudicator concluded there was no good evidence the Land was in AT’s name. AT did not say he had seen any official record of transfer of the Land from the Father to him, he had no direct/personal knowledge he owned the Land, and he did not produce any official record even though directed to do so. At best it appeared the Father told AT the Land had been transferred to him by the Father taking some official steps to do this at some unspecified office. The Adjudicator found there was no way to confirm the reliability of such hearsay. Notwithstanding AT as a refugee claimant could not be expected to leave Pakistan armed with all documents he might need in future, the Adjudicator noted AT confirmed he was still in touch with the Father, so if an official record existed, the Father as transferor would have a copy of that record or would at least be able to get a copy from the office where the transfer was done.

38.AT’s whole case was KA and T with police assistance sought to force the Father into selling the Land cheaply, and even though AT claimed (which only appeared in the Interview) the Father told them of transfer of the Land to AT they still made the Father the victim by forcing him as the one who had the power to sell rather than forcing him in order to make AT sell. The Adjudicator observed AT did not say the Father told the police he was not the owner of the Land even though one would have thought the Father would have told the police about this when he was detained, and if he had the police might have looked for AT or told KA and T to look for AT, but all AT said was the Father bribed the police (ie outbid KA and T in bribes) to let him go. Further, no one (whether KA, T or the police) seemed to have looked for AT at his place of work which was not very far from the Home. Although AT said someone came looking for him at Lahore, his evidence on this was vague and added at a late stage, which the Adjudicator regarded as doubtful.

39.The Adjudicator said the difficulty with AT’s case was the “whole land-grabbing exercise” targeted the Father as the one who could sell the Land and AT never came into the picture. Although AT said he was at risk because he owned the Land, the sole evidence of ownership was AT’s hearsay evidence of what the Father had told him, but no one else (whether KA, T, police and/or Father) seemed to have acted on any basis than it was the Father who owned the Land. Hence, the Adjudicator concluded it was more probable the Father (and not AT) owned the Land. But nevertheless the Adjudicator went on to consider the risk AT might face if he were indeed the owner of the Land.

40.As regards the Torture Risk, AT said he feared KA and T would kill him if he went back to Pakistan. According to his oral evidence at the Hearing, AT seemed to think if he were killed they would have found it easier to get the Father to sell the Land. But in reality, years after the incidents that AT complained about, the Father suffered no further ill-treatment, the Land remained unoccupied, and KA and T had proceeded to build on the Neighbour Land on either side of the Land but left the Land alone (ie they did not take it over by force as AT said they originally intended to do), so the Adjudicator concluded KA and T had given up their attempts to force a sale of the Land from whoever owned the Land, so it followed that even if AT owned the Land, there should be no real chance they would try again to force him to sell the Land.

41.In 2009, AT never came into the picture. The Adjudicator accepted the Father was held by the police, but noted he did not appear to have been subjected to severe pain and suffering. There was mention of the police slapping him, but AT could not put it higher than that. The Adjudicator found that whilst there was evidence the police acted for KA and T against the Father so the necessary element of state involvement in the infliction of pain and suffering could be found to have existed, the inference from what was actually done to the Father was that if further attempts were made to force whoever was the owner to sell, it was unlikely any such attempt would involve the infliction of pain and suffering so severe as to amount to torture.

42.AT mentioned a death threat, but in looking at the situation before him (ie where no action had been taken since 2009 to try to force a sale of the Land or to actually take over the Land illegally) to assess the likelihood of its being carried out, the Adjudicator could not see there was a real chance of that happening.

43.The Adjudicator also considered the situation of Pakistan in light of the more up-to-date COI available which showed there appeared to have been some improvements in police professionalism, and the citizens also had other avenues to make complaints.[13]

44.Taking the above matters into account, the Adjudicator concluded AT faced no foreseeable, real, personal and present risk, or no real chance, of torture in terms of the Convention. He found it was unlikely any further attempt to force a sale would be done with police assistance, and if it were AT would have other avenues of complaint.

45.As regards the BOR3 Risk, the Adjudicator reiterated what he had said above as regards the Torture Risk, and found what was done to the Father would not reach the minimum level of severity required for torture or CIDTP under BOR3. Even if AT owned the Land, the inference was he faced no real risk of sufficiently severe ill-treatment to bring BOR3 into play. In any event, the police should be able to protect him, and if they would not he had other avenues of complaint. The Adjudicator concluded there was no substantial risk or no real chance of torture or CIDTP under BOR3.

