Shafqat, Ali v. Betty Kwan

HCAL 74/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 74 OF 2012

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J U D G M E N T

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1.This is an application by Mr Ali Shafqat (“Applicant”) for judicial review of 2 decisions made by Ms Betty Kwan (“Adjudicator”), in her determination of the Applicant’s petition to the Chief Executive (“Petition”) for protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”). The first is her decision, as notified to the Applicant on about 17 March 2012, not to afford the Applicant an oral hearing in relation to his Petition and not to give notice of such decision to the Applicant (“Oral Hearing Decisions”). The second is her decision on 15 March 2012 to refuse the Applicant’s claim for protection under the Convention (“Substantive Decision”).

2.The Applicant claims that the Oral Hearing Decisions were procedurally unfair, made without giving adequate reasons, and unlawful.  The Applicant’s claims initially included a systematic challenge of the procedure adopted by adjudicators, to dispose of petitions summarily without an oral hearing and without giving notice to the petitioners.  This systematic challenge was not pursued, as counsel for the Applicant confirmed at the hearing that the Applicant will abide by the court’s determination in ST v Betty Kwan and the Secretary for Security, HCAL 60/2012, which was decided in favor of the Secretary by Au J on 8 March 2013, and is currently the subject of appeal to the Court of Appeal.  In these proceedings, the Applicant only challenges the Oral Hearing Decisions on the basis that in the particular circumstances of his case, the Adjudicator’s failure to afford him an oral hearing was procedurally unfair.

3.In relation to the Substantive Decision, the Applicant claims that it was unlawful, in that the Adjudicator had failed to inquire into the merits of the Applicant’s claim, and had further misdirected herself in law as to the requirements of proof, the risk of prohibited conduct, the conduct of non-state actors, the protection to be provided by the state of return against such conduct, and the definition and meaning of “acquiescence” in the Convention.  The Applicant further claims that the Adjudicator had failed to take into account the relevant Country of Origin Information (“CIO”), and had wrongly taken into account information available to the Director of Immigration (“Director”), and his determination in the first tier screening of the Petition.

The Applicant’s history and claims

4.The Applicant is a male Pakistan national.  He and his family lived in a village in Khura Khail, Attock in the Punjab province. He was born on 15 March 1979, educated to class 10 secondary level and obtained an electrician’s diploma in 1997.  He worked as an electrician until 2000, when he began employment as a driver for one Malik Amin Aslam (“Malik”).  Malik was a local councillor, and the Applicant’s father and family are supporters of Malik’s party, the opposition Pakistan Muslim League Q (“PML-Q”).  The local member of the Pakistan National Assembly was one Ishfaq Khan (“Ishfaq”), a member of the ruling Pakistan People’s Party (“PPP”). 

5.Ishfaq lived in the same village as the Applicant, and the Applicant claims that Ishfaq and his supporters caused problems for the Applicant’s family because they were Malik supporters.  In 2006, Ishfaq asked the Applicant to leave Malik’s employment and to work for him instead.  The Applicant refused.  The Applicant claims that in late 2006, Ishfaq made or caused a false report to be made to the local police, accusing the Applicant’s brother, Murad Ali (“Ali”), of murder.  Ali was arrested, charged with the murder of one Faiz Alam (“Alam”), and remanded in custody.  The police opposed bail, and Ali was remanded for 3 months until he was granted bail by the court.  The charges against Ali were eventually dropped in mid-2007 for lack of evidence.

6.In 2007, further attempts were made by Ishfaq and his supporters to persuade the Applicant to leave Malik’s service to join Ishfaq.  When the Applicant refused, he was beaten up by several local men who had worked for Ishfaq.  He was made unconscious and was confined to bed for 10 days as a result of the assault.  This took place in August or September 2007.

7.The Applicant claims that 8 months after August or September 2007, the same assailants assaulted him again outside his home.  The assailants were chased away by neighbors, but they threatened to return and to kill the Applicant.  A shot was fired in the melee.

8.The Applicant had reported the above incidents to Malik, but not to the local police, as he believed the local police to be corrupt and was sympathetic to Ishfaq.  The Applicant fled to Islambad, where he stayed for 2 months.  He then found out that Ishfaq had learned of his whereabouts, so the Applicant fled to China, and then entered Hong Kong in December 2007 without permission.  He claimed the protection of the UNHCR as a refugee in January 2008, but his claim was rejected on 1 August 2008.

The Convention Claim and Petition

9.On 6 March 2009, the Applicant made a claim for protection under Article 3 of the Convention (“Convention Claim”).  He claimed that his life would be in danger from a local political leader and opponent of Malik, or from his associates, if he was returned to Pakistan.  He further claimed that Ishfaq had power over the police station.

