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

HCAL 331/2019

[2023] HKCFI 2407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 331 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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the following decisions:

(1)   the Director of Immigration’s Decisions respectively dated 27 February 2015 and 2 February 2017 (“the Director’s First Decision and the Director’s Second Decision”); and

(2)   the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) dismissing the applicant’s appeal against the Director’s Second Decision.

2.The Director’s First Decision rejected the applicant’s non-refoulement claim on the Torture risk, the BOR 3 risk and the Persecution risk, whereas the Director’s Second Decision rejected his non-refoulement claim on the BOR 2 risk.

3.The applicant had appealed the Director’s First Decision to the Board.  He was absent at the Board’s hearing despite the statutory notice having been served on him.  The Board, for the reason that the applicant had not given oral evidence, was unable to determine the applicant’s credibility and unable to estimate what risks, if any, he faced if he was refouled to Pakistan or to decide whether he was entitled to non-refoulement under the provisions.  By the Board’s First Decision, the Board dismissed his appeal.  The applicant has not sought leave for judicial review of the Board’s First Decision.

4.The applicant’s application for leave for judicial review of the Director’s Decisions fails in limine and must be dismissed as the applicant had appealed the Director’s Decisions to the Board.  Re: Moshsin Ali [2018] HKCA 549^[1]

5.Since the applicant had not applied for leave for judicial review of the Board’s First Decision, the Court will only consider his leave application for judicial review of the Board’s Second Decision.

6.The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed to be heard on 13 September 2023.  However, he was absent without notice to the Court.  His application will be dealt with on paper.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

8.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 1 November 2009 and was arrested by the police on 2 November 2009.  On 7 November 2009, he raised a torture claim.  Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim and was assessed on all applicable grounds.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Iqbal Ahmad and his uncle’s associates, namely, Nazim Shaukat and police Jalad as he refused to sell his uncle a piece of land. 

9.According to the applicant, the land dispute with Iqbal started in April 2009 when Iqbal approached the applicant’s father for the sale of the disputed land.  The applicant’s father refused as he intended to transfer the land to the applicant.  Iqbal threatened the applicant’s father.  A week later, Iqbal invited the applicant to discuss the disputed land in a tea house, during which he also threatened the applicant.  In addition, in the end of April 2009, in a negotiation, Iqbal again threatened the applicant’s father.  

10.In May 2009, the applicant moved to live with his friend in Talagang. However, a few days later, the unknown men he met in the tea house approached his friend’s house and assaulted him.  They also kidnapped the applicant to an unknown place.  He was then taken to a special room in which Iqbal, Shaukat and Jalad were all present.  They demanded the applicant to sell the disputed land.  Met with the applicant’s refusal, they assaulted the applicant.  They threatened to kill the applicant if he failed to transfer the disputed land within a week. 

11.Pretending to comply with their request, the applicant was released.  He received medical treatments.  Afterwards, he escaped to Muzaferabad and Rawalpindi.  Eventually, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraphs 5 to 22 of the Director’s First Decision.

The Director’s Decisions

12.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.  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

d.  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”).

13.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk.  In elaboration, the Director found that (i) based on the applicant’s provided facts, the injuries sustained failed to attain a minimum level of severity [30]-[47]; (ii) there was no official involvement [48]-[59]; (iii) the risk of subject to ill-treatment upon his return was low [60]-[63]; (iv) state protection would be available to him [64]-[68]; and (v) internal relocation was a viable option [69]-[78].

14.In the Director’s Second Decision, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk.

The Board’s Decisions

15.The applicant first appealed the Director’s First Decision to the Board.  However, he was absent from the oral hearing scheduled on 19 November 2015.  Having satisfied that the statutory requirements under subsection (1) of section 15 of the Schedule 1A to the Immigration Ordinance and paragraph 11.12 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme were met, the Board proceeded to consider his appeal on paper in his absence [4]-[5]. 

16.The Board noted that the applicant’s claim could not be disposed of by way of a paper review but required an oral hearing [6].  Since the applicant was absent, the Board was unable to determine the credibility of his claim [7].  As a result, the Board opined that it was unable to estimate what risks, if any, the applicant would face upon refoulement [8]. 