46.As regards the Persecution Risk, the Adjudicator found there was no evidence anything KA and T had done to the Father was done on account of race, religion, nationality, membership of a particular social group or political opinion. Rather, it was done on account of their perceived ownership of the Land to force him to sell it off cheaply. The Adjudicator concluded if there was a risk, it was not a Persecution Risk.

47.The Adjudicator said since AT could not make out his case for protection on any ground, it was not strictly necessary for him to deal with the question of internal relocation, which would only come into play where there was a real chance of harm that might thereby be avoided. But he did so out of caution in case he was wrong on the assessment of the risk AT faced.

48.The Adjudicator noted AT was an able-bodied man and an experienced factory worker. He worked away from home (although not far away) in a factory at S, so in principle there was no reason why he should not work anywhere in Pakistan where he could have found a factory to employ him. The Adjudicator asked AT at the Hearing why he could not go and work somewhere else in Pakistan which was a large country, and his answer was once KA and T knew his whereabouts they could come and kill him as KA was in the PML-N (which had their resources) and could find him if he wanted. But the Adjudicator noted there was no evidence other than AT’s assertion that PML-N had resources to find anyone they wanted in Pakistan, or if PML-N had such resources it would use them in that case.

49.In fact, AT stayed in Pakistan from March 2009 (when he left his factory job) until he left Pakistan in/about October 2009 prior to arriving in Hong Kong in November. During this period, he stayed in Lahore, Wazirabad and Gojra, and no one found him. The Adjudicator found the incidents that AT complained about were local matters involving local people at AT’s home village, and he did not see any real likelihood that if AT were to relocate to some large industrial city in Pakistan KA and T would be particularly able to trace AT. Even though in theory anyone could employ detectives and the like, the Adjudicator could not see the danger to AT (if there was any real danger) was such that it would be unreasonable or unduly harsh to expect him to relocate within Pakistan. So the Adjudicator was satisfied that even if he were wrong about his findings above and AT would have real risk of harm if he went back to his own home area, AT could have avoided such risk by relocating elsewhere in Pakistan, eg to some industrial area where he could find factory work, and it would not be unreasonable or too harsh to expect him to do so.

50.On the aforesaid basis, the Adjudicator dismissed AT’s appeal, and confirmed the DOI Decision.

VII.  RELIEF SOUGHT

51.If leave to apply for judicial review were granted out of time, AT would seek to inter alia quash the DOI and Adjudicator Decisions.

VIII.  INTENDED GROUNDS OF REVIEW

52.In the Form 86, NS sought leave to apply for judicial review on 3 grounds:

(a)   failure to give sufficient weight to the element of state acquiescence or extended concept of state acquiescence (against the DOI and Adjudicator Decisions);

(b)   failure to consider or give sufficient weight to and/or to give reasons for rejecting relevant COI, which led to a speculative and impractical outcome (against the DOI Decision[14]), and

(c)    failure to attain the high standards of fairness required by the Wednesbury[15] test[16] (against the Adjudicator Decision).

53.On the 1^st ground in paragraph 52(a) above, AT claimed the DOI failed to appreciate the presence of state acquiescence in AT’s case, which contributed to the unfair outcome of ultimate rejection of AT’s claim. Paragraphs 6.9-6.11 of the DOI Decision mentioned the Father was detained at RPS and had to pay a bribe to the police for his release, and later when AT and the Father[17] went to the same police station to lodge a complaint against KA and T the police did not register a FIR (but see paragraph 21 above). Further, the police assisted KA and T to force AT and the Father[18] to sell the Land, which AT claimed was police misconduct. AT further complained the Adjudicator erred in a similar way. Although paragraph 49 of the Adjudicator Decision accepted the Land existed and there had been attempts by KA and T with police assistance to force a sale of it, the Adjudicator failed to appreciate the presence of state acquiescence in that the state and its public officials failed to provide reasonable protection for its citizens under the duty of due diligence.