10.In the Questionnaire which the Applicant completed for submission to the Director in support of his Convention Claim, the Applicant referred to his having been approached by Ishfaq and his men, who had asked him not to work for Malik but to work for Ishfaq, to his having been assaulted twice, his injuries sustained as a result, and his being shot at by assailants in September or October 2007.  The Applicant referred to Ishfaq falsely telling the police that Ali was Alam’s murderer.  The Applicant stated that he was afraid that Ishfaq’s men would kill him if he should be returned to his country of origin.  He also stated that he had not sought assistance from nor reported his fears to the local authorities, because the police would not listen to him, as he had seen the police go to Ishfaq’s home many times, and they would be on Ishfaq’s side.

11.The Applicant was interviewed by the Director on 3 December 2010.  His next interview was on 25 January 2011, but it was not completed as the Applicant was unwell.  On 3 March 2011, the Applicant attended an interview but was not well enough to answer any questions.  Thereafter, several interviews were scheduled but they did not take place as the Applicant had sustained injuries in an accident.  He produced medical certificates evidencing his various medical examinations and his having been granted sick leave.

12.Eventually, after some delay in the progress of the matter, the Director proceeded to determine the Applicant’s claim, on the information available to the Director and without waiting for further interviews to be scheduled.  By a written determination dated 13 February 2012, the Director rejected the Applicant’s Convention Claim.

13.On 21 February 2012, the Applicant filed his Petition to the Chief Executive against the refusal of his Convention Claim.  The Petition was completed with the aid of a lawyer from the Duty Lawyer Service.  The Applicant stated, in his Grounds of Petition, that the Director had erred in failing or refusing to give him every reasonable opportunity to establish his torture claim; that the Director made his determination before the screening interview process was completed; did not have due regard to the fact that the Applicant’s case might be complicated; and did not have due regard to the fact that the Applicant had been injured in a traffic accident, had been receiving ongoing medical treatment and was unable to attend some of the scheduled interviews.  The Petition states that there was procedural and/or substantive unfairness in the decision-making process, that the determination of the Director is illegal in that he had misdirected himself when applying the Prabakar principles, and that the determination of the Director is unreasonable having regard to the circumstances.  In the Petition, the Applicant asked the Adjudicator to direct the Director to reconsider his torture claim, or to consider it afresh.

14.In response to the questions in section 4 of the Petition Form, the Applicant indicated that he would not be calling a witness, but (contradicting that answer) that his witness would require an interpreter.

The Decision of the Adjudicator

15.On 16 March 2012, the Applicant was notified of the Substantive Decision, that the Adjudicator had decided not to hold an oral hearing, and that the Applicant’s Petition was dismissed.  In dismissing his Convention Claim, the Adjudicator first considered whether Ishfaq could be regarded as “a public official or a person acting in an official capacity” within the meaning of Article 1 of the Convention.  She referred to the fact that the Applicant had doubts about Ishfaq’s status as a member of the National Assembly.  The Adjudicator then considered whether, assuming that Ishfaq was a member of the National Assembly, in having been assaulted twice by Ishfaq’s henchmen, pain or suffering had been inflicted on the Applicant by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Adjudicator formed the view that “the injuries sustained by (the Applicant) fall woefully short of the severe physical and mental suffering required” to come within the definition of “torture”.  She also considered that even if Ishfaq had ordered his henchmen to beat up the Applicant on 2 occasions to make the Applicant drive for Ishfaq, any ill-treatment of the Applicant as a result of the assault incidents had not been inflicted for a purpose within the definition of Article 1 of the Convention.

16.In paragraphs 25 to 27 of the Adjudicator’s Decision dated 15 March 2012 (“Decision”), the Adjudicator states:

“25. The whole claim rests on a case history based solely on information provided by the (Applicant), and so it does not prove the veracity of the allegations made, notably with regard to the allegations of ill-treatment by (Ishfaq). There is no causal link to show that Ishfaq had ill treated the (Applicant) or other members of his family, or caused them to be ill-treated. There is no document showing that (Ishfaq) had supplied the information leading to the false charge of murder. There is no objective evidence of any kind in support of the allegation that (Ishfaq) had framed (Ali) for (Alam’s) murder.

26. No other state authority was implicated in the case of the (Applicant). He did not make a report to the police on each of the occasions he had been beaten up by (Ishfaq’s) henchmen. There is absolutely nothing to show that the police even knew that he had been beaten up. No evidence was adduced to show that (Ishfaq) had exerted pressure on, or influenced the police so that they would ignore the (Applicant’s) complaint.

27. No evidence has been adduced of, and there are no grounds for saying that there is a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan.  In accordance with paragraph 8 (a) of General Comment No 1, all relevant circumstances must be considered, including whether there is a consistent pattern of gross, flagrant or mass violations of human rights in Pakistan.  But whatever the general human rights situation there, the personal situation of the (Applicant) must still be assessed as to the risk he would face if he is refouled to his home country of Pakistan.”

