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

HCAL 1513/2019

[2023] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1513 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;   or
	consideration of documents and oral submission by counsel for the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   the applicants’ leave application be dismissed;

2.   the anonymity and sealing order made at the commencement of these proceedings be lifted and set aside;

3.   costs of the action be in accordance with paragraph 77, supra, this is to say, the costs of the applicants should be taxed in accordance with the Legal Aid Regulations, disallowing any costs incurred for the COI which are deemed irrelevant to the proceedings before the Board and/or before this Court;

4.   the non-legal representation of the youngest son, as required under Order 80, rule 2 of the RHC, is treated as an irregularity only and will not nullify the present proceedings under Order 2 rule 1 of the RHC[1].

Observations for the Applicant:

THE APPLICATION

1.There are 5 applicants in this action.

2.The 1^st applicant and the 2^nd applicant are husband and wife, the 3^rd to the 5^th applicants are their children and this is their joint application, which relies upon the facts of the 1^st  applicant. They are collectively referred to as (“the applicants”).

3.Their joint application is for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which dismissed their appeals against the decision of the Director of Immigration by way of a Notice of Decision dated 21 June 2017, rejecting their non-refoulement claims (“the Director’s Decision”).

4.I shall refer to the 1^st applicant as the husband, the 2^nd applicant as the wife, the 3^rd applicant as the first son, the 4^th applicant as the second daughter and the 5^th applicant as the youngest son. The first son was born on 26 May 2001 in Pakistan; the second daughter was born on 10 October 2002 in Pakistan and the youngest son was born on 9 October 2009 in Hong Kong. See also paragraph 23 below.

5.The applicants are represented by Mr Francis Ngan, Counsel, on the instructions of Messrs. Daly & Associates, the solicitors assigned by the Director of Legal Aid. The hearing before this Court took place on 18 April 2023.

The applicants

6.The applicants in the present proceedings are nationals of Pakistan. The husband was arrested by the Hong Kong police on 16 March 2015, whilst the wife, the first son and second daughter surrendered to the Immigration Department on 30 March 2007, claiming that they entered Hong Kong illegally on the same date.  The youngest son was born in Hong Kong on 9 October 2009.  The family previously raised a torture claim, which was later rejected on 8 November 2013.  Their subsequent appeal was adjourned by the Board pending the determination of their non-refoulement claim, which was assessed on all the applicable grounds other than that on torture risk[2].

7.The husband claimed that, if refouled, he would be harmed or killed by the Pakistani police and/or members of the Sunni sect due to his conversion from  a Sunni Muslim to a Shia Muslim.  He also feared that he would face a risk of harm for being a potential witness for a case and also because of the First Information Reports (“FIRs”) and/or warrants issued against him.  The wife’s claim was based on the same fear of risk of harm due to her conversion to a Shia Muslim.  Insofar as the children were concerned, their claims stemmed from their status as Shia Muslims and their parents’ risk of detention, torture and persecution.

8.The husband and wife were both born in a Sunni family in a village called Ladhay.  In Ladhay, there were religious conflicts between Sunni and Shia sects.  Moreover, there was a radical religious group called Sunni Tehreek, in which Tariq, Maqsood and Tasleem were the leaders (“the three leaders”).  In 2000, the husband converted from Sunni to Shia under his friend’s influence. The three leaders spotted the husband’s attendance to the Shia meetings.  They started to verbally abuse him and also notified his father.  His father was furious and beat him.

9.In 1999, the husband married the wife.  In 2000, the wife also converted to become a Shia.  In 2001, they were kicked out by the husband’s father for not giving up the Shia religion.

10.On 6 August 2002, a fight broke out between the Sunnis and the Shias. During the fight, a Sunni villager Abdul Rashid was killed.  Abdul’s father subsequently reported three men, including the husband, to the police, alleging their involvements in killing Abdul.  Feared that the police would arrest him, the husband went to his uncle’s home in Olakh Bhaikay.  The same night, the wife, in her 7.5 months’ pregnancy, was beaten up by some unknown men sent by the Sunni villagers.  Yet, she dared not report the incident to the police. After she regained consciousness, she immediately escaped to her uncle’s home in Gorjera with their elder son.  Meanwhile, the husband was informed of the FIR filed against him and afraid that the police would arrest him in his uncle’s house.  Thus, the husband moved to Birkund village.

11.After the first incident, the husband’s brother was attacked by the three leaders.  On 8 August 2002, the wife was arrested and detained in the Bambanwala police station.  She was ill-treated during detention for information of the husband’s whereabouts. There were no woman police officer there and the male police officers inflicted sexual violence on her by pulling off her clothes and touched her body. She was only released on the next day. Two months later, the wife gave birth to their second daughter.  She was also informed of the harassments from a group of unknown people against her father for information of her whereabouts.  The husband’s father was also arrested by the police in the Bambanwala police station for the husband’s location.

