Nazir Qaisar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL546/2017

[2018] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 546 of 2017

BETWEEN

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

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review granted.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who entered Hong Kong illegally on 10 March 2015 by boat.  He was arrested seven days later by the police and lodged a non-refoulement protection claim on 21 March 2015.  This claim was rejected by the Director of Immigration (“the Director”) on 6 May 2016 and 24 October 2016.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which conducted an oral hearing on 10 July 2017 and rejected his appeal on 3 August 2017.  The applicant was legally represented by the duty lawyer scheme at his appeal.

2.The applicant lodged a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing.  An oral hearing was set down for 19 January 2018 and the applicant appeared unrepresented after his application for legal aid was refused.

3.The basis of the applicant’s claim was that if he were to return to Pakistan he would be arrested by the Pakistani police because he was framed by the police for the murder of Sheedi.  He was a police officer who refused to take a bribe like others in his team for murdering Sheedi when he was arrested.  He was also afraid that he would be harmed or killed by Sheedi’s family who were told by the police and believed that he had murdered Sheedi and then fled Pakistan.

4.Both the Director and the adjudicator of the TCAB have set out the applicant’s claim and evidence in their decisions, therefore I only intend to summarise it here.  The applicant was a farmer in Gujarat until 2007 when he received six months training before becoming a police constable.  He is married with two children.  He was a police constable until he left Pakistan.  He performed basic shift work, working with 60 to 70 colleagues in the Dinga police station in the Punjab.  He had never even registered a reported crime; a First Information Report.  The most senior officer the station was the station head officer (“SHO”).

5.On 10 August 2014, a dangerous and habitual criminal named Sheedi was arrested by the applicant’s police team.  He was a known robber, assassin and had murdered five to seven people.  He was on the most wanted list of the Punjab province.  However, he was from a rich and powerful family, had two brothers who were gangsters and an uncle who was a rich landowner.  His uncle was also a staunch supporter of the Pakistan Muslim League (Nawaz) and close to a Minister of the National Assembly from Dinga city of Gujarat district.  The applicant himself had seen his brothers arrested for serious crimes but subsequently released by his SHO on at least two occasions.  He knew it was because of their uncle’s good relationship and influence with the police and politicians.

6.The day that Sheedi was arrested the applicant’s team were targeting him and a roadblock was set up. He was arrested that evening between 7 and 9 PM.  Sheedi had many enemies and the applicant’s SHO, Ghulam had been bribed by an unknown person to kill Sheedi and make it look like he had been killed in a crossfire during the arrest.  Ghulam agreed and accepted the bribe.  Ghulam was to distribute the bribe money to 6 to 7 police officers of the applicant’s team and instruct them to kill Sheedi and make it look like he had died in a crossfire during his arrest. The applicant said 2 of his colleagues accepted the money but the applicant refused.  They accepted 200,000 Pakistani rupees each.  This is not the first time that Ghulam distributed bribe money to his colleagues and not the first time they had accepted.  His team members knew he did not accept bribes.  He was then sent to a nearby police check post called “Head Khokhra” that afternoon about 5 PM with others including the two that had accepted the money.

7.The applicant then said at about 10 PM that night he received a phone call from his wife who said she was very sick and he asked Ghulam who was at the check post having arrived sometime after the applicant if he could go home.  Ghulam gave him leave and the applicant left.  The applicant found out later that Ghulam did not sign him out from the duty notebook.  The applicant drove home by motorbike and arrived an hour later.  His wife was already admitted into hospital so he went with his uncle to meet her and arrived there at about 2 AM.

8.Apparently, not long after he left his post, Ghulam and the other police constables killed Sheedi at the check post where the applicant had previously been on duty.  The applicant found out that about 3 or 4 AM some police officers came to his house whilst he was at the hospital with an arrest warrant and told his family that he was to be charged with the murder of Sheedi. He apparently had killed him whilst on duty.  The applicant believes that Ghulam and the other constables have framed him for this murder because he knew that they had taken a bribe to kill him and he had refused to take part in it.  They must be worried he would tell others they had accepted money to kill him.