17.The Adjudicator then stated her conclusion in paragraphs 28 and 29 of the Decision, as follows:

“28. Taking into consideration all the information available, I find that the (Applicant) has failed to provide sufficient evidence to demonstrate that he would face a real and foreseeable risk of being subjected to torture if refouled to his country of origin. Article 3 refers to “substantial grounds” for believing that a person would be in danger of being subjected to torture. The Committee’s General Comment on Article 3 places the burden on the (Applicant) to establish that he would be in danger of being tortured. The grounds on which a claim is established must be substantial and must “go beyond mere theory or suspicion”, as confirmed by the Committee in numerous decisions. Consideration of the relevant factors have led to the conclusion that there are no substantial grounds for believing that the (Applicant) would be in danger of being subject to torture in the CAT sense. In particular, his credibility is suspect and his claim inconsistent and implausible for the reasons given above. There are no credible reasons to consider that he fits the personal profile of someone who would be of interest to the Pakistan authorities or be particularly vulnerable if returned to his home country.

29. In all the circumstances, I find that there are no grounds for believing that the (Applicant) will be at risk of being subjected to torture in the CAT sense if he is refouled.  His petition is dismissed.”

18.As Lam J (as he then was) had summarized in paragraph 87 of his judgment at first instance in TK v Michael C Jenkins and Director of Immigration HCAL 126/2010, 21 October 2011, in the context of a judicial review of a decision of an adjudicator, the crucial issues are: whether the adjudicator committed any error of law in his interpretation of the CAT; whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and whether the substantive decision satisfied the enhanced Wednesbury test. 

19.In summary, the Applicant claims in these judicial review proceedings that, applying the rule of anxious scrutiny applicable to a judicial review (Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, at paragraph 45), the Adjudicator had failed to take into account all relevant facts when she dismissed the Applicant’s claim that there were substantial grounds for believing that he would be in danger of being subjected to torture if returned to his country of origin.  It is claimed that the Adjudicator should have conducted an oral hearing to consider relevant matters and also to enable the Applicant to present his case.  Further, it is claimed that the Adjudicator had applied the wrong standards of proof in rejecting the claims made by the Applicant.

Applicable legal principles

20.Article 3 of the Convention states that no State Party shall expel, return or extradite a person to another State “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  For determining whether there are such grounds, Article 3 requires the competent authority to take into account “all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”. 

21.In Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal held that a determination under the Convention was of momentous importance to the individual concerned, involving life and limb and his fundamental right not to be subjected to torture, such that high standards of fairness must be demanded. The courts would on judicial review subject the determination of the Secretary for Security to rigorous examination to ensure that such standards had been met.

22.In TK v Michael C Jenkins and Director of Immigration CACV 286/2011, the Court of Appeal held that the burden of proof remains rested on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture.  This however is subject to the requirement that the Director and the adjudicator must observe “high standards of fairness” in their determination of a torture claim, as held in Prabakar.  The torture claimant must be given “every reasonable opportunity to establish his claim” (paragraph 51 of the Court of Final Appeal judgment in Prabakar).

23.In TK, Cheung CJHC pointed out that the requisite high standard of fairness may require the Director in the first screening process to probe into an answer given or an omission made by the torture claimant in his presentation of information and materials to the Director, but there may be no duty to keep probing or inquiring where the objective circumstances made it reasonably clear that the claimant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention.  High standards of fairness do not entitle the torture claimant, having stated a claim, to “simply sit back and require the Director to disprove it”, the exercise of determining whether a claim made under Article 3 (1) of the Convention being one of “joint endeavor” (CH v Director of Immigration [2011] 3 HKLRD 101, paragraph 47).

24.In the determination of whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture if he were to be returned, the standard of proof required for the proof of the risk of torture is “more than a mere possibility”, without the need to show that it is “highly likely” that the claimant would be subjected to torture.

25.In relation to the proof of primary facts relevant to the torture claimant’s claims, eg as to his personal history of what had happened to him to show that he was at risk, the Chief Judge explained in paragraph 31 of his judgment in TK that the civil standard of a balance of probabilities is applicable.  On behalf of the Applicant in this case, Mr Kat has referred to the decision of the English Court of Appeal in Karanakaran v Secretary of State [2011] 3 All ER 449, where the court rejected the civil standards of proof when considering evidence of past or present facts before going on to make the necessary assessments of future outcomes. 

26.In Karanakaran, the English Court of Appeal first considered Kaja v Secretary [1995] Imm AR 1, IAT and Horvarth v Secretary [2000] INLR 17 (CA), and found that where compliance with an international convention is in issue, the decision-maker is not constrained by the rules of evidence that have been adopted in civil litigation, and is bound to take into account all material considerations when making its assessment about the future.  The decision-maker must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (p 469 h of the judgment of Brooke LJ).  Thus, when considering whether there is a serious possibility of persecution for a convention reason if an asylum seeker is returned, it would be wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur (p 470 a of the judgment).

