Ahmed Sajjad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 137/2018

[2019] HKCFI 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 137 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.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 May 2014 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.The applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 21 October 2007 and was arrested by police on 22 October 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be subjected to risk of torture and killed by the family of the person whom he was suspected to have been involved in his murder and/or by the police for such involvement. 

2.The applicant was born and raised in Village Dhoda Sharif, Tehsil, Gujrat, Punjab, Pakistan where his widowed mother and siblings still live.

3.One day in 2003 while he was playing in a cricket match in the village, one of his teammates Basharat had a quarrel with the player of the opposite team Shahid that caused Basharat to be sent off by the referee.  Later Basharat returned to the field to resume his quarrel with Shahid, and when Basharat pulled out a gun, the applicant tried to intervene but was unable to prevent Basharat from shooting dead Shahid, and when Shahid’s teammates started yelling that Basharat and the applicant had killed Shahid, the applicant panicked and ran from the scene to hide in his cousin’s place in Ranja Jamaat for several days, and then to Lahore to stay with his friend for two weeks before returning home when he was subsequently arrested by the police for the investigation of the murder.

4.The applicant was detained by the police for several weeks during which he was beaten during interrogation but was eventually released on bail after he had insisted to be innocent of the shooting.  However, when he heard that Shahid’s family was looking for him for revenge, he took shelter at his aunt’s home in Lahore until 2004 when he went to Saudi Arabia where he worked for two years as a barber until 2006 when he returned to Pakistan.

5.However, he was arrested by the police again in early 2007 in their on-going investigation of the murder of Shahid and was questioned for the whereabouts of Basharat, during which he was detained for two weeks and was again beaten by the police. Eventually he was released on bail without charge, but when he heard that Shahid’s family was still looking for him for revenge, he again departed Pakistan in October 2007 for China, and from there he later sneaked into Hong Kong and raised his torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), for which he completed a Torture Claim Form (“TCF”) on 26 September 2013 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.By a Notice of Decision dated 9 December 2013 the Director of Immigration (“the Director”) rejected the applicant’s torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) when he found that leaving aside the issue of credibility and taking his case at the highest that his alleged threats from Shahid’s family did not amount to “torture” as defined in section 37U(1) of the Ordinance, and that he was not pursued by the police given that he was able to leave Pakistan twice without difficulty and that the police merely wanted information as to the whereabouts of Basharat that state or police protection would be available to him.  

7.On 20 December 2013 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not hold any oral hearing and on 21 May 2014 dismissed his appeal and confirmed the decision of the Director.

8.In its decision the Board similarly did not take any issue as to the applicant’s credibility and accepted his account of the claim, but found that neither the alleged ill-treatments from the police or from Shahid’s family amounted to severe pain or suffering within the definition of section 37U of the Ordinance, nor any threats from Shahid’s family had any official involvement as defined under that section, and that after all these years there was no evidence that the police or Shahid’s family still had any adverse interest in the applicant that it concluded no substantial grounds for believing that he would be subject to torture if refouled to Pakistan.

9.By then the applicant had already made a non-refoulement claim for protection from 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”), which he filed on 23 December 2013 under the Unified Screening Mechanism (“USM”), but which he later by a letter dated 3 August 2015 requested to withdraw as it was safe for him to go home, which was accepted by the Director on 6 August 2015 as formally withdrawn, and so on 10 September 2015 he was repatriated to Pakistan.

10.However, on 20 May 2017 the applicant again entered Hong Kong illegally, and two days later on 22 May 2017 he surrendered to the Immigration Department and raised another non-refoulement claim on the basis as before of risk of being harmed or killed by Shahid’s family, but when he failed to provide any further details and particulars of his claim as required by a letter dated 15 June 2017 from the Director, his request to make a subsequent claim was refused on 6 July 2017 by the Director.

