Shah Muhammad Yaqoob v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 676/2018

[2019] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 676 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave be granted to the Applicant to judicially review the Torture Claims Appeal Board (“the Board”)’s decision dated 15 February 2018 on the following two grounds:

i.  the Board’s decision in dismissing the applicant’s appeal on the basis that it was unable to make finding due to absence of his oral testimony was Wednesbury unreasonable or irrational; and

ii.  the Board had failed to give any or had given insufficient reason for dismissing the appeal;

2.  The applicant to file an originating summons within 14 days from the date of his receipt of the decision hereof on these grounds; and

3.  The applicant to serve all relevant documents on the Board as the respondent and the Director of Immigration as the Interested Party.

Observations for the Applicant:

1.The applicant is a 45-year-old national of Pakistan who entered Hong Kong illegally on 25 December 2013 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his uncle and sons over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Gorsian, Tehsil Bhimber, Pakistan.  After leaving school he first worked as a construction worker, got married and formed a family with three children, and in 2008 started farming on the farmland in his home village inherited from his father.

3.However, the farmland was coveted by his paternal uncle who lived in the same village with political connections with then ruling party Pakistan Peoples Party (“PPP”), and had raised issues with the applicant’s ownership in the land which had led to constant conflicts between the two families.

4.One day in October 2013 when he found his uncle and son with a tractor digging on his farmland, the applicant demanded that they left his land which led to a fight between him and his uncle’s son until they were intervened by the neighbours.  Before they left his uncle and son threatened to take revenge against the applicant for getting into the fight with them.

5.Several days later when the applicant heard that his uncle and son intended to come looking for him armed with guns, he became fearful for his life and therefore fled with his family to neighbouring Village Behari, but as he was still fearful that his uncle would be able to find him there, he decided to leave Pakistan and so he departed on 16 December 2013 for China, and from there he sneaked into Hong Kong and subsequently raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 26 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 4 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial ground for believing that he would be at risk of being harmed or killed by his uncle and/or his son upon his return to Pakistan due to the low intensity and frequency of past ill-treatment from them, that he having deserted his farmland when he left his home village in 2013 that his uncle would no longer have any interest in him after all these years, that it was a private family dispute without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for his uncle or son to locate him.

8.By a Notice of Further Decision dated 10 October 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 18 August 2016, but when he failed to attend the oral hearing scheduled for 1 February 2018 before the Board, and when his subsequent explanation that he did not receive the notice of the hearing as his letterbox was damaged was not accepted, the Board proceeded to deal with his appeal in his absence and on paper.  On 15 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.On 19 April 2018 the applicant filed his Form 86 for leave to apply for judicial review presumably of the Board’s decision as he did not state so in his Form, nor did he give any ground for seeking relief, and in his supporting affirmation he merely exhibited copies of the decisions of the Director and the Board as well as other relevant documents from the hearing bundle for his appeal before the Board.

11.Notwithstanding the absence of any proposed grounds from the applicant for his intended application, as he is no longer legally unrepresented, and given the nature of his claim that “life and limb” are in jeopardy and his fundamental human right not to be subjected to torture or persecution is involved, high standards of fairness must be observed by the Board when making its administrative decision regarding the applicant’s appeal: see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, and it is with rigorous examination and anxious scrutiny that I proceeded to consider the reasons given by the Board in dismissing the applicant’s appeal encapsulated in its decision, starting first with those for its decision to determine his appeal in his absence after his failure to attend the originally scheduled hearing:

“ 17. Having read the papers in this case, the Board determined that an oral [hearing] was required. Notice of the hearing was served on the Appellant by post at his last known address on 3 January 2018 in accordance with the requirements of section 13 of Schedule 1A to the ordinance (‘Schedule 1A’) and paragraph 11.7 of the Practice and Procedural Guide of the Non-refoulement Claims Petition Scheme (“The Petition Guide”).

18.  On 1 February 2018, the Appellant failed to attend the hearing.  The Board was satisfied under sub-clause 15(1) of Schedule 1A and paragraph 11.12 of the petition Guide that notice had been duly served on the Appellant, and accordingly decided, subject to sub-clauses 15(1) and 15(2) of Schedule 1A and paragraph 11.14 and 11.15 of the Petition Guide, to hear and determine the Appeal in his absence.

19.  On 1 February 2018 the Appellant was given written notice of the Board’s intention to determine the appeal in his absence and informed that he might submit to the Board, within 7 days, a written explanation for his failure to attend the hearing together with any documentary evidence supporting the explanation.  Again, this was sent by post to his last known address.  No response was received from the Appellant within the specified time limit.

