Butt Muhammad Zubair v. Torture Claims Appeal Board / Non-refoulement Claims Petiton Office

CACV 597/2020

[2021] HKCA 1430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 597 OF 2020

(ON APPEAL FROM HCAL 434/2018)

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Before: Hon Barma JA and Au JA in Court

Date of Hearing: 17 September 2021

Date of Judgment: 4 October 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 July 2020 refusing to grant an extension of time for his application for leave for judicial review and dismissing the application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 18 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 25 August 2014 and 16 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He claimed to have entered Hong Kong on 11 September 2007 illegally.  He was arrested by the police on 21 April 2008.  On 1 May 2008, the applicant was interviewed by the Director with the assistance of an interpreter.  In the Interview Report (Grounds for non-removal) dated 1 May 2008 (“Interview Report”), the applicant gave the following ground for non-removal:

“I do not want to go back to Pakistan because my life is in danger. I want to apply for a torture case. I have been accused of rape. The girl that has been raped is Sannah. I’m afraid to go back to Pakistan as I will be arrested for a false allegation.”

3.On 8 May 2008, the applicant completed a “Questionnaire for Persons who have made Claims under The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (“Questionnaire”) with the assistance of an interpreter.

4.On 17 November 2008, the Director conducted an interview with the applicant with the assistance of an interpreter.  A copy of the notes to interview (“Interview Notes”) was exhibited to the affidavit by Ms Cora Chan of the Department of Immigration dated 28 July 2021.

5.The applicant’s claim was converted in 2014 to a claim under the Unified Screening Mechanism.  The applicant obtained legal representation from the Duty Lawyer Service (“DLS”).  On 28 May 2014, the DLS wrote to the Director on behalf of the applicant stating that “the previous screening records and/or Questionnaire of the [applicant] shall not be relied upon either at the screening interview or throughout the process of making assessment of the claim”.

6.The applicant submitted (through the DLS) a Non-refoulement Claim Form (“NCF”) dated 27 May 2014 to the Director, in which the applicant gave information relating to his claim for non-refoulement protection.  In the Additional Sheets to Answer 35 of the NCF, the applicant stated that at around night time on a day in around 2007, he received a phone call from his best friend Iftikhar. Iftikhar told him that his sister (Sana) had been raped by Lala, that Iftikhar then killed Lala with a rifle and was going to leave the country the next day. Although that was his last phone call with Iftikhar, the applicant believed Iftikhar had left Pakistan.  According to the applicant, Lala’s family told the police not to investigate into Lala’s death because they would handle the matter themselves.  Lala was said to be a gangster and his family was said to be affiliated with the Pakistan People’s Party.

7.The applicant claimed that after Lala’s death, he was attacked twice with guns.  He believed those attacks were related to Lala’s death, because the applicant was close to Iftikhar, and that Lala’s family must have thought that he was involved in Lala’s death.  For his safety and that of his family, the applicant fled to Hong Kong.

8.By a Notice of Decision dated 25 August 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

9.The applicant appealed to the Board.  On 10 September 2014, in response to the request by the Board, the Director enclosed a copy of the NCF, the Record of Interview dated 16 July 2014 and letters to the applicant dated 10 September 2014 in the email dated 10 September 2014.  In the email, the Director notified the Board that “Please be informed that the Duty Lawyer Service on [the applicant’s] behalf informed our department the previous screening records and/or questionnaire of the claimant shall not be relied upon either at the screening interview or throughout the process of making assessment of the claim”.

10.On 29 January 2015, the Director provided the hearing bundle for the hearing before the Board to the applicant and the Board.  The bundle included, among other things, the Interview Report, but not the Questionnaire or Interview Notes.  Ms Chan for the Director gave an explanation for this arrangement at §32 of her affidavit:

“…The Interview Report…not being part of the previous screening records, was included in the hearing bundle, on the basis that it is a document relevant to the Applicant’s non-refoulement claim. The Interview Report was referred to in the Director’s Notice of Decision (dated 25 August 2014) at paragraphs 1 and 5, and it illustrated the first occasion when the Applicant indicated his reasons to oppose his removal from Hong Kong and his intention to make a torture claim, which invoked the screening process of his torture claim. The [Questionnaire] and the [Interview Notes], were…not included in the hearing bundle as DLS had informed the Director that the said materials should not be relied on during the non-refoulement assessment process…”

11.In the hearing on 5 February 2015 before the Board, applicant acted in person and he gave evidence.

12.By a Notice of Further Decision dated 16 October 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

13.On 18 October 2017, the Board handed down its decision dismissing the appeal (“Board’s Decision”).  The Board did not accept the majority of the applicant’s case for claiming non-refoulement protection.  The Board did not make any finding related to internal relocation or state protection.

14.The Board, however, made the following remarks in its decision:

“11. The significance of his ground [raised in the Interview Report dated 1 May 2008] to the present appeal is twofold. First, it showed that the Appellant was a fugitive from justice. Secondly, it completely contradicted the case of the Appellant as presented in his [NCF dated 27 May 2014].