9.When the police did not find the applicant at home they took the applicant’s brother to the Dinga police station.  The tortured him to force him to reveal the applicant’s whereabouts and beat him with a leather strap and wooden stick.  When they took him, the applicant’s family called the applicant and told him to immediately leave the hospital in case the police came there to arrest him.  He immediately took a 6‑hour bus journey to a remote tribal area near Peshawar city to stay with a friend.  He hid there for about three months.  Sheedi’s brother called the applicant’s brother twice and threatened to kill the applicant when they found him because they believed he had really killed their brother.

10.Fearing the police would eventually find him, the applicant arranged with the help of his friend to leave Pakistan for China. He left Pakistan via Lahore airport on 14 November 2014.  The applicant knew that it would take several months before the Immigration authorities would have details of a wanted person from the police so he could safely pass through Immigration.

11.The applicant is of the view he cannot get State protection; he has first-hand knowledge of the inherent corruption of the police force and he does not trust the legal system in Pakistan.  As a policeman, he knew of too many innocent people kept in custody pending trial who were tortured or killed. Ghulam would definitely want him dead before he could disclose the bribery.  As the SHO, he looked after every case and prepared all documents.  Sheedi’s family could easily get to him in custody.  It is common that people are killed by the police in staged murders; they are called faked “encounter killings” in which police stage an armed exchange to kill an individual already in custody.  Internal relocation was also not a viable option due to the registration system in place, the police would be able to trace the applicant where ever he relocated in Pakistan.

12.The Director and the adjudicator analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

13.The adjudicator of the TCAB considered an oral hearing was appropriate. The adjudicator is required to treat the appeal/petition as a rehearing.  It requires a fresh and independent decision of the claim by the adjudicator; X v TCAB HCAL 143/2013, 4 September 2014 Zervos J §29.  The adjudicator does not discharge an appellate role.  The applicant was represented during the appeal.  The duty lawyer scheme must have considered the applicant’s appeal had merit and continued to represent him after the Director had rejected his claim.

14.The adjudicator identified the applicant’s two sources of fear but immediately dismissed the first source of fear because it arises from only allegedly hearsay.  He was told about the police coming to his home first and then he was told that Sheedi’s family had uttered death threats because they believed, having been told by the police, that the applicant had killed Sheedi.  His fear of the family seeking revenge comes from hearsay.  They have not confronted him, hurt him or inflicted severe injury.  The adjudicator finds the “hearsay allegation has led to speculation on ability to locate him, which led to killing him which is two steps removed from establishing a proper basis for applying for non-refoulement.”  This led the adjudicator to dismiss this source of fear outright suggesting hearsay is not admissible.

15.The adjudicator then considers the applicant’s evidence and found his story unreliable; he placed no weight on it.  There was no credible evidence to support his claim.  In paras 5 to 7 of his decision the adjudicator sets out the reasons he finds the applicant unreliable.  In view of his finding that nothing supports his claim the appeal is dismissed and he confirms the decision of the Director.

16.However, he then goes on to consider the applicant’s claim under all four applicable grounds on the basis that his evidence is credible.  The adjudicator considered the torture risk but he finds as the applicant has fled Pakistan in order to avoid arrest and the due process of the law, the law does not entitle a claimant to non-refoulement as “legal sanction” is excluded from the definition of torture.  Moreover, refugee law says that a person fleeing from prosecution or penalty from offences is not a refugee; the applicant is a fugitive from justice.

17.In addition, his fear of arrest by the Pakistani police was not enough.  The applicant had not provided any statistics to show that once arrested the risk of torture or CIDTP or persecution by the Pakistani police is substantial (underlined by the adjudicator).  He described the applicant’s claim as a thesis of arrest followed by ill-treatment followed by conviction followed by sentence is speculation upon speculation upon speculation based on bare assertions from a claimant who is unreliable. Yet this was meant to be an assessment of the applicable grounds on the basis that the applicant was telling the truth.

18.The adjudicator then summarised the relevant Country of Origin (“COI”) information.  He referred to reports that showed State protection was reasonably available to victims of crime and that trials were fair so the applicant had nothing to fear.  He then said the duty lawyer cited  a number of reports but did not refer to them or cite them; he dismissed them as they did not advance the claim.  He then found that the torture risk claim failed even on the applicant’s own facts.