12.On 23 December 2002, the husband arrived in Hong Kong to seek protection.  His asylum claim was rejected in 2009.

13.On the other hand, in 2003, the wife and their children had been moving around between their relatives and resided in Awalkhan village for three years until January or February 2007.  Then, the wife moved to live with her parents.  One day, a gun shot was fired by the same group of people who harassed her parents.  Her father sought to file a case against these harassments but again failed because no one wanted to be his witness.  The wife believed that those unknown men were from the Sunni militant group.  In March 2007, to avoid the risk of harm, the wife took their children and sneaked into Hong Kong.

14.On 7 January 2006, the husband was informed by his lawyer in Pakistan that the case against him was pending before a court in Daska and, as he was declared an absconder, a warrant of arrest was issued against him with a condition that he would not be bailed.  In July 2007, the husband’s father announced that he would disown and disinherit the husband.  In 2009, the wife’s father was killed by some unknown men who she believed to be sent by the three leaders.  Her brothers were also attacked but the report to the police was again of no avail.  In 2010, the three leaders and their people interrupted the weddings of the wife’s sisters and fired gunshots to threaten them.  No one was physically injured.  On 1 December 2014, the husband’s cousin was killed by militants of Deobandi who the husband believed to be sent by the three leaders.  Relying on these feared risks of harm, the applicants sought protection in Hong Kong.  Details of their claim are set out at paragraph 14 of the Director’s Decision.

The Director’s Decisions

15.The Director considered their applications in relation to the following risks:

a.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

16.By way of the Director’s Decision, the Director dismissed their claims on the basis that their alleged fear of harm was groundless.  In elaboration, the Director found that (i) the country of origin information (“COI”) did not support a claim that the applicants would be targeted or killed or chased down everywhere due to their Shia religion [22]-[26]; (ii) the behaviors of their alleged enemies showed no intention to cause harm or even kill them [27]-[32]; (iii) state protection would be available to them [33]-[48]; and (iv) internal relocation was a viable option [49]-[57].

The Board’s Decision

17.The applicants appealed the Director’s Decision to the Board.  The Board considered all applicable grounds, including that on the torture risk [11]. The Board conducted an oral hearing for their appeals, during which they were legally represented.  In passing, the wife insisted to have a female interpreter to assist her, a request which was rejected by the Board as it was of the view that all interpreters were qualified and professional [27].  The wife left the hearing.  The husband also requested an Indian interpreter, based upon his concern over a substantive aspect of the claim. The Board refused his request, stating that it failed to see how an Indian interpreter would help his case.  The husband testified with the assistance of an interpreter [31].

18.The Board summarized the husband’s oral evidence.  Among others, the Board observed that the wife was not involved in the fight on 6 August 2002; that it was only hearsay evidence that her brother told her she was involved in the killing incident; that the injuries sustained by the wife the night of the attack was not serious as she was able to travel for 45 minutes afterwards and only received stitches for her lower back and hip area; that the husband’s evidence was mostly hearsay and not reliable; that the wife’s evidence about the ill-treatments in the police station was bare assertions as she did not give evidence.  Meanwhile, the Board took the view that it was illogical that her parents would report to the police about the harassments but did not report their daughter’s ill-treatments in the police station.  Nevertheless, the Board found that the individual acts of the police officers did not represent the Risk state; that the incidents happened in January or February 2007 against the wife’s family were empty threats; that the husband’s conducts while he was in Hong Kong were inconsistent with someone who needed a non-refoulement protection; that the husband was a fugitive who fled to Hong Kong to avoid arrest; that he was not a target in the group fights between Sunnis and Shias; and that his claim was based purely on hearsay evidence [31]-[57].

19.The Board then proceeded to consider their claims under the individual grounds.  It considered the COI and concluded that state protection would be available to the applicants [60]-[64].  In assessing the individual grounds, the Board found that the husband was not severely injured; that he was not a target and was not in charge of any operations of the gathering [65]; that the fight between Sunnis and Shias which the husband was involved was an one off incident to him [67]; that the wife’s injuries were not serious [68]; that the unknown men who visited the wife’s house only damaged the walls of the house without inflicting any harms [70]; that the wife and the children encountered no problems with the Pakistan government when they departed Pakistan [71].  In these premises, the Board rejected their claim on the ground of Torture risk and other applicable risks.  The Board further noted that the husband was a fugitive from law and therefore was not a refugee [85].

20.In any event, the Board stated that the husband and wife had respectively lived in other areas in Pakistan without problems.  As a result, internal relocation was a viable alternative for them [90]-[97].

Application for leave to apply for judicial review

21.The applicants filed their joint application by Form 86 as amended on 17 March 2023, pursuant to the Court’s Order dated 23 February 2020, for leave to apply for judicial review of the Board’s Decision.