17.Therefore, on 3 May 2016, the Board, by its First Decision, rejected his claim and dismissed his appeal against the Director’s First Decision. 

18.Later, the applicant appealed the Director’s Second Decision to the Board.  On 3 December 2018, the Board conducted an oral hearing for his appeal.  For the purpose of this appeal, the Board noted that it had no power to reopen the appeal against the Director’s First Decision as that was determined in the applicant’s absence.  As a result, it proceeded the appeal only on the claim on BOR 2 risk [20].  But the Board had asked the applicant questions on the facts relating to the Torture risk, the BOR 3 risk and the Persecution risk, the issues in the Director’s First Decision.

19.The Board considered the written evidence submitted in support of the applicant’s claim on Torture risk, Persecution risk and BOR 3 risk [23].  It recapped the applicant’s claim [24]-[28].  After considering the evidence and the applicant’s oral testimonies [30]-[36], the Board found that there were flaws in the applicant’s claim [39].  In particular, the Board found that the applicant did not have the legal title over the disputed land [40]; that it was no use for Iqbal to push the applicant who did not have the title [40]-[41]; that the evidence about the kidnap and torture was not acceptable [42]; that Iqbal did not possess the intention to kill the applicant [44]; and that the applicant could avoid the risk of harm by going to Karachi [45].

20.For the above reasons, on 1 February 2019, the Board by the Board’s Second Decision rejected the applicant’s claim on BOR 2 risk and dismissed his appeal against the Director’s Second Decision. 

Application for leave to apply for judicial review of the Board’s Decision

21.The applicant has filed Form 86 dated 4 February 2019 for leave to apply for judicial review of the Board’s Second Decision.

22.In his grounds in support of his application, the applicant said he considered that the Board’s Second Decision was unreasonable as the Board had not considered all matters raised in his claim.  He had also set out his grounds attached to Form 86.  The following are his reasons.

(1)   The immigration officer [and the adjudicator] had never visited Pakistan and they did not know the real situation there.

(2)   Many other asylum seekers were killed after they were sent back to their countries by the Director.

(3)   He has a genuine case for BOR 3 risk as he faces a genuine and substantial risk of being subject to mistreatment.

(4)   BOR 3 right is an absolute right.

DISCUSSION

23.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

25.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.”

26.The Board was entitled to consider the matters in the Board’s First Decision as the applicant’s appeal against the Director’s Second Decision is closely related to those facts relating to the Torture risk, the BOR 3 risk and the Persecution risk.  The Board was simply unable to deal with the applicant’s appeal against the Director’s Second Decision without taking into consideration of the primary facts in the Director’s First Decision.

27.The Board’s First Decision is tainted with error in law and Wednesbury unreasonableness.  I shall state my reasons below.

The Board’s reasons in the Board’s First Decision

28.The reasons given by the Board in the Board’s First Decision for dismissing the applicant’s appeal against the Director’s First Decision are set out in paragraphs 7, 8 and 9 of the Board’s First Decision, viz.:

“7. The Appellant did not appear at the hearing. He has given no evidence to support what he has written in his Torture Claim Form and Supplementary Claim Form, and I am unable therefore to decide on the credibility of his case.

8. It follows that I am unable to estimate what risks, if any, he faces if he is refouled to Pakistan or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above.

9. His claims therefore must be dismissed.”

Power of the Board under the Ordinance

29.The power of the Board under the Ordinance can be found in the following statutory provisions:

“15. Claimant’s absence from hearing

(1) If a claimant does not attend a hearing in person, irrespective of whether the claimant is represented at the hearing by a legal representative, the Appeal Board may hear the appeal in the absence of the claimant.

18. Evidence considered by Appeal Board in an appeal under section 37ZR

(1) In an appeal under section 37ZR (decisions of an immigration officer on re-opening a torture claim; rejecting a torture claim or revocation decision), the Appeal Board has the power to review the merits of the case, and accordingly it may consider—

(a) the same evidence that was before an immigration officer; and

(b) if subsection (2) applies, evidence that was not before an immigration officer.

23. Appeal Board’s decision

(1) On an appeal against a decision referred to in section 37ZR, the Appeal Board may confirm or reverse the decision.

