Muhabat Majid Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 95/2018

[2019] HKCFI 2574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 95 of 2018

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 Bruno Chan:

1.   time be extended for the Applicant’s late application; and

2. leave be granted to the Applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 29 March 2017 on the grounds as stated in the Form Call-1.

It is further directed that:

3. the Applicant shall within 14 days of the order herein file and issue the originating summons, and to serve a copy together with all the relevant documents on the Board as the first respondent and the Director of Immigration as the second respondent. 

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Pakistan who entered Hong Kong illegally in August 2006 and was arrested by police on 28 November 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 harmed or killed by certain supporters of rival political party Pakistan Muslim League (N) (“PML(N)”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lahore, Punjab, Pakistan.  After leaving school he worked as a salesman and joined the political party Pakistan Tehreek-e-Insaf (“PTI”) as an ordinary member.

3.In 2004 he was assigned to work at the PTI office in Lahore, Punjab where he and his fellow PTI members were threatened by a local PML(N) leader Tariq with his gunmen to close down their office and to leave the place or else risk being killed.

4.The Applicant reported the threats to the police, but no action appeared to have been taken by them against Tariq or his men, and instead in 2005 the Applicant was arrested by the criminal investigation agency of the Punjab police over some false charges of involvement in terrorism and possession of weapons, for which he was repeatedly tortured with police batons and electrical shocks that he fainted and lost consciousness, and was only released after the court had found that those charges made against him were false and acquitted him.

5.However, the threats from Tariq soon resumed when his men on two occasions in 2005 fired shots at the Applicant’s house, and after the police again failed to take any action against him despite the Applicant’s complaints, Tariq with his men on 17 August 2005 came to the PTI office and shot and injured both the Applicant and a fellow PTI member that they were taken to the hospital for treatments.

6.Upon his discharge from the hospital the Applicant again made a report to the police, and again when the police failed to take any action, he decided to leave for Sialkot to take refuge at various place for one month before eventually returning to his home in Lahore.  

7.One day in late 2005 Tariq’s armed men again came and shot at the Applicant’s house and shouted death threats against him, and when the police again failed to take any action, the Applicant felt it was no longer safe to remain in Pakistan, and therefore with the assistance of an agent he departed on 14 May 2006 from China, and from there he later sneaked into Hong Kong in August 2006.

8.Whilst in Hong Kong he received a call from Tariq warning him that his men would still be able to find him despite his escape from Pakistan, and on 26 November 2007 two Pakistani men came to the Applicant’s home and attacked him with a chopper that the Applicant was subsequently taken to the hospital for treatment of his injuries.

9.Upon his discharge from the hospital, the Applicant was arrested by the police on 28 November 2007 for overstaying in Hong Kong when he then raised his torture claim,which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he competed a Non-refoulement Claim Form (“NCF”) on 21 May 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.However, before the determination of his claim was finalized, the Applicant on 24 November 2015 approached the Immigration Department seeking to withdraw his claim because his father back home in Pakistan had suffered a heart attack and was in intensive care in the hospital and hence he wished to withdraw his claim so that he could return to Pakistan on emergency basis.

11.On 26 November 2015 DLS informed the Immigration Department of the Applicant’s request and enclosed a letter from his counsel dated 25 November 2015 confirming his wish to withdraw his claim so that he could be sent back home on urgent basis due to his father’s heart attack.

12.At the request of his immigration officer, the Applicant on 27 November 2015 attended at the Immigration Department and wrote a statement that he wanted to withdraw his claim and to go home because his problem had been solved and his life would be safe there.

13.On the same day of 27 November 2015 the Director of Immigration wrote to DLS to confirm that pursuant to the Applicant’s request, there would be no further action taken on his case.

14.Three days later on 30 November 2015 counsel for the Applicant wrote to the Immigration Department that as the condition of his father had since stabilized, the Applicant no longer wanted to be sent back to Pakistan and requested that his claim be re-opened.