22.The applicants have raised the following grounds in support of their joint application:

(1)  the hearing was unfair because the Board refused to accede to the wife’s request to change the interpreter;

(2)  the adjudicator committed multiple errors of law when assessing the evidence before him, taking a wrong approach and failed to apply the relevant legal principles to the case;

(3)  the Board failed to make inquiry into all relevant country conditions and also failed to give adequate reasons for his findings;

(4)  the Board failed to apply the relevant legal principles concerning the issues of availability of state protection and internal relocation;

(5)  the Board failed to consider and/or properly assess all grounds of the applicant’s non-refoulement claim;

(6)  the Board erred in failing to apply the relevant principles concerning whether or not international protection should be withdrawn from the husband because he had committed a serious non-political crime; and

(7)  the Board failed to separately assess the non-refoulement claim of the children.

DISCUSSION

23.As a preliminary issue, this Court observes that the first son and the second daughter are now of age. Only the youngest son remains a minor.

24.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

25.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

26.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

27.On the bases of the above legal principles, I shall consider the grounds of review set out in paragraph 22, supra.

Ground (1)

28.Counsel complains that the Board had unreasonably refused to accede to the wife’s request for a female interpreter and the husband’s request for an Indian interpreter.

29.At paragraph 26 of the Board’s Decision, the Board stated:

“At the oral hearing session, the second Petitioner through her lawyer insisted to have a female interpreter. She did not state why.

All interpreters are qualified interpreters. I cannot see any reason why she insisted in having a female interpreter except to delay.

After I made the ruling, she left the hearing and deprived herself of the chance of giving evidence or to state her case.

The first Petitioner through his lawyer then repeated for an Indian interpreter because of concern in respect of substantive aspect of the claim.

It was a bare statement. I cannot see how an Indian interpreter could help his case. All interpreters are professionals. I cannot see why an Indian interpreter is necessary except again for the purpose of delay.

The first Petitioner adopted what he had already stated. …”

30.Counsel submitted that the Board was wrong to say that the wife did not state why. Enquiry was made as to whether Mr Daly had submitted any reasons on behalf of the wife. I acceded to counsel’s request to adjourn the hearing for him to obtain further instructions from Mr Daly. Counsel finally submitted that he had to obtain the transcript of the hearing, particularly on this issue from the Board and asked for leave to submit further evidence. Leave was given for this purpose.

31.Mr Daly has filed an affirmation, in which he referred to his request to the Director for a female interpreter for the wife and the Director acceded to his request. He also said that he had told the Board at the hearing and the followings are the relevant transcript:

“…And the 2^nd Appellant, the wife, for cultural reasons similarly doesn’t want a Pakistani interpreter and wants, because of the sensitivity of her story wants a female interpreter. And this is quite important for her, she will not tell – she will not give evidence to a male Pakistani interpreter.

She feels traumatized by what she has gone through, and she will be not willing to go into it with a male interpreter.

She has not gone into the sensitive details of what happened to her with any other male.”

32.From the transcript, it appears that Mr Daly had stated the  reasons above for a female interpreter for the wife. . It is therefore not appropriate for the Board to say that the wife did not state the reason for insisting on having a female interpreter.

33.By refusing to give evidence as requested by the Board, the wife was in breach of section 37ZA (1)(a) and section 37ZD of the Ordinance:

“ 37ZA. Duties of claimant

(1) It is the duty of a claimant to substantiate a torture claim, and to this end, the claimant must—

(a) provide to the Director and (on an appeal) to the Appeal Board all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim, including any document supporting those facts; …

37ZD.Credibility of claimant

(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—

a. any behaviour that the immigration officer or the Appeal Board considers is designed to, or is likely to be designed to—

i. conceal information;

(2) Without limiting subsection (1)(a), behaviour described in any of the following paragraphs is behaviour within the meaning of that subsection—

a. failure, without reasonable excuse, to comply with any requirement, procedure or condition (including any time limit)—

(i)  prescribed by this Part; or

(ii) required or specified by any person under this Part.

(3) This section does not prevent an immigration officer or the Appeal Board from taking into account any other behaviour of the claimant as damaging the claimant’s credibility.

34.In my view, the wife might give evidence on the evidence other than that she complained to be sensitive issues inside the police station.

35.It is unfortunate that the wife had abandoned her right to give evidence to prove her case on other non-sensitive issues. In fact, those sensitive issues were, as I understand them, her evidence of sexual violence by the police officers inside the police station. See paragraph 11, supra.[3]They are relevant to her experience in Pakistan. However, they are by no means evidence to show the future risks if she returns to Pakistan. There is no evidence to show that other police stations or police officers in Pakistan will administer sexual violence on the wife if she returns to Pakistan. The Director and the Board had found that there is no evidence to show that she may not have state protection in Pakistan.