54.AT argued the DOI and Adjudicator both failed to give sufficient weight to the element of state involvement, state acquiescence and/or extended concept of state acquiescence as explained in MI[19] and MDB v Betty Kwan & anor[20]in reaching their decisions on AT’s non-refoulement claim. It was said “[the] scope of the said liability should in turn be limited to where the home state does not necessarily remove all possible risks of the [Convention] Article 1 ill-treatments”. AT accepted protection would be considered reasonable and sufficient if there was an effective criminal system within the state which would lead to criminal process against the law-breakers on a non-discriminatory basis, but contended that an existing pattern of gross, flagrant or mass violation of human rights within the state was also a relevant factor when considering the issue of state involvement.

55.Strangely, the Form 86 put forward the following in relation to the 1^st ground:

“14. Regardless of the India government’s well-intention to prevent torture treatments upon [AT], the State would nevertheless breach its duty of due diligence if the government mechanisms in force (such as the police and the judicial organs) are considered to be ineffective in practice.

15. Correspondingly, albeit the presence of relevant legislations aiming to protect [AT] from risks of torture, the State remains liable for breaching its duty of due diligence if there are evidences to show that the legislations are practically ineffective. Such stand was re-instated by McWalters J (as he then was) in the case of JFK.” (my emphasis)

It is not understood how matters concerning the Indian state/government would be relevant since AT’s country of origin was Pakistan. Further, the DOI and Adjudicator Decisions did not appear to rely on any particular legislation within Pakistan.

56.On the 2^nd ground in paragraph 52(b) above, AT claimed even though paragraph 13.5 of the DOI Decision listed relevant COI materials which supported AT’s stance about widespread corruption in Pakistan, the DOI failed to consider or give sufficient weight to such relevant COI that supported AT’s case rather than the conclusion in the DOI Decision. AT also claimed the DOI failed to observe up-to-date COI with both broad and general relevance and/or also information related to a person in similar profile as AT.

57.AT argued that although paragraph 13.6 of the DOI Decision cited different sources to suggest there were improvements in police professionalism and average citizens had some avenues of recourse if a police officer did not fulfil his duties or engaged in active wrongdoing, such conclusion was speculative and impractical. In this respect, AT cited the news “Pakistan police a winner according to Transparency International” by Dr Ayesha Khan posted on the internet on 17 October 2015 that in turn referred to (a) a survey conducted by Transparency International in 2013 which showed the police was the most corrupt institute in Pakistan, and (b) the 2014 Corrupt Perceptions Index published by Transparency International that showed Pakistan ranked 126^th in the world amongst 175 countries, which was a low corruption score. It was said these COI reinforced AT’s stance that the corruption issue in Pakistan was still serious and the state failed to provide reasonable protection to the citizens. It was also said the DOI erred in law by not having sufficient regard to AT’s case in relation to COI.

58.AT cited MDB to contend that even if the DOI had considered relevant COI during the screening process, he failed to give adequate reasons why these materials were considered irrelevant or not influential to the final outcome. AT further suggested the DOI and Adjudicator ought to decide on AT’s case after considering all evidence as a whole, but with the abundance of evidence and COI contrary to their decisions they had erred in law in failing to consider or give sufficient weight to relevant COI before reaching the DOI and Adjudicator Decisions.

59.On the 3^rd ground in paragraph 52(c) above, AT cited BI and complained that despite the oral Hearing the Adjudicator Decision failed to attain the high standards of fairness required by the Wednesbury test (which required the decision-maker to have regard to whether reasonable protection had “in fact” been provided to AT and not merely what the state “would be able to” provide) by reason of the matters raised in the 1^st and 2^nd grounds (ie the Adjudicator applied the wrong test by merely asking himself what the state “would be able to” provide). AT argued it was mere speculation for the Adjudicator to find in paragraph 57 of the Adjudicator Decision that there had been some improvements in the Pakistani police, and that the citizens had other avenues of recourse. So it was said the Adjudicator had an unreasonable understanding of AT’s basis of claim, and the Adjudicator Decision was an unreasonable decision.