20.  On 14 February 2018 the Board received a fax from the Appellant in which he stated that he had received the latter about his failure to attend the hearing, but had not received notice of the hearing itself.  He said his letterbox is damaged and that someone had passed him the letter about his failure to attend.  He does not state when he received the letter of 1 February 2018, how long his letterbox has been damaged or what is the nature of the damage which means he cannot receive mail.  The address he provided in his letter of 14 February 2018 is the address to which all the previous correspondence, including the notice of the hearing, was sent.

21.  After due consideration, I am not satisfied that the Appellant has provided a satisfactory explanation for his failure to attend the hearing and I will determine the matter in his absence.”  

12.I note that the applicant’s reported address was stated at Roof Top 9 of Wan Hing Street somewhere in Hung Hom, Kowloon, possibly one of those poorly partitioned rented cubicles in some old or dilapidated building that he could afford, and hence it would not be difficult to imagine or expect the kind of problems that he claimed to have with receiving his mails under the circumstances, and whilst the adjudicator may be entitled not to accept his explanation for lack of sufficient details or information and refused to schedule another hearing for his oral testimony, it may be arguable that it was not Wednesbury reasonable for the adjudicator then to dismiss his appeal solely on the basis that the Board was unable to make findings as to his claim because there was no oral testimony from him to substantiate the same or to answer questions from the Board, as it so stated in its decision:

“ 22.  The Board had concerns about the aspect of the Appellant’s claims and, therefore, decided to hold an oral hearing to discuss with the Appellant issues, for example, such as:

(a)  while acknowledging that land disputes are common in Pakistan, the general credibility of the Appellant’s claims;

(b)  the lack of any past harm of a serious nature suffered by the Appellant and, in those circumstances why he believes he would be harmed should he return to Pakistan;

(c)  why the Appellant did not pursue any legal remedy concerning ownership of the land;

(d)  why he could not seek the assistance of the police or other authorities in a dispute with his uncle;

(e)  why the Appellant could not safely relocate elsewhere in Pakistan where he could avoid his uncle and where, given his level of education and previous work history, he would be able to find work and accommodation; and

(f)  why the Appellant believes that his uncle’s association with the PPP means he would be able to be located wherever he went in circumstances where the PPP does not hold power nationally or in AJK.

23.  While noting the difficulties claimants in this area can have in obtaining corroborating evidence and that the exercise of determining whether a claim is valid is one of joint endeavor, the onus is nevertheless on the Appellant to make out his case. His failure to appear at the hearing and provide oral testimony to the Board means that the Board has been denied the opportunity to question the Appellant about his claims or to test their veracity at a hearing. The Board, therefore, cannot be satisfied why he left Pakistan and whether he cannot return for the reasons claimed.

24.  Without further evidence from the Appellant, the Board is therefore unable to make a finding that the Appellant was threatened or harmed because of a land dispute with his uncle. Similarly, the Board is unable to make a finding that he would be at risk of harm for that reason were he to return to Pakistan.

25.  For these reasons, the Board is not satisfied that the Appellant will be harmed by his uncle if he returns to Pakistan.  He has not claimed to fear for any other reason.”

13.Clearly the Board having read the papers of the applicant’s case as noted above, and notwithstanding the absence of any oral evidence from the applicant whether of his own choosing not to attend the hearing or otherwise, in my view it could and should have proceeded to analyze and assess his claim as to whether his alleged fear of harm was well-founded based on all other materials available before the Board, and on all the applicable grounds on the basis that his claim was plausible in view of the fact that it did not made any adverse finding of credibility on his case, and also to assess whether the options of state protection and/or internal relocation were available to the applicant based on the available COI, and if so whether it would not be unreasonable for him to avail himself to those options notwithstanding the absence of his oral testimony.

14.In Re Hidayah [2018] HKCA 595 (CACV 160/2018), where the applicant appealed against the Board’s dismissal of her non-refoulement claim for similar reasons, in allowing the appeal and granting her leave for judicial review of the Board’s decision on the ground that it had failed to give or had given insufficient reasons for its decision, Chu JA in her judgment for the Court of Appeal held as follows:

“ 15.  The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case was plausible.

16.  We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

15.For the reasons given, I am of the view that it is reasonably arguable that (1) the Board’s decision in dismissing the applicant’s appeal on the basis that it was unable to make finding due to absence of his oral testimony was Wednesbury unreasonable or irrational, and (2) that the Board had failed to give any or had given insufficient reason for dismissing the appeal.

16.In the premises I grant leave to the applicant to judicially review the Board’s decision on these two grounds, and in accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A, the applicant shall file an originating summons within 14 days from the date of his receipt of this decision on these grounds, and serve all relevant documents on the Board as the respondent and the Director as the interested party.

Dated the 28^th day of June 2019.

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