36.Even if the wife succeeds in her claim that the Board had committed procedural irregularity for refusing her choice of interpreter, this Court still has to assess other issues, such as state protection and internal relocation, for determining whether she has a realistic prospect of success in her application for judicial review of the Board’s Decision.

37.I accept that the procedural irregularity of refusing providing the wife with a female interpreter would cause prejudice to her claim as the Board had, for this reason, refused to accept her allegation of having sexual violence inside the police station. State protection has been discussed in paragraph 35, supra. There is no evidence from the wife to challenge this finding.

38.As to internal relocation, the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), held:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

39.There is evidence to show that the wife had lived in other areas where she was not harassed by her enemies. See paragraph 25 of the Board’s Decision. Internal relocation is therefore a viable alternative for her if she returns to Pakistan.

40.The husband proceeded with the hearing and had given evidence. There is no complaint from the husband as to the prejudice he had suffered because of the Pakistani interpreter. The Court of Appeal in Afsar Khan v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [2019] HKCA 751, Hon Yuen & Au JJA held:

“17. …for the court to grant relief in judicial review based on procedural unfairness, the applicant should also demonstrate that he has suffered prejudice by reason of that. …”

41.This ground in respect of the husband cannot sustain.

42.I therefore find that this ground fails.

Ground (2)

43.Counsel for the applicants refers to a number of incidents where the Board assessed the evidence and complains that the Board had committed errors in failing to provide adequate reasons.

44.Counsel says that the Board adopted a dismissive attitude, discarding all relevant evidence of what happened to the husband’s family, referring to paragraph 31 of the Board’s Decision, which reads:

“The first Petitioner adopted what he had already stated. He further stated that his paternal uncle and aunt were recently tortured and his cousin was murdered in Lahore. He claimed to have video footage but had not been produced. The first Petitioner has left Pakistan on 19 December 2002 for over 16 years and had not been involved with what happened in Pakistan except for some communication with his lawyer about his case. I can hardly see there is any relevancy or connection with his claims.”

45.Counsel has also pointed out that the Board had mistaken the identity of Sarder Ghulam Glani as the husband’s cousin, whereas he actually was the wife’s father. I find that this mistake has no real bearing on the core issues of the claim. I note that Counsel comments that this shows the attitude of the Board.

46.The Court of Appeal in Kartini’s case has held that the assessment of the evidence for the finding of the facts is within the province of the Board. The Board had taken into consideration those facts as stated by the husband in his statement. It had given its reasons for not giving weight to the evidence in support of the husband’s claim. This Court should not interfere with the Board’s finding.

47.Counsel also refers to paragraph 37 of the Board’s Decision and submits that the Board had commented that the FIR was only a FIR, and not arrest warrant, without considering also other documents including an Arrest Warrant dated 18 December 2002 and an Accused Attendance Order dated 4 January 2003, both issued by a judicial magistrate in the husband’s name.

48.As I see it, it seems that Counsel complains that the Board had not given due weight to the arrest documents without giving sufficient reasons. However, I am of the view that the Board’s focus is that it was illogical that his enemies should only frame up the husband as a newly converted Shia. The Board took the view that the husband should clear his case instead of running away. On such reasoning, whether the arrest documents were valid or not is irrelevant. The Board was entitled to take that view in its assessment of the evidence. Even if the husband may be arrested on the arrest documents as alleged, the Board took the view that he should clear his case instead of running away and there is no evidence that he may not have state protection if he returns to Pakistan. The Court should not interfere.

49.Counsel then refers to paragraph 41 of the Board’s Decision, in which the Board considered that “even if the wife was attacked on the night of 6 August 2002, there was no evidence that those men were assigned by the Sunni villagers. It was only speculation by the husband….” Counsel argues that the Board had failed to consider the wife’s evidence in the round.

50.It is clear that the Board was entitled to consider the evidence, refusing to give weight to evidence that it considered not believable. This Court should not interfere with the Board’s decision.

51.Counsel complains that the Board had failed to find the facts of the wife’s case simply because she refused to give evidence. However, it was because the Board had refused to assign a female interpreter for her at the hearing. Counsel refers to paragraphs 40 and 46 of the Board’s Decision:

“40. It was only hearsay that her brother told her she was involved in killing incident on 6 August 2002. As she chose not to give evidence during the oral hearing because the interpreter was a man, there was no way in which her evidence could be tested.

46. As she did not give evidence, those were bare assertions and there is no way to verify the truths or otherwise of her allegations. In any event misconduct of some policemen in Bambanwala Police Station did not show that the state was involved or condoned the misconduct of a few officers in a particular police station. In fact, the second Petitioner was informed by her parents that a group of unknown people had gone to their house to harass them. They had approached the Bambanwala Police Station to report the harassment many times. There was no reason why they did not approach the police station to report the harassment of their daughter while detained for 1 day in the police station.”