19.As far as the BOR 3 risk was concerned, he found the applicant had not suffered severe injury or serious harm which would place him within the criteria of CIDTP.  He then says for reasons stated he finds no substantial ground to believe he will face any future risk of serious harm.  It is unclear which reasons he is referring to.  He then found that the BOR 3 risk claim failed even on the applicant’s own facts.  The same reasoning applies for the BOR 2 risk claim.

20.He then considers the persecution risk and finds the applicant has not suffered severe injury or serious harm which would place him within the criteria of persecution.  However, this is wrong; an applicant does not have to have suffered severe injury or serious harm already or in the past in order to invoke protection under Article 33 of the Refugee Convention.

21.He goes on to find no evidence to show substantial ground to believe he faces any future risk of serious harm, he finds reasonable availability of State protection and any future risk of assault after arrest will not be under any Convention reason; therefore, the persecution risk failed even on the applicant’s own facts.

Leave to apply for judicial review

22.The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

23.The court plays a supervisory role and will consider several crucial issues:

a. were there any errors of law;

b. did the procedures adopted at the hearing of the petition/appeal satisfy the high standard of fairness required; and

c. did the substantive decision satisfy the enhanced Wednesbury test.

24.The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of fairness have been met.  I quote the then Chief Justice Li in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187;

“Standards of fairness

43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex parte Doody [1994] 1 AC 531 at 560 D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination.  The courts should not usurp that official’s responsibility.  But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met.  R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 at 531 E-G.  If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

25.The applicant has set out several grounds of review in his affirmation but not in a very organised or chronological manner and I have tried to decipher them as best I can;

1. error in law in failing to refer to adverse COI information;

2. procedural impropriety (all relating to COI and a failure to assess it properly);

3. error in law (failure to consider the concept of extended State acquiescence);

4. procedural impropriety (failure to apply the correct legal principles and/or direct himself in law correctly when rejecting the applicant’s credibility).

26.Grounds 1 and 2 are convoluted but all relate to how the adjudicator dealt with or did not deal with the COI material.  They can be considered together.  When he considers the COI material the adjudicator says he is assessing the applicant’s claim on the basis that he believes his story is true.  He has a duty to enquire into relevant country conditions.  If an applicant alleges police corruption is rife and gives specific examples such as faked encounter killings by the police, then the adjudicator must be seen to make enquiries into such allegations.

27.The applicant alleges the adjudicator cherry picked COI material.  He did not consider the application with the necessary high standard of fairness and that included failing to give adequate reasons for rejecting or not even considering information highly favourable to the applicant’s claim.  A reading of the COI information summary in the TCAB decision shows that the adjudicator has made no reference to any of his allegations, which does support the submission that there was no enquiry into it.  All COI information references are skewered to the adjudicator’s conclusion that State protection is available.  There is no objectivity.

28.I am also concerned with a reference by the adjudicator to a COI report on Pakistan published by the UK Home Office on 9 June 2016 and he quotes para 1.3.1 which says “in general, a person is likely to be able to access effective protection from the State.  A person may, nevertheless, be unable to receive effective protection by reason of his or her individual circumstances”, and he refers to paragraphs that speak of First Information Reports and the police.

29.However, it seems that particular COI report was last updated by the UK Home Office on 27 June 2017, before the date of this appeal hearing.  The adjudicator was referring to an out‑of‑date COI report. That may not be very significant if the updates are not material.  In this case, the adjudicator relies on a quote that protection is perceived to be available.  I quote from the updated report at para 2.2.1 under the Protection heading, “where the person’s fear is of persecution and/or serious harm at the hands of the state, they cannot avail themselves of the protection of the authorities. 2.2.2 where the person’s fear is of persecution and/or serious harm from non-state actors, decision-makers must assess whether the state can provide effective protection.” It would appear the updates are significant, in particular for this applicant who submits his fear is of serious harm at the hands of the police.

30.Under the section for police, clearly not much has changed; the Pakistani police force has been known for years for being poorly trained, badly paid and viewed with suspicion because of its poor human rights record.  Most police are regarded as corrupt, inefficient and unprofessional.  Human Rights Watch report extrajudicial killings by the police and those include faked encounter killings that police have admitted.