IX.  LEGAL PRINCIPLES

60.Judicial review is not a further/alternative appeal procedure.  In the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar,[21] and (c) whether the substantive decision satisfied the enhanced Wednesbury test.In a leave application, the applicant must show his/her intended grounds in support of the intended judicial review are reasonably arguable with a realistic prospect of success.[22]

X.  DISCUSSION ON SUBSTANTIVE MERITS

61.The starting point is that the Form 86 did not raise challenge against the factual findings/inferences made by the Adjudicator after considering the evidence before him (including AT’s oral evidence at the Hearing) that (a) AT’s hearsay evidence of what the Father told him as to his ownership of the Land was not shown to be reliable, (b) KA and T with police assistance forced the Father (as the one who had power to sell the Land) to sell the Land cheaply, and they did not force the Father in order to make AT sell the Land, (c) the Father did not tell the police he was not the owner of the Land even when he was detained and when T came around to the RPS to threaten him, (d) no one came to look for AT at his place of work (which was not far away from the Home) or anywhere else in Pakistan[23] to force him to sell the Land,[24] (e) the “land-grabbing exercise” targeted the Father and not AT such that KA, T and the police acted on the basis that the Father owned the Land, (f) after AT came to Hong Kong KA and T built on the Neighbour Land on either side of the Land but left the Land untouched (ie they had not taken over the Land as they had threatened) from which it was concluded KA and T had given up on their intention to force a sale of the Land, (g) so even if AT owned the Land there was no real risk/chance that KA and T would try again to force him to sell the Land, and (h) hence there was no chance of the alleged death threat being carried out. Such findings formed the basis of the Adjudicator’s conclusion that it was more probable that the Father rather than AT owned the Land, and AT himself should not face any real chance of ill-treatment from KA and T.

62.The above findings by the Adjudicator were reasonably open to him on the basis of the available evidence. AT was also given opportunity to adduce documentary evidence of his ownership of the Land, and he was also given opportunity to give explanation at the Hearing. In the absence of challenge to these findings by the Adjudicator, I am not persuaded the 3 grounds referred to in paragraph 52 above, all which were premised on the risk AT might face if (a) he was indeed the owner of the Land and (b) he faced real chance of ill-treatment by KA and T who would force him to sell the Land to them if he returned to Pakistan (which factual premise the Adjudicator rejected), was sustainable on the basis of the threshold requirement for leave to apply for judicial review as explained in paragraph 60 above. Nevertheless, for completeness, I will deal with each of the 3 grounds below.

(a)  State involvement/acquiescence

63.AT complained the DOI and Adjudicator failed to properly take into account the existence of state involvement and the concept of state acquiescence and/or extended state acquiescence, and failed to properly apply “[paragraph] 18 of General Comment No 2 of the UN Committee Against Torture” (“General Comment”) that provided guidelines to the interpretation of the extended concept of state acquiescence.[25] I assume this was a complaint that the Pakistani government was aware of the seriousness of corruption problem in the police force and did not exercise due diligence to control the situation.

64.In AM v Director of Immigration & anor,[26] McWalters J (as he then was) cited the General Comment, and pointed out there could be active and passive state acquiescence. The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actor. The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor. In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor. 

65.Here, it was clear from the DOI and Adjudicator Decisions that the DOI and Adjudicator were well aware of the involvement of the Pakistani police in this case. Indeed, the Adjudicator accepted there had been attempts by KA and T to force a sale of the Land with police assistance, and that there was evidence the police acted for KA and T against the Father such that the necessary element of statement involvement in the infliction if pain and suffering could be found to have existed.[27]

66.For extended state acquiescence, the DOI considered various COI materials. As explained above, the DOI accepted there were reports that the Pakistani police had poor reputation amongst the public whose mistrust was so embedded that citizens seldom reached out to them even at times of crisis, that the police could be bribed and were perceived to be corrupt, and that their effectiveness varied greatly by district with frequent failure to punish abuses,[28] but the DOI also noted there were recent reports that revealed the Pakistani government had taken steps to improve police professionalism/discipline, and the average citizen had some avenues of recourse if a police officer did not fulfil his duties or engaged in active wrongdoing.[29] In short, the DOI considered COI both against and in favour of the existence of state protection before concluding steps had been taken to improve police professionalism and reduce corruption in Pakistan, and reasonable state protection would be available if resorted to upon AT’s return to Pakistan.[30] In my view, the concept of extended state acquiescence was live in the mind of the DOI, and with improving state protection as found by the DOI, I rejected the intended 1^st ground of review vis-à-vis the DOI Decision.