52.Paragraph 40 of the Board’s Decision is clearly having no sensitive issues in the wife’s evidence. She had no reason to refuse to answer questions on this issue.

53.Paragraph 46 of the Board’s Decision touched on the sensitive issues of the wife’s experience of sexual violence by police officers inside the Bambanwala Police Station. In the Director’s Decision, it was reported that the male police officers had pulled her clothes and touched her body. Under section 37ZR of the Ordinance, the Board has the power to consider the same evidence that was before an immigration officer. Obviously, the Board had done so. It had raised the issue that such incident did not show that the state was involved or condoned the misconduct. It had also raised the query that it would be illogical for the wife’s parents not reporting the wife’s case to the police station.

54.The Board had considered the wife’s case even she did not give evidence at the hearing. This is within the statutory power of the Board under the law. The Court has no reason to interfere with the Board’s assessment of the evidence and its findings.

55.Counsel submits that the Board has erred in law in rejecting all hearsay evidence of the husband on the one hand, and on the other hand, it relied on the husband’s evidence to say that he “was in fact a fugitive who fled to Hong Kong in order to avoid arrest [55]’

56.The Board did not refuse to admit the hearsay evidence for its consideration. It did not attach weight to the hearsay evidence after considering that the evidence was unreliable. [44] The Board was entitled to exercise its discretion to accept parts of a witness’s evidence and to reject other parts. The Court of Appeal in Wong Kin Kwok Michael v The Dental Council of Hong Kong CACV 183/2014, Hon Yuen, Kwan and Chu JJA, 20 May 2015 held:

“23.2 … a fact-finding tribunal is entitled to accept parts of a witness’ [sic] evidence and to reject other parts. …”

57.It is trite that a tribunal or a court will be more ready to admit evidence which is against the witness’s interest, on the basis that such evidence is more reliable than the evidence which exempts the witness’s liability. The rationale is simple: if the evidence against himself is not true, why did the witness adduce  it?

58.Counsel submits that the Board’s factual findings in the applicants’ claim are unclear. Obviously, he refers to the incidents as alleged by the husband and the wife, some of which the Board accepted and the others the Board rejected. These can be found in paragraphs 65 to 71 of the Board’s Decision. In my view, the unique fact that the Board had found is in paragraph 71 in respect of their torture claim:

“There is no real risk of torture upon their return to Pakistan.”

59.This fact applies to other risks as well.

60.Counsel complains that the Board had adopted its common sense approach and made the credibility findings based on assumptions, conjecture or speculation, referring to the following incidents:

(1)  the husband’s evidence was not credible as he did not turn to the police for assistance;

(2)  the wife’s evidence was not credible because her parents did not report her torture inside the police station to the police;

(3)  the husband’s evidence was absurd for him to describe himself as a rising star amongst his Shia peers;

(4)  the husband’s evidence was illogical as his enemies would not frame up him, being a newly converted Shia;

(5)  the wife’s evidence that she was seriously injured on 6 August 2022 [sic] because she was able to travel for 45 minutes to 1 hour;

(6)  the findings that the incidents of threats and gunshots to the applicant’s family were empty threats and the Sunni Muslims did not intend to kill or injure the husband and the wife, which are inconsistent with the husband’s and the wife’s evidence that, since they had left, harms were done to their families and the wife’s father was killed for helping the applicant leave the country.

61.The Court of Appeal in ST v Betty Kwan, the Secretary for Security and the Director of Immigration [2014] 4 HKLRD 277 Hon Cheung CJHC, Lam VP & Poon, held:

“43. … … where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. … What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

62.The Court of Appeal of the above case has raised caution when the Board considers applying common sense to foreign situations or circumstances such as cultural difference, custom, habits or ideologies, which may be different from the local situations or circumstances. It does not mean that the Board should not use common sense for the assessment of the evidence. This is simply not practicable because common sense forms the foundation of one’s reasoning.

63.Turning to the examples above, (1), (2), (4), and (5) are logical analyses without foreign elements; (3) is the adjudicator’s personal view, which may be subjective; but it does not affect the overall assessment of the evidence; (6) is the adjudicator’s view as the husband and the wife were not killed and the Board did not accept the evidence that harms had been done to their families and the wife’s father had been killed by their enemies. In any event, the subjective elements in the Board’s analyses do not appear to impugn the Board’s finding that the applicants failed to establish that they would be harmed or killed if they return to Pakistan, taking into consideration that state protection is available to them and internal relocation is also a viable alternative for them.