12. [The applicant] was asked about the accuracy of the [Interview Report] and the ground contained therein in relation to his present case. The Appellant explained that there must be some misunderstanding but he did not consider it a big mistake. He pointed out that someone asked him to sign this Interview Report and he just signed it. He had nothing to say on it. I am not satisfied with the Appellant’s explanation. I find that he changed his ground when he became aware of the fact that the ground of fugitive from justice could not support a torture claim.

…

42. … At this point, I should go back to the Appellant’s very first ground which he used to support his torture claim as recorded in the Interview Report dated 1 May 2008. He said, among other things, that ‘I have been accused of rape. The girl that has been raped is Sannah.’ From this admission of the Appellant, Lala had not raped Sana and therefore had not been killed. It followed from such situation that Lala’s family never took revenge on the Appellant by spraying bullets on his house twice. There was, therefore, nothing for the Appellant to report to the police and Lala’s family had nothing to take revenge on.

…

49.    I have analysed the Appellant’s case earlier.  I am fully satisfied that there was no murder of Lala and no attacks on the Appellant’s house.  I find the first admission of the Appellant that he had raped Sana persuasive and credible because it was made off-guarded and without contrivance.  I find that the Appellant was a fugitive from justice.”

The judge’s decision

15.The applicant filed a Form 86 and a supporting affirmation on 19 March 2018.  The applicant claimed that if he returns to Pakistan, it will be dangerous for him and his family.  He also claimed that the delay in bringing the application for leave for judicial review was due to the lack of notification from the Board.

16.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

17.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed the application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [16] to [19] of the CALL-1 Form:

“16. As the last day of the three-month period for him to file his Form 86 fell on 18 January 2018, the Applicant was therefore two 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.

17. In the Applicant’s case, a delay of two months must be considered as significant, for which he explained in his Form 86 that he had changed his address without providing any further particulars, but given that his address stated in his Form 86 appears to be different from the one to which the Board sent its decision, I assume he meant to say that because he had changed his address, he did not receive the Board’s decision within the stipulated period for him to file his Form 86, but in the absence of any further particulars as to exactly when he changed his address or any evidence that he had accordingly informed the Board, I am not satisfied that the Applicant has provided any good reason for his delay.

18. Nor did he, as noted above, disclose any reasonably arguable grounds for his intended challenge, and in the absence of any error in the Board’s decision being shown by the Applicant, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their assessment and determination of the Applicant’s claim. As such I do not find any merits in his intended application.

19.    For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time, and accordingly dismiss his leave application.”

Grounds for appeal

18.In the Notice of Appeal filed on 9 November 2020, the applicant stated that:

“The High Court gave the decision on my judicial was refused, but I have still problem in my country. I request to test again my case…

… I was unable to submit any documentary proof during my USM interview, because if I try to take through my family they also need to face [unintelligible] trouble.  Therefore I start my life in Hong Kong and I was married and I have one child too.  Then I apply depending visa and waiting for my dependent I.D. and I like to leave peacefully without any problem.”

19.The appeal hearing was originally fixed for 22 June 2021.  On 9 June 2021, this court directed that the Director be joined as a Putative Interested Party and the hearing be adjourned to 17 September 2021.  The Director was directed to address the court on the following matters:

(1)  whether it was open to the Board to have regard to any screening records or questionnaire filed before 28 May 2014 when reliance on the same has been disavowed by the applicant; and

(2)  in any event, whether or not it was open and/or fair for the Board to come to the findings at §§11, 42, 49 of its decision dated 18 October 2017.

20.Ms Cora Chan of the Department of Immigration filed an affidavit dated 28 July 2021 where she exhibited the relevant documents and gave an overview of the procedural history of the applicant’s claim.

21.The applicant did not file any written submission and was absent from the appeal hearing, despite having been reminded of the adjourned hearing date.

22.The Director (represented by Mr Aaron Lam and Ms Karen Ngai of the Department of Justice) filed written submissions on 3 September 2021.  The Director contended that:

(1)  the Interview Report (unlike the Questionnaire and Interview Notes) was not expressly disavowed by the applicant and it was relevant to the appeal to the Board.  The Board thus did not commit an error of law in having regard to and considering the Interview Report;

(2)  while it was accepted that the Board’s finding that the applicant had admitted to raping Sana was not supported by the evidence, it did not necessarily follow that the it was not open to the Board to dismiss the appeal based on the other findings of fact against the applicant.  Further, this point was not raised by the applicant in the court below and it is not permissible for him to rely on the same in appeal (re: Nupur Mst [2018] HKCA 524)

23.At the oral hearing on 17 September 2021, the applicant did not appear.  We proceeded to hear the appeal in his absence.  In his submissions for the Director, Mr Lam referred us to [12], [23], [33] and [39] of the Board’s Decision and submitted that the Board’s Decision could be supported by the findings at these paragraphs, notwithstanding the fact that the Board made an error in interpreting the Interview Report and wrongly concluded that the applicant had admitted raping Sana.