67.More importantly, the principle of extended state acquiescence in no way lessens the importance of demonstrating that the claimant personally be at risk. For the purpose of making his determination, the Adjudicator found against AT so there was no case of AT being personally at risk of torture, cruel and inhuman treatment (see paragraphs 61-62 above). As explained in TKv Jenkins & anor (“TK(CA)”),[31]

“29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she could return. ……”

On such basis, there was in principle no duty on the part of the Adjudicator to go further to consider and assess whether state protection existed in Pakistan under the extended meaning or whether any “reforms and avenues of redress” by the Pakistani state were effective.

68.Nevertheless, the Adjudicator went on to consider the issue out of caution. Paragraphs 5-6 of the Adjudicator Decision properly encapsulated the clear principles of state acquiescence and extended concept of state acquiescence. The Adjudicator was alive to these considerations in the situation of AT (see paragraph 65 above), and he also considered COI materials that showed some improvements in police professionalism and citizens having some avenues of complaint in Pakistan.[32] In all, I find this intended ground of review untenable.

(b)  COI

69.In Prabakar, Li CJ commented on what high standards of fairness require in relation to torture claims:

“…… (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”[33]

70.What would satisfy the requirement of high standards of fairness would inevitably vary from case to case.[34] It was said in Prabakar that it would not be appropriate for the Secretary for Security to sit back and put the applicant to strict proof, but he instead should draw the applicant’s attention to issues which obviously required clarification/elaboration and/or instances where it was readily apparent that something had gone amiss.[35] After all, the exercise for determining the claim was a “joint endeavour”.[36] This approach recognised that an applicant might be disadvantaged in presenting to the DOI information / materials he might need to establish his claim or the DOI might need to process it,[37] and depending on the facts and issues raised in a case, high standards of fairness might require the DOI to conduct investigation and obtain relevant information and materials on general country conditions.[38]

71.But there would be limits to what high standards of fairness would require of the DOI. The Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. In TK(CA), Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”.[39] High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the DOI to disprove it.[40] “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim. Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [DOI] to process it.”[41] If the applicant and his legal representatives had not seen fit to obtain and supply such information to the DOI, high standards of fairness would not require the DOI to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.[42]

72.McWalters J (as he then was) in AM v Director of Immigration & anor[43] reiterated the separate roles played by the applicant and the DOI in the “joint endeavour”. The claim was that of the applicant who bore the ultimate responsibility for it throughout the processing of it. The burden of proof always remained on the applicant being the person claiming protection from refoulement.[44] On the other hand, the DOI had a reactive role, which was “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [DOI’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.[45]

73.There was no direct statement in the materials before me as to whether AT was represented and assisted by the Duty Lawyer Service (“DLS”) when the DOI considered his claim. It was probable that AT was so assisted since the DOI served the DOI Decision to AT “c/o Duty Lawyer Service CAT Office”. But for the present purpose I shall assume AT was not so assisted.

74.Here, the complaint was that the DOI failed to give sufficient weight to the relevant COI materials listed in the DOI Decision which supported AT’s stance of widespread corruption in Pakistan, and/or to delve more deeply into up-to-date COI material. But in my view, the extent to which the DOI had to research into COI materials depended on how AT framed his claim. The relevant enquiry was focused on the elements of state involvement/acquiescence and the consideration of internal relocation.

75.In the DOI Decision, the DOI was aware of AT’s alleged fear of inadequate protection from the Pakistani police,[46] but the DOI also noted no attempt was made by AT or the Father to report the potential risk of harm to another police station or to higher authority. In paragraphs 4, 13.5-13.6, 14.1 and 14.3-14.4 of the DOI Decision, the DOI referred to “relevant [COI] relating to this claim” listed in the appendix thereto and/or took into account relevant country information. The DOI also quoted extensively from the COI materials.