64.Counsel further complains that the Board committed errors in failing to consider the husband’s immigration history in the proper context. He argues that the non-refoulement regime was put in place on 8 June 2004. The husband lodged an asylum application to UNHCR in 2005 when he came to know the existence of such avenue while in detention. Therefore, he submits, it is unreasonable for the Board not to take into consideration of all the circumstances before it made its decisions.

65.Having considered paragraphs 53 and 54 of the Board’s Decision, I am satisfied that the Board had taken into account the relevant facts into consideration before it made its conclusion in paragraph 54 that his conduct is inconsistent with someone who genuinely wanted non-refoulement protection. This is especially borne out by the fact he was arrested by police while working as a transportation worker in a company. He was charged and convicted by the court and sentenced to 9 months’ imprisonment on 20 July 2005. I see no reason to interfere with the Board’s finding.

Ground (3)

66.Counsel argues that the Board’s Decision is liable to be quashed on the grounds that:

(1)  The Board failed to make inquiry, let alone sufficient inquiry, into all relevant country conditions (“COI”) (emphasis added); and

(2)  The Board failed to give adequate reasons for its ‘findings’ on the relevant COI.

67.Counsel has set out a table listing the COI considered by the Director and those considered by the Board and suggests that the Board was very likely merely copying the corresponding paragraphs in the Director’s Second Decision. He submits that although the Board was entitled to refer to the same COI relied upon by the Director when he considered relevant issues, the Board still needed to show that he had applied his mind independently when assessing such evidence. Counsel further submits that the applicants had summited their own COI, which was cogent and highly relevant to their claims. But they were not even mentioned in the Board’s Decision.

68.For those reasons above, Counsel submits that the Board failed to independently consider COI before it.

69.The above issues and arguments had been considered by the Court of Appeal in another case and it has concluded that they are not grounds for judicial review of the Board’s Decision. The Court of Appeal in B v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2023] HKCA 520, Hon Yuen JA and D’Almada Remedios J, held:

“50. In our view, the mere fact that the Board did not address and discuss each and every piece of COI placed before it is not in itself a ground for judicial review. It is not within the Board’s remit to attempt to reconcile those materials, nor is it bound to choose only those materials which are favourable to the applicant’s case because, as noted above, the materials come from different sources, are published at different times, contain different degrees of detail, and have different depth and perspectives. It is not fair to the Board to argue that because it has not specifically referred to one particular piece of information, that it was “overlooked”. The Board is not expected to give a summary of all the materials it has been provided with, just to prove that it has considered them all. The purpose of the COI is to see, by reference to independent objective materials, whether the applicant’s alleged fear of being persecuted due to discrimination was “well-founded”.”

70.The Board was entitled to make its findings of fact, which should not be interfered with by the Court. This ground fails.

71.Whilst the discussion is on this issue, and in view of the Court of Appeal’s decision above, I shall set out my observations of the proceedings before the Board below.

72.The Court of Appeal’s decision above clearly set out the correct approach of the parties before the Board in their preparation for the hearing. The spirit of Civil Justice Reform of assuring and improving access to justice at a reasonable cost and speed[4] , which has been in place for over 24 years, applies to all civil legal proceedings, including the proceedings before the Director, the Board and this Court. Under Order 1A, rule 1 of the RHC, it is provided that, inter alia:

1. The underlying objectives of these rules are –

(A) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(B) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(C) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; and

(D )to ensure fairness between the parties.

73.I have noted from the transcript of the proceedings before the Board that the adjudicator had commented that Mr Daly’s practice was to supply the Board with huge amount of COI, which will inevitably increase cost and time for the proceedings in the Board, and also for this Court.

74.The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, CJ Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ held:

“174. … the deportee must show “substantial grounds ... for believing” or “strong grounds for believing” that if deported (or extradited) he faces a “real risk” of being subjected to torture or CIDTP.’

176. …the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.”

75.The purpose of making reference to the COI is for assessment of the real risk of the applicants being subjected to the applicable risks upon refoulement. The COI should be those that have come to light after the deportation decision was taken. Other outdated COI or irrelevant COI should not be submitted to the Board for the purpose of saving time and cost for the proceedings. The legal representatives before the Board have a duty to ensure compliance with this requirement as they have the duty to uphold the CJR in all civil legal proceedings in Hong Kong. This Court has the power to supervise their professional conducts and ethnics and to ensure their compliance by way of case management and making the orders of costs for the proceedings before the Board and the Court under Order 1B, rule 1 of the RHC.

76.For the above reasons, I shall make an order below that the costs of the applicants should be taxed in accordance with the Legal Aid Regulations, disallowing any costs incurred for the COI which are deemed irrelevant to the proceedings before the Board and/or before this Court. The removal order was made against the wife, the first son and the second daughter on 9 July 2007. See page 92 of the bundle of documents, the Director’s Decision.