15.By a letter dated 4 December 2015 the Director replied to DLS to acknowledge the Applicant’s request to re-open his claim, and required the Applicant to provide information and evidence on or before 18 December 2015 to show that there had been a change of circumstances that could not reasonably be foreseen by him when he made his request to withdraw his claim and any special circumstances that it would be unjust not to re-open his claim.  To his letter the Director also attached a copy of the Applicant’s request to withdraw his claim made on 27 November 2015 for their reference.

16.On 17 December 2015 counsel for the Applicant wrote to the immigration officer to provide addition information of the change of the condition of the Applicant’s father, that on 27 November 2015 the Applicant was asked by an immigration officer to copy and adopt from a sample letter for his request to withdraw his claim, and asked for time to produce the medical proof of his father’s condition if so required to support his request to re-open his claim.

17.I pause here to refer to section 37ZE of Part VIIC of the Immigration Ordinance,Cap 115 which allows a torture claim to be withdrawn and then re-opened under certain conditions as follows:

“ (1) A claimant may, before a torture claim is decided under section 37ZI,withdraw the claim by notifying an immigration officer in writing.

(2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that—

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b)   by reason of special circumstances, it would be unjust not to re‑open the claim.”

18.By a Notice of Decision dated 30 December 2015 the Director refused to re-open the Applicant’s non-refoulement claim upon finding that he had not demonstrated any change of circumstances in connection with the risk of harm which he would face upon his return to Pakistan, that the change of circumstances regarding his father’s health condition could not increase the prospect of success of his claim when taken together with the material previously submitted for the claim after having assessed that his non-refoulement claim had not been substantiated with the availability of state protection and reasonable internal relocation options to him, and that there was no evidence indicating that it would be unjust not to re-open his claim.

19.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 20 December 2016 before the Board with his legal representation from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made by his lawyer on his behalf.  On 29 March 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

20.In its decision the Board agreed with the Director’s decision not to re-open the Applicant’s claim upon making adverse finding on the credibility of his request that he did not give the reason of his father’s heath condition for withdrawing his claim, that he in fact stated that his problem had been solved and that it was safe for him to return to Pakistan that there was no unforeseen circumstances which justify re-opening his claim, nor any special circumstances which would make it unjust not to re-open the claim.

21.On 18 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with their decisions and repeated his claim that he has a life threat in Pakistan from his powerful enemies.  

22.He was by then also way out of time with his Form 86, 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.

23.As the last day of the three-month period for the Applicant to file his Form 86 fell on 29 June 2017, he was therefore more than six months late 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.

24.In the Applicant’s case, a delay of more than six months must be considered as substantial, for which he did not give any explanation in his affirmation, and as such I do not find that he has provided any good reason for his delay.

25.As for the merit of his intended application, which is a crucial factor in the exercise of the discretion whether to extend time, as noted above the Applicant did not put forward any ground for his intended challenge, but given the nature of his claim that “life and limb”are at stake, high standards of fairness require that I should nevertheless proceed to consider the Board’s decision with rigorous examination and anxious scrutiny to see whether there is any error of law or procedural unfairness or failure to apply high standards of fairness by the Board in refusing to allow him to re-open his claim and in dismissing his appeal.

26.However, it is relevant to first go back to the Director’s Decision in refusing to re‑open the Applicant’s claim, and to ask this question: Did the Director in that decision just deal with the Applicant’s request to re-open his claim, or did he actually proceed to assess his non-refoulement claim? 

27.An examination of the decision suggests that it is the latter, as while the Director started off in paragraph 2 to deal with the Applicant’s request to re-open his claim, and in paragraph 3 he concluded not to do so, but for the rest of his 27-page decision, he went on to actually assess the Applicant’s non-refoulement claim when he first set out the basis of his claim starting from paragraph 8 including his background and the chronology of his claimed threats and assaults from members and supporters of rival political party up to his departure from Pakistan in details.

28.The Director also referred to all those documents provided by the Applicant in support of his claim including forensic medical evidence of his injuries allegedly inflicted by Tariq’s men ([10] – [13]).