(3) The Appeal Board must give its decision with reasons in writing.

(4) The Appeal Board’s decision is final.”

The nature of hearing before the Board

30.The finding of the facts by the Director and the Board is not an adversarial process, but rather an investigatory process whereby the duty to ascertain and evaluate the facts is shared between the applicant and the examiner.  The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004 held:

“21. … … The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see paras 195 and 196 of the Handbook.

43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. …

52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

54. …  Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim.  It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned.”

The Board’s duty is to find the primary fact of the claim

31.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), 21 November 2012, held:

“30. …In deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact.  To take the present case as an example, one needs to decide whether the applicant’s story about what happened to him and his friend, C, back in Pakistan was true or not.  In relation to the primary facts comprising the applicant’s story, the Director and adjudicator had to make findings of fact.  The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).

31. So far as the standard of proof in relation to the primary facts is concerned, one applies the civil standard, that is, the balance of probabilities: Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589.”

The finding of the Board without evidential basis is an error in law

32.The Court of Appeal in Ahmed Nawaz v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2019] HKCA 417, Hon Lam VP (as he then was) and Barma JA, 3 April 2019 held:

“23. With respect, we cannot find any evidential basis for the Board to make the finding that the retraction from an agreed settlement could have been foreseen by the applicant in mid-2011 when he withdrew his claim. Nor can we accept the judge’s reasoning at paragraph 36.

31. For these reasons, we allowed the appeal and granted leave for the applicant to apply for leave for judicial review.”

The Board erred in simply rejecting the applicant’s claim without finding the fact

33.The Court of Appeal in MS v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 979, Hon Barma, Au and G Lam JJA, 8 July 2021, held:

“24. …it seems to us reasonably arguable that the Board erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination, …the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].”

34.It is therefore apparent that despite the absence of the applicant before the Board, the Board should, nevertheless, proceed to assess the materials and evidence before it and make a finding of the primary fact in relation to the facts of the claim, state protection and internal relocation, taking into consideration of the applicant’s conduct under section 37ZD of the Ordinance in relation to the credibility of the applicant.  In terms of the factual basis of the applicant’s claim, some issues on which the Board finds incredible may not necessarily lead to wholesale rejection of the facts of the claim.  If the Board finds against the applicant’s credibility on the facts of the claim, it should give reasons that such credibility issues undermine the factual basis of the applicant’s claim.

The Board’s finding in the Board’s First Decision

35.The Board’s decisions in the Board’s First Decision have no factual basis because it failed to find the primary fact of the claim.  The fact that the applicant has the burden of proof for his claim and that he had failed to give evidence to the Board by his absence only show that the Board was unable to clarify some factual issues in his claim.  It is up to the Board to explain in the Board’s First Decision why the credibility in relation to those factual issues would undermine the factual basis of the applicant’s claim, which the Board has failed to do.

36.For the reasons above, the Board’s First Decision is tainted with error in law and Wednesbury unreasonableness.

The defects in the Board’s First Decision had been overcome by the Board’s hearing for the appeal against the Director’s Second Decision

37.It seems obvious that when the Board considered the appeal against the Director’s Second Decision, the adjudicator considered that he had to make a finding on the primary fact, which he had not done in the Board’s First Decision, for the assessment of the Director’s Second Decision.  This might be the reason for the Board to convene a hearing, in which he had made extensive enquiries on the facts of the claim.

38.In the hearing, the Board had conducted enquiries into the facts of the claim relating to all applicable risks and had made findings of the fact against the applicant as shown in paragraph 19, supra.  The Board was entitled to form its views as it had done.  The findings have therefore overcome the defects as found in the Board’s First Decision, based upon which, the Board had rightly made its decisions in the Board’s Second Decision.

39.Those grounds in paragraph 22 do not assist the applicant.  It is not necessary for the immigration officer or the adjudicator to go to Pakistan to understand the situation there.  They are entitled to rely on the country of origin information.  The other grounds are either his personal opinions without any evidence in support or stating the law, which do not support his application.

40.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Second Decision.

CONCLUSION

41.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision.  Accordingly, I dismiss his application.

Dated the 27^th day of September 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