Ground (4)

77.Counsel complains that the Board was unreasonable to reject the applicants’ evidence concerning the personal experience of themselves and their family that was consistent with and supported by the COI submitted by the applicants themselves. Counsel further asks:

“98. Given the nation-wide discrimination and persecution of Shia Muslims, and on all relevant evidence before the Board, there was no basis at all for the Board to reach his conclusion that state protection would be available to the Applicants and that it would not be unduly harsh for them to relocate to somewhere else in Pakistan.”

78.The Board had considered the COI showing that Shias were targets of Muslims in Pakistan [60]; that on the other hand, there is COI which indicate the general situation of Shias in Pakistan [61]; that the Petitioners (applicants) asserted that police in Pakistan are corrupt as supported by COI [62]; that on the other hand, there is COI to show that state protection is available. The Board then came to its conclusion at paragraph 64 of the Board’s Decision:

“Thus state protection is available upon their return to Pakistan.”

79.This is the finding of the fact by the Board, with reasons given in the Board’s Decision. This Court finds no reason to interfere with such decisions. This ground fails.

Ground (5)

80.Counsel submits that the Board’s Decision is liable to be quashed because it failed to consider and/or properly assess all grounds of the applicants’ non-refoulement claims and the grounds are:

(1)  gender-based and/or gender-related violence; and

(2)  the possibility of being called as a witness for prosecution against a co-accused.

81.The Board did not accept the wife’s evidence of her being inflicted with violence sexually by the police officers inside the Bamanwala Police Station, treating her complaints as bare allegations because she had refused to give evidence on the incidents [45] and [46].  Even if issue (1), which relates to the wife, sustains as discussed under ground (1) above, the wife failed to establish that she would have real risk if she returns to Pakistan as state protection will be available to her and internal relocation is the viable alternative.

82.The possibility of being called as a witness for prosecution against a co-accused does not form any part of the applicable risks in  support of the applicant’s claims.

83.This ground fails.

Ground (6)

84.Counsel submits that the Board erred in failing to apply, or properly apply, the relevant principles concerning whether or not international protection should be withdrawn from the husband because he had committed a serious non-political crime.

85.At paragraph 55 of the Board’s Decision, the Board found, “Further he [the husband] was in fact a fugitive who fled to Hong Kong in order to avoid arrest.”

86.It is not in dispute that there was a First Information Report (“FIR”) filed against the husband for involving in killing Abdul. As the husband feared of being arrested, he left Pakistan for Hong Kong.

87.Counsel quotes an example that an authoritarian regime targeting a political dissident can easily commence criminal prosecution against a person under a very serious offence. In such a case, the fact that an arrest has been issued by a court of law is neither here nor there.

88.However, counsel has not been able to show that Pakistan is such an authoritarian regime and the FIR was issued under such circumstances as he said in the example.

89.This ground  fails.

Ground (7)

90.Counsel argues that the Board erred in failing to separately assess the non-refoulement claims of the children, relying on the case of Fabio Arlyn Timogan & Others v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office & Another [2020] CACV 971, in particular,

“34….

(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child….”

91.In paragraph 120 of the Grounds attached to Form 86, counsel submits:

“…the Board was under a duty to sufficiently inquire into the respective personal circumstances of A3, A4 and A5. For example, at the very least, the Board should have considered, given the religious background of their parents, whether or not each of A3, A4 and A5 would face a real risk of harm independently of those claimed by their parents and specific to each children, and also whether or not internal relocation would be a viable option for them, given their circumstances.”

92.In paragraph 124, counsel submits that the Board did not even showed [sic] the consideration in respect of A3, A4 and A5 similar to that in Fabio. As such, it is submitted that their case in this judicial review application is stronger than that of the children (in Fabio’s case).

93.It is important that when cases are referred to the Court for consideration, counsel must set out clearly the circumstances of the case cited and the main issues under discussion. Otherwise, the reference will be misleading.

94.The questions for the discussion of this ground will on:

(1)  whether this case bears the same main issue with Fabio’s case;

(2)  whether the Board has the duty under the law to make investigation into the facts of the case for minors even if they were legally represented before the Board?

(3)  is the case of Fabio applicable to this case?

95.The Court of Appeal in Fabio’s case was concerned that the children in the case were not legally represented, therefore the child-specific claims, which should be separately considered by the Board, were not brought to the Board’s attention for its consideration. The following paragraphs of the Court of Appeal’s judgment will illustrate this issue:

“37. In the present case, though a barrister was assigned by the Duty Lawyer Scheme to represent the mother as well as the two children in the presentation of their case to the Director, they had no legal representation at the hearing before the Board on 18 May 2017.

43. On a fair reading of the Board’s Decision, notwithstanding that the Adjudicator did not discuss the case of the children under a separate section, it is clear that she had given due consideration to their claims put forward before the Board. The Adjudicator did not reject their claims simply because she rejected the mother’s claim.