29.More significantly, the Director proceeded to actually consider the Applicant’s claim, or so he stated in his decision as follows:

“ 16. As mentioned above, your non-refoulement claim is assessed on all applicable grounds, including torture risk, BOR 3 risk and persecution risk.

…

18. The assessment of your claim will take the following structure:

(A) How likely it is that your feared treatment would materialize;

(B) Consideration of the claimed BOR 3 risk;

(C) Consideration of whether the claim calls for persecution non-refoulement, and

(D)  Consideration of the claimed torture risk under Part VIIC of the Immigration Ordinance.”  

30.Accordingly, the Director went on to assess the Applicant’s claim under those risks,as well as making reference to relevant Country of Origin Information (“COI”) in assessing the availability of state protection and internal relocation options in Pakistan, and determined that his non-refoulement claim for protection failed on all the applicable grounds (see [26] – [35] of his decision).

31.In his concluding paragraphs at the end of his decision, the Director returned to his consideration of the Applicant’s request to re-open his non-refoulement claim, and repeated his decision not to accede to that request ([36] – [37]).

32.It seems to me that the Director took the view that since section 37ZE(2) requires that an immigration officer be satisfied that there were sufficient evidence that “since the withdrawal there had been change of circumstances not only foreseen by the Applicant but that when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim”, it was therefore necessary to assess those material already submitted by the Applicant for his claim as set out in paragraph 9 of the decision,namely his NCF, the supplementary information submitted through DLS, his written statement and records of his screening interviews, before he could determine whether the requirement under the subsection had been met in his consideration of the Applicant’s request to re‑open his claim.

33.This thus explain why the Director stated as he did in his conclusion as to the Applicant’s request:

“ (VII) Consideration of Request for Re-opening Your Non-refoulement Claim

36. In your request for re-opening your non-refoulement claim, you have not demonstrated that there is any change of circumstances in connection with the risk of harm which you would face upon your return to Pakistan. You request to re-open your non-refoulement claim simply because your father’s health condition has been getting stable.  It is accepted that the change of circumstances in respect of your father’s health condition could not reasonably have been foreseen by you when you gave the withdrawal notification.  However, it is considered that the change of circumstances with regard to your father’s health condition could not increase the prospect of success of your claim when taken together with the material previously submitted for the claim.  Indeed, your non-refoulement claim is assessed as not substantiated.  Further, there is no evidence indicating that it would be unjust not to re-open the claim.”

34.It is against this that I now turn to consider the Board’s decision to see if there was any error of law or procedural unfairness or failure to apply high standards of fairness in dealing with the Applicant’s appeal.

35.To do so, it would be useful to first remind myself of what is the role of the adjudicator in determining an appeal or petition brought before the Board, as illuminated by McWalters J (as he then was) in AM v Director of Immigration & anor HCAL 102/2012 as follows:

“ 27. … what is the role of the Adjudicator in determining the petition. It would not appear to be an appellate role as his duty is not sourced from a statutorily created appellant procedure. His duty is sourced from a duty imposed by the Basic Law on the Chief Executive and delegated by him to the Adjudicators. …

28. All of these matters suggest to me that, in legal terms, a determination of a petition under Article 48(13) involves a rehearing of the matter determined by the Assessor and not an appeal from the Assessor’s decision.

29. On this issue I derive support from the Court of Appeal’s decision in Kaur v Director of Immigration [2001] 1 HKC 666 where the Court of Appeal characterized the petition process under Article 48(13) as involving considering afresh the original decision.

30. A rehearing can take different forms.  It can take place just on the papers or it can involve the calling of witnesses.  Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence.  But, this will not always be the case.  The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it.  The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called.  If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on papers he nevertheless requires an oral hearing to determine the claim.  This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.” 

36.In the present case, the adjudicator arrived at the same decision as the Director not to re-open the Applicant’s claim, as stated in the concluding paragraph of his decision:

“ 9. After listening to the Appellant I find him dishonest and unreliable. I find no evidence to suggest his thesis about his father’s condition. The only credible evidence, indeed the only visible evidence, is that the Appellant had on more than one occasion stated that he was safe to return to Pakistan which was the reason for his withdrawal of his non-refoulement claim. There is no unforeseen circumstances which justifies a re-opening of his claim. Nor is there any special circumstance which would make it unjust not to re‑open.”