11.In this decision the Director found that the applicant had failed to show that there had been any significant change of circumstances regarding threats from Shahid’s family since the withdrawn of his previous claim to justify a subsequent claim, as it was explained in the decision:

“ 9.  In your written representation of 24 May 2017, you mentioned that you wanted to stay in Hong Kong and apply for non-refoulement claim for the reason that you will be killed by Shahid’s family because you were present in the fight between your friend and Shahid. Our letter dated 15 June 2017 was sent to you and you were requested to provide further information on the details about your fears and the incidents happened on you, if any, on or before 29 June 2017. As at today, we have not received any reply from you and therefore your subsequent claim will be considered in accordance with all the information available to us.

10.  Your present request has been considered under section 37ZO(2) of the Ordinance and under the USM which set out the requirements for making a subsequent claim in that a person who has previously made a non-refoulement claim must not subsequently make another non-refoulement claim (that is, a subsequent claim) unless he can provide sufficient evidence in writing to satisfy an immigration officer that:

(a)  there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)  the change, when taken with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

…

12.  Having carefully considered the material previously submitted in support of your Previous Claim, your current written representations and all the circumstances of the case, it is considered that you failed to provide sufficient evidence to show that there has been a significant change of circumstances since your previous Claim had been withdrawn and your alleged change of circumstances as raised in your written representations, when taken together with the material previously submitted in support of your Previous Claim, would not give your subsequent claim a realistic prospect of success. Therefore, it is decided that you may not make a subsequent claim. The reasons of the decision are set out in the ensuing paragraphs.

13.  First, there has been no significant change of circumstances on the alleged risks of harm since the Previous Claim had been withdrawn.  The alleged risks of harm you claimed to face upon your return to Pakistan were from Shahid’s family as you were present in the fight between your friend and Shahid.  Your allegations of the threats and harm from Shahid’s family mentioned in your Previous Claim had been considered.  There appears no significant change of circumstance since your Previous Claim had been withdrawn …”

12.The applicant did not appeal to the Board against that decision, and instead on 29 January 2018 he filed a Form 86 for leave to apply for judicial review of the earlier Board’s decision made more than three years ago on 21 May 2014 regarding his torture claim, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety for insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failure to investigate into the COI of Pakistan;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human right violation or to consider if state protection exists in Pakistan;

(7)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(8)  procedural impropriety in failure to call for psychological and/or psychiatric reports and/or evaluation;

(9)  procedural impropriety in applying the incorrect standard of proof when there was no reasonable basis for rejecting his credibility, failure to consider the extended form of state acquiescence, failure to fully consider the COI reports in assessing risk to the applicant;

(10)  irregularity of the decision maker being a different person than the interviewing officer; and

(11)  no proper basis for consideration of internal relocation.

13.The applicant was of course by then seriously out of time with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

14.In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 21 August 2014, and hence he was late by almost 3 ½ years with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.A delay of 3 ½ years must be considered as very substantial, for which he did not provide any explanation in his affirmation for such serious delay, but in a letter dated 8 January 2018 to the Immigration Department exhibited to his affirmation, he claimed that he returned to Pakistan voluntarily in 2015 after the matter was resolved through a mediator who however passed away a year later, and Shahid’s family had started to threaten him again, and so he came back to Hong Kong to re-open his claim and/or to make a fresh application, of which cannot be in my judgment be accepted as a valid reason for his delay which was already seriously excessive even before his departure in September 2015.

16.As for the merits of the intended application, his proposed grounds are mostly just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or why was the standard of proof relevant when there was no issue as to the credibility of his claim.

17.However, the question must be asked is this: Was the Board correct to find that the applicant’s treatment by the police on those two occasions of being detained did not amount to torture?

18.As noted by the Board, a person who claims non-refoulement protection in Hong Kong on the ground of a torture risk can make a torture claim under section 37X of the Ordinance, and torture is defined in section 37U(1) as follows:

“ torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) for such purpose as—

(i) obtaining from that person or a third person information or a confession;

(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or

(iii) intimidating or coercing that person or a third person; or

(b) for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions;”

19.As also noted, the Board did not conduct any oral hearing for the applicant’s appeal because it did not take any issue concerning his credibility and accepted that he had given a truthful account of his claim of ill-treatment received from the police and Shahid’s family, and while there was no indication or suggestion of any official involvement in the threats from Shahid’s family against the applicant, the same cannot be said about the applicant being detained and suffered ill-treatment during his two arrests by the police, of which the Board found not to amount to torture, as it explained in its decision:

“ 23.  The Appellant’s fear arises from the fact that he was, on 2 occasions in the past, arrested in connection with the false allegation that he was involved in the murder of Shahid. He says that, while he was detained on those 2 occasions, he suffered ill-treatment at the hands of police officers.