44. It should be noted that in terms of the children’s case on risk of harm as presented in their respective Non-refoulement Claim Form with the assistance of their lawyer before the Director was based on the alleged threat from the first husband of their mother and nothing else.

45. This brings us to the consideration of the lack of legal representation for the children before the Board. In Hong Kong, all non-refoulement claimants have access to legal assistance by the Duty Lawyer Scheme at the first tier assessment of their claims by the Director. Though it has been well settled in Hong Kong that the lack of legal representation for an adult claimant at the second-tier Board hearing is not, per se, a ground for holding that the proceedings were unfair, different considerations apply to cases involving children claimants.

46. Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.

49.  When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director.”

96.The Court of Appeal, in a more recent decision, has further elaborate this issue. In Siti Naisah Tasya Stephanie, a minor, by her next friend and mother, Siti Naisah v Torture Claims Appeal Board/Non-refoulement Petition Office [2023] HKCA 336, Hon Chu VP and Barma JA, it was held:

“19. As regard the proper approach to a non-refoulement claim of a minor, the relevant principles have been set out in Fabio, supra; and Re Jasvir Singh & others [2021] HKCA 53. …

(1) Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.

(2) When dealing with an application by a non-legally represented minor for leave to apply for judicial review … because of the absence of legal representation.

(3) If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters indicating there may be minor-specific grounds which had not been adequately advanced before the Board due to lack of legal representation, the court should …” (emphasis added)

97.To suggest that even if the minors were legally represented before the Board, the Board still has a duty to make investigation into the child-specific claims is tantamount to suggesting that the Board has a duty of investigation. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were) has rejected this suggestion:

“26. In the court below, the screening process has been described as “inquisitorial” in nature (paragraph 30 of the judgment).  This is not a description used in Prabakar….

27. In my view, the description is at best a shorthand for the high standards of fairness required of the screening process.  It is prone to create unnecessary confusion and arguments.  Its use in the present context should be avoided.”

98.The Court of Appeal further discussed the situation where the applicants were legally represented before the Board and it held:

“52. …the applicant is and was throughout legally represented. If they had found it advisable to do so, the applicant and his legal representatives could have obtained for themselves without much difficulty a great deal of information which they now say the Director or the adjudicator should have obtained for them. … If the applicant and his legal representatives have not seen fit to obtain and supply such information to the adjudicator, I do not believe that high standards of fairness would require the adjudicator to direct the Director to obtain such information for the applicant. …’

99.It is therefore clear that where the applicants were legally represented before the Board, the burden will be on the legal representative and the applicants to produce evidence and proofs to the Board for consideration. Where the children were legally represented before the Board and the legal representative did not put forth any child-specific claims for the Board, the Board would be quite justified to assume that there were no child-specific claims for its consideration. It will be unreasonable to require the Board to make wild guesses on any other possible child-specific claims under these circumstances as suggested by counsel. To do so will be asking the Board to fill in any shortcomings of the legal representative. The Court of Appeal in Re: RS [2013] CACV 206/2012, unrep. Hon Lam, Barma JJA and Macrae J. (as they then were) has clearly rejected this burden on the Board:

“57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

100.Mr Daly was the legal representative of the applicants, including the children before the Board. In fact, he also represented the applicants before the immigration officer for the screening process. He was therefore very familiar with the facts of the case himself. Mr Daly has not put in his affirmation to say that he failed to advance the child-specific claims to the Board for consideration. Nor is there any complaint from his clients on his negligence.

101.The Board was therefore entitled to deal with the applicants’ case on the evidence and submissions by Mr Daly acting on their behalf.

102.To answer the above questions: (1) is no because in this case the applicants were legally represented; (2) is no; and (3) is no.

103.This ground also fails.

CONCLUSION

104.Having considered the grounds in support of the application, either individually or accumulatively, I find that they do not form any valid reason to challenge the Board’s Decision. The applicants therefore have failed to establish that their intended application for judicial review of the Board’s Decision has a realistic prospect of success[5]. Accordingly, I decline the applicants’ leave application.

DISPOSITION

105.The Court shall make an Order in terms as follows:

(1)  the applicants’ leave application be dismissed;

(2)  the anonymity and sealing order made at the commencement of these proceedings be lifted and set aside;

(3)  costs of the action be in accordance with paragraph 77, supra, this is to say, the costs of the applicants should be taxed in accordance with the Legal Aid Regulations, disallowing any costs incurred for the COI which are deemed irrelevant to the proceedings before the Board and/or before this Court;

(4)  the non-legal representation of the youngest son, as required under Order 80, rule 2 of the RHC, is treated as an irregularity only and will not nullify the present proceedings under Order 2 rule 1 of the RHC[6].

Dated the 8^th day of June 2023

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