Discussion

24.So far as the inclusion of the Interview Report in the bundle for the hearing before the Board, and the Board’s reliance on its contents, is concerned, we have considered the summary of the procedural history of the applicant’s claim given in Ms Cora Chan’s affidavit.  While we are prepared to accept that the Director included the Interview Report in good faith, it seems to us that it is reasonably arguable that the DLS request for exclusion of all materials relating to the screening process in respect of the initial torture claim in 2008 should have been regarded as extending to the Interview Report, which although not formally a part of the screening process, was clearly the occasion on which the torture claim was first advanced, so as to put the screening process into motion.  This, we think, is arguably so notwithstanding that the Interview Report was never expressly disavowed by or on behalf of the applicant and that the Director had fairly informed the Board of the request by the applicant (through the DLS) to not rely on the previous screening records.

25.But even if this contention is ultimately rejected, there are in our view concerns arising from the use of the Interview Report by the Board.  It appears that the applicant never had legal representation prior to the making of the Interview Report.  Thus, following FB v Director of Immigration [2009] 2 HKLRD 346, the use of such a report against the applicant may be potentially unfair to him.  Further, the DLS had earlier indicated on behalf of the applicant that the previous screening records and questionnaire should not be relied upon and this was communicated to the Board in the email on 10 September 2014, and this would at least raise questions as to whether or not the Interview Report should similarly be excluded.

26.In the circumstances, it is in our view also reasonably arguable that the Board ought to have ascertained with the applicant whether he wished to disavow the Interview Report, particularly when the applicant was unrepresented in his appeal to the Board, and that the failure to do so amounted to a breach of procedural fairness, on the basis of which the Board’s decision would be susceptible to judicial review.

27.The second issue arising from the use of the Interview Report by the Board is its finding that the applicant had made an admission to raping Sana in the Interview Report.  This finding is plainly one that is not justified from what was stated in the part of the Interview Report set out in [2] above.   As we have noted, the Director fairly accepted that this finding was not supported by the evidence.

28.At the hearing, the Director submitted that this error was not necessarily fatal, and that the Board’s Decision could nonetheless be supported by other findings (in particular [12], [23], [33] and [39] of the Board’s Decision).  In his written submission, the Director also submitted that the Board found inconsistencies between the Interview Report and the applicant’s case before the Board, and the Board rejected the applicant’s explanation for those inconsistencies given at the Board’s hearing (Questions 222 – 248 of the transcript), so that it did not necessarily follow that the applicant would have succeeded in his appeal to the Board.

29.Paragraph 12 of the Board’s Decision expressly referred to the Interview Report and described the applicant as a fugitive from justice, so cannot support the Director’s contention at the hearing.  While paragraphs 23, 33 and 39 may be understood as referring to the inherent improbability of the applicant’s story and are not related to the rape of Sana, we feel unable to accept the Director’s submission that it is not reasonably arguable that these paragraphs were tainted by the misinterpretation of the Interview Report.  It seems to us to be well arguable that the Board’s finding that the applicant had admitted to raping Sana was a significant (if not decisive) factual error, as it “completely contradicted” (to use the phrase in [11] of the Board’s Decision) the centerpiece of the applicant’s case before the Board, namely that Lala had raped Sana (and was killed for doing so).

30.It seems to us that by suggesting that it did not “necessarily” follow that the Board’s decision was tainted by the error, the Director must implicitly be accepting that it could follow that the Board’s decision was so tainted.  At any rate, it appears to us that if (as seems well arguable) the Board had taken an impermissible or incorrect factor into account, it must be at least reasonably arguable that absent that factor, the decision may have been different.  It must be at least doubtful whether the Board would have come to the strong views it expressed about the applicant’s lack of credibility if it had excluded the Interview Report or correctly interpreted the report. 

31.In our view, each of the two issues considered above passes the threshold test for granting leave for judicial review.  Given their importance, notwithstanding the applicant’s delay in applying for leave and the fact that these matters were not raised before the judge, we are of the view that this appeal should be allowed and leave for judicial review be given to the applicant to seek judicial review of the Board’s decision on the basis of these grounds.

32.As for the other grounds advanced by the applicant in the Notice of Appeal, these were not raised in the court below and wholly lacked particulars.  They are entirely without merit, and we would not give leave to bring judicial review proceedings on their basis.

33.We would therefore allow the appeal, and grant leave to the applicant to bring judicial review proceedings in respect of the Board’s decision.  As noted above, the Director has reserved his position in respect of such proceedings, which must therefore take their normal course.  We would remind the applicant that pursuant to RHC Order 53 rule 5, such proceedings should be commenced by Originating Summons within 14 days from the date of this judgment, being the date on which leave to bring judicial review proceedings was granted.  If the applicant wishes to apply for legal aid in connection with the judicial review proceedings he has been given leave to commence, he should do so as promptly as possible.

34.As the Director has only participated in this appeal at the court’s request, and bearing in mind that the grounds of appeal advanced by the applicant have been unsuccessful, we make no order as to costs in respect of the appeal.

The applicant, unrepresented, absent

Mr Aaron Lam, Senior Assistant Law Officer (Ag) and Ms Karen Ngai, Senior Government Counsel (Ag) of the Department of Justice, for the 2^nd putative interested party