31.Under the section heading corruption in the report and under the subsection of police and judiciary at para 12.2.2 I quote “the Immigration and Refugee Board of Canada stated that “in a telephone interview with the Research Directorate (in December 2015) a professor with the Department of sociology and criminal justice at the State University of New York, stated that Punjab is the “worst” region for police corruption, especially “custodial killings,” which are incidents whereby individuals are killed in police custody, but the death is blamed on an outside “encounter” such as resisting arrest.”  This is precisely what the applicant says his SHO tried to bribe him to do and how he says Sheedi actually died.

32.The adjudicator should have based opinions on an up-to-date COI report but even then I am sure in that previous report the details relating to the police and the corruption have not changed and should have been referred to objectively.  The adjudicator should have then given reasons for coming to the conclusion that despite information that supported the applicant’s allegations he was still of the view there was State protection if that was his conclusion.  I find ground 1 and ground 2 reasonably arguable.

33.Just in that report I have quoted from there were sections referring to arrest and detention and torture and ill-treatment as well as human rights abuses.  I am sure in other COI reports from the US Department of State and Human Rights Watch as well as Amnesty International there are similar sections.  The applicant’s duty lawyer wrote in submissions that if the applicant were to return to Pakistan he would very likely be tried for murder given the high level of corruption.  He would likely be found guilty and there would be a high risk of a death penalty.  In paras 3.3 and 3.4 of the adjudicator’s decision his submissions were dismissed for being layered assumptions.  Perhaps that dismissal was premature so early on in the decision when those submissions seem to have been based on information from COI reports.

34.Ground 4 refers to how the adjudicator deals with the applicant’s evidence and finds him not credible.  Firstly, the adjudicator is under duty to make a fresh and independent enquiry/decision.  It is a de novo hearing.  In assessing his credibility, the adjudicator relies heavily on what he was asked by the Immigration officer in his screening interview to discredit him, for example his knowledge of police badges, police stations and the like.  Much of it is repeated in his decision in para 5 as his reasons for not believing him.  If the adjudicator had doubts the applicant was a genuine police officer the proper approach should have been to start the enquiry or questions in a different way or afresh. He should consider those answers first and then if he thought necessary, also take into account previous answers given to Immigration officers.

35.The applicant submitted during his leave application that in Pakistan one does not have to be educated to be a police officer and the police training is poor and basic.  He was a farmer before he was a police officer.  The COI material does state the police are poorly trained.  I suspect his inability to identify many high-ranking officer’s insignia badges and name the year the criminal code was adopted does not necessarily prove he was not a police officer.  In any event, the adjudicator does not specify he does not believe he was a police officer.

36.It is unclear what he actually does not believe. It is unclear if he believes he is a police officer but does not believe his story of a frame up for murder.  If he does believe he is a police officer, then some of the inconsistencies he highlights may not be so material.  If inconsistencies are not so material and credibility is nonetheless undermined, then there maybe procedural impropriety and irrationality, see Beyond Proof: Credibility Assessment in EU Asylum Systems, UNHCR May 2013 at page 31.

37.Paragraph 5 of the decision lists the reasons the adjudicator finds the applicant unreliable but para 5.11 suggests he is unreliable because he did not report his senior to a higher official or the ombudsman.  He says the COI shows a fair justice system which strengthens the finding he is unreliable.  I am not sure I understand that reasoning nor agree that makes him unbelievable.  The same applies to para 5.10, I do not understand the reasoning behind what the inconsistency is or the difference between his SHO should know and “I don’t know if he knew”.  My point being, when one reads para 5 overall and the list of reasons why the applicant is unbelievable, I do not find that there has been a high standard of fairness in the approach followed when assessing his credibility.  Ground 4 is reasonably arguable.

38.As for ground 3, the applicant has fled in fear of State actors, the police.  This is not a claim where the concept of extended State acquiescence or passive State acquiescence comes into play.

Conclusion

39.Therefore, having heard this ex parte summons and the applicant in person, I find there are merits in the grounds above and I give leave to the applicant to judicial review the decision of the Torture Claims Appeal Board dated 3 August 2017.

Dated 8^th day of February 2018.

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