24.  Even assuming that the Appellant was beaten with a chitter by police while he was detained, there is no evidence to suggest that the injuries he sustained as a result of those beatings constituted severe pain or suffering, whether physical or mental, as contemplated by Section 37U of the Ordinance.  On that basis, the Appellant’s treatment on those 2 previous occasions did not amount to torture.”

20.Since the Board did not find it necessary to receive any oral testimony from the applicant, as it had accepted the applicant’s account of his ill-treatments by the police based on the materials supplied in the hearing bundle for the appeal, of which it recorded in its decision as follows:

“ 12. … The Appellant was arrested and taken to Karian Wala Police Station, where he was put in a ‘special room’ in which he was beaten several times by police officers with a leather ‘chitter’ until he fell unconscious.

13.  The Appellant says that, while he was detained at the police station, the police officers asked him the whereabouts of Basharat. He was detained for 15 days, during which time he was visited by his family. After 15 days, the appellant was sent to the Remand Centre in Gujrat where his family members were permitted to provide him with food and water.

14.  During his time at the Police Station and at the Remand Centre, the Appellant was beaten at least once a day by officers who kept asking him the whereabouts of Basharat.  The Appellant sustained ‘many bruises and redness all over my body’ as a result of the beatings.  [TCF, Answer 33, paragraph 19].”

21.The same ill-treatment occurred daily during the applicant’s second arrest by the police when he was again detained for 2 – 3 weeks and interrogated for Basharat’s whereabouts, which was again accepted by the Board without any issue over the credibility of such account.

22.It seems therefore to me that there was sufficient basis for the Board to make factual findings of torture with official involvement within section 37U of the Ordinance, whilst its question about there being no evidence to suggest that the injuries sustained by the applicant as a result of those beatings constituted severe pain or suffering also seems to me contradictory to its earlier stated acceptance that the applicant had given a truthful account of the matters within his own knowledge without any necessity to hold any oral hearing.  As such I cannot say that the applicant has not passed the threshold of the arguability test for his intended challenge.

23.However, it also seems clear to me that events transpired since the applicant’s repatriation to Pakistan in 2015 have negated such arguable ground and rendered his intended application entirely academic, as evidenced by the fact that in his subsequent second non-refoulement claim he no longer raised any fear of risk of harm or torture or persecution by the Pakistani police as a basis for his claim.

24.There is no question that requirement for leave to apply for judicial review is an important filter introduced by statute for the purpose to prevent public authorities from being unduly vexed with unarguable challenges, and the granting of leave is a matter for the Court’s discretion to be exercised judicially.  Under the arguability test, a claim for relief which is not reasonably arguable could not be regarded as arguable, and it is not in the public interest that challenges which are not reasonably arguable should be given leave to proceed: see Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676 (FACV 10/2007, 30 November 2007).

25.In the present case, the applicant did not seek leave to apply for judicial review of the Board’s decision before he withdrew his non-refoulement claim and returned to Pakistan in 2015.  More than three years later he no longer claims of any fear of harm from the police over the killing of Shahid in his second non-refoulement claim, the relief sought in his application now before me regarding his torture claim would in my judgment lead to no practical benefit, nor would it be costs proportionate, and for which reasons the Court is entitled to refuse leave, however strong the complaint might otherwise be.

26.In the premises and for these reasons I am not satisfied that there is any prospect of success or any practical justice in the applicant’s intended application for judicial review, and in the absence of any good reason for his very substantial delay, I refuse to extend time and accordingly dismiss his application.

Dated the 26^th day of July 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