37.As a rehearing of the Applicant’s case, the adjudicator was of course entitled to make a different finding on the Applicant’s credibility as to his claim of his father’s health condition as the reason for withdrawing his claim, but was there any proper evidence basis for him to do so?

38.The adjudicator’s reasons for finding the Applicant being dishonest and unreliable are given in paragraphs 4 – 7 of the Board’s decision, and can be summarized as follows:

(1) that there was no medical report or documents to support his claim of his father’s health condition;

(2) that he did not give the reason of his father’s health condition in his written request to withdraw his claim;

(3) that he lied about being asked by an immigration officer to copy his request from a template provided by the officer;

(4) that he did not raise his claim upon arrival in Hong Kong until some 2 years and 10 months later thereby undermining his claim; and

(5) that he denied any knowledge of his boat trip into Hong Kong was illegal. 

39.As the last two points were merely secondary evidence mainly to shift the weight in the adjudicator’s disbelief of the Applicant’s claim as to his father’s health condition,I shall for the present purpose just focus on the first three main points.

40.There is no dispute that the Applicant did not produce any documentary evidence of his father’s heath condition, but it is clearly wrong to say that he did not give that as the reason for withdrawing his claim, which he clearly did in the letter dated 25 November 2015 from DLS to the Immigration Department as noted above, and which I cite here in full as follows:

“ Having confirmed with Claimant, Mr. Muhabat Majid Ali, the Claimant wishes to return to Pakistan on an urgent basis as his father has suffered from recent heart attack and is presently in hospital in the Intensive Care Unit in Lahore, Pakistan. Given the above, the Claimant withdraws his present non-refoulement claim and asks to be returned to Pakistan as soon as possible and on an emergency basis. Please extend all help to the Claimant regarding his return to Pakistan.”

41.As for the issue over the Applicant’s claim that he was asked by an immigration officer to copy his request from a template to explain why he did not mention his father’s health condition and instead stated that his problem was solved and his life was safe, the adjudicator found that a comparison between the wordings in the Applicant’s letter and the template reveals that “they are vastly different” and  “that it was unthinkable that copying from the template could possibly have resulted in the words appearing in the letter of 27 November 2015”: [4.6].

42.However, a comparison of the Applicant’s letter dated 27 November 2015 with the template shows that the wordings are exactly identical that I fail to see how the adjudicator could come to his conclusion that they are “vastly different” if we were indeed looking at the same documents which were attached to the Applicant’s Notice of Appeal and as provided by the Director.

43.For these reasons it seems to me reasonably arguable that there was no evidential basis for the adjudicator to find that the Applicant had lied about his reason for withdrawing his claim and/or for requesting to re-open his claim just a few days later.

44.It then follows that if the Applicant did not lie about his reason for withdrawing his claim due to his father’s health condition, as found by the Director, and that a few days later when he requested to re-open his claim because his father’s condition had stabilized,it seems to me reasonably arguable that it was in the circumstances unjust for the adjudicator not to re-open his claim. 

45.Furthermore, it also seems to me reasonably arguable that, given the role of the adjudicator in dealing with the appeal as a rehearing, and in finding that the health of the Applicant’s father had nothing to do with the basis of his non-refoulement claim and could not thereby have increased the prospect of success of the claim, the adjudicator had failed to consider or consider properly the material previously submitted by the Applicant as required by section 37ZE(2)(ii), as the Director did in his decision.

46.In the premises and for the reasons given, I extend time for the Applicant’s late application and grant leave for him to apply for judicial review of the Board’s decision on the grounds as stated above, and that he shall within 14 days of this decision file and issue the originating summons, and to serve a copy together with all the relevant documents on the Board as the first respondent and the Director as the second respondent.

Dated the 11^th day of December 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