76.On the matter of state protection, as explained in paragraph 66 above, the DOI considered the available COI materials that appeared to corroborate AT’s assertions as well as COI materials that suggested some improvements in police professionalism (including regular training in technical skills and protection of human rights for the police at all levels by the Punjabi government, and there was occasional use of mechanisms of investigations into abuses with orders for administrative sanctions) and some avenues of recourse by citizens to seek justice in Pakistan before coming to the view that there would be reasonable protection to AT on his return to Pakistan. AT drew attention to the news “Pakistan police a winner according to Transparency International” which in turn referred to the 2014 Corrupt Perceptions Index (see paragraph 57 above), but in my view the DOI could not have considered such news (and its contents) since it was posted on the internet on 17 October 2015 (ie more than 8 months after the DOI Decision). On the matter of internal relocation, the DOI noted AT actually moved around several places in Pakistan from March to October 2009 without being located by KA and T, and considered the size and population of the country[47] before coming to the assessment that the internal relocation alternative was viable.

77.Even though I have assumed AT was not assisted by the DLS when the DOI considered his claim, it could not be ignored that he took the initiative to submit the Video (of people being beaten up and the police were watching) to the DOI to support his concern that if he were returned to Pakistan the police would be bribed to behave in the same way, ie KA and T would conspire to beat him up to acquire the Land and the police would not do anything about it.[48] As evident from paragraph 26 of the DOI Decision, the DOI took into account and gave consideration to the nature of the Video and the issues which it was intended to support before concluding that it could only be of general relevance and that it had no direct pertinence to AT’s personal claim or specific case. As explained in paragraph 67 above, it is settled that the existence of a pattern of violations of human rights in a country does not by itself constitute a sufficient ground for determining that a person will be at risk of torture or CIDTP upon his return to that country. There must be additional grounds indicating the individual concerned will be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be at risk of being subjected to torture and/or CIDTP.[49] Au J also said in ST v Betty Kwan & ors,

“The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.”[50]

78.It was plain from the above AT had no difficulty in urging the DOI to consider particular COI materials. In my view, the DOI demonstrated due consideration had been given to the COI materials. Moreover, the Form 86 with annexed grounds as well as AT’s affirmation did not elicit and/or explain what other COI the DOI could have considered (apart from the internet news that post-dated the DOI Decision) and how they would have affected the DOI Decision. The DOI had demonstrated a sufficient degree of balance in his approach, and had given reasons for his views on available COI materials, which reasons could not be said to be inadequate. The criticisms discussed in AM on unqualified favourable conclusions despite inconsistent information[51] could not be properly raised here against the DOI.

79.Further, the DOI had considered AT’s case based on various matters, and the COI aspect was considered together with and in light of the findings made in relation to other matters in declining to accept AT would face genuine and substantial risk of being subjected to ill-treatment by KA and T upon his return to Pakistan. They included assessment of AT’s factual assertions carefully set out in the DOI Decision.

80.As for the Adjudicator Decision, the Adjudicator found against AT in respect of his complaint, and considered there was no case of AT being personally at risk of torture or CIDTP. Thus there was no duty on the Adjudicator to go further into the question of state acquiescence or internal relocation, and for that purpose to consider the COI materials. Indeed, Lam J in TK(CFI) said paragraph 67 that:

“If the Adjudicator were of the view that E’s perception of threat from D was unreal and the Applicant would be safe to return to A irrespective of the position of the State, he would not need to consider the question of State acquiescence at para.32.”

I note in this case the Adjudicator did as a matter of caution considered the COI materials, and also discussed/concluded that internal relocation within Pakistan was possible for AT. There is no merit to the 2^nd ground of review.

(c) High standards of fairness

81.Since the 3^rd ground of review concerning the Adjudicator’s failure to attain the high standards of fairness were premised on the vitality of the 1^st and 2^nd grounds, this 3^rd ground must necessarily fall away in view of my discussions and conclusions on 1^st and 2^nd grounds above.

XI.  CONCLUSION

82.In my view, bearing in mind the high degree of scrutiny required, neither the DOI nor the Adjudicator made any reviewable error in coming to the essential findings in their respective decisions. I find they respectively had given sufficient reasons for coming to those findings, which reasons were rational and sound. AT failed to demonstrate that any of the intended grounds of review was reasonably arguable. In all the circumstances, there was no justifiable basis for extension of time for AT to apply for leave to apply for judicial review.

83.I therefore dismiss AT’s application for leave to judicially review the DOI Decision and Adjudicator Decision in respect of his non-refoulement claim with no order as the costs.

The applicant acting in person