27.On behalf of the Director who has been joined as the Interested Party in this case, it has been submitted that this court is bound by the decision of the Court of Appeal in TK, in relation to the civil standard of proof on a balance of probabilities, so far as the proof of the relevant primary facts is concerned.

The Applicant’s right to an oral hearing in this case

28.It has been emphasized that a torture claimant does not enjoy an absolute right to an oral hearing (ST v Betty Kwan and The Secretary For Security HCAL 60/2012 8 March 2013, R v Army Board of the Defence Council ex parte Anderson [1992] QB 169).  As the Court of Final Appeal highlighted in Prabakar, there is no universal set of standards of procedural fairness which are applicable to all situations.  The appropriate standards depend on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter.

29.The Applicant was assisted by lawyers from the Duty Lawyer Scheme when he completed the questionnaire for the Director and when he filed the Petition.  I accept that, as held in TK, the Applicant is to be expected to conduct his own investigation and to obtain and present the information and materials he requires to prove his case.  If he needs assistance to obtain any information or materials which is required and not available to him, he may seek the Director or the Adjudicator to obtain such information for him.  Without doubt, the Applicant cannot simply sit back and required the Director to do all the probing and to disprove the torture claim.

30.On the face of the Questionnaire and the Grounds of Petition, I do not consider that it is readily apparent (as Mr Kat suggests) that something had clearly gone amiss, or that a point has obviously been overlooked or missed out by the Applicant in relation to his Convention Claim, such as to require the Director or the Adjudicator to probe further into the answers given by the Applicant or his omission, and to require an oral hearing to take place for the obvious reason of dealing with what has been overlooked.

31.Nevertheless, whether the Applicant should be given an oral hearing as a matter of procedural fairness depends on the context and the facts relevant to the Applicant’s claims.  It is apparent from the Adjudicator’s Decision that she had rejected the Applicant’s Petition on the basis that she did not believe the Applicant’s claims: with regard to ill-treatment (her view was that the injuries sustained by the Applicant fell woefully short of the severe physical and mental suffering required), with regard to Ali having been framed by Ishfaq for Alam’s murder, with regard to Ishfaq’s pressure or influence on the police, and generally, the Applicant’s belief that he was at risk of being subjected to torture if he should be refouled.  Notwithstanding the fact that, as the Adjudicator made it clear in her Decision, she had made assumptions in favor of the Applicant: to the effect that Ishfaq was a member of the National Assembly, that the Applicant had indeed been assaulted twice by Ishfaq’s henchmen in the manner he alleged, and that Ishfaq was to be regarded as a public official, it becomes clear from a reading of paragraphs 24 to 27 of the Decision that the credibility of the Applicant is central to her Decision and that the view taken on the Applicant’s credibility permeates the reasoning for the Decision.  The Adjudicator considered that the Applicant’s whole claim was “based solely on information provided by the (Applicant)”, such that it does not prove the veracity of his allegations.  She found that there was no document to show that Ishfaq had supplied the information leading to the charge of murder, that there was “no objective evidence of any kind in support” of the allegation that Ishfaq had framed Ali for murder, and nothing to show that the police had knowledge of the Applicant having been beaten up, or that Ishfaq had exerted pressure on or influenced the police so that they would ignore the Applicant’s complaint.

32.The Adjudicator’s determination having been founded on her rejection of the Applicant’s claims as unsubstantiated and hence unbelievable, the high standards of fairness required by Prabakar call for the Adjudicator giving the Applicant an opportunity at an oral hearing to deal with these matters of concern to the Adjudicator, before she decides the Petition. 

33.As Lord Mustill explained in his judgment in R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 (HL) at 560:

“The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this has to be taken into account in all its respects. … Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favorable result; or after it is taken, with a view to procuring its modification; or both. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”

34.The Adjudicator’s task was to form a view as to the credibility and state of mind of the Applicant.  She was to make a decision on the Petition independently of the assessment made by the Director on the information presented by the Applicant to the Director.  The Adjudicator had concerns as to the matters to which she had referred in paragraphs 22 and 24 to 26 of her Decision, and proceeded to make an assessment of the Applicant’s credibility on these matters without giving him the opportunity at an oral hearing to explain why he had not reported the assaults to the police, why he considered the police to be on Ishfaq’s side, and to address the Adjudicator on her concerns as to the Applicant’s allegations of ill-treatment and his fear of being subjected to torture.  These are all relevant to the determination of the Petition and are matters to be considered by the Adjudicator.  Applying the anxious scrutiny and subjecting the Decision to the rigorous examination as the court should do at this stage of judicial review, I consider that the requisite high standards of fairness called for by the Court of Final Appeal in Prabakar have not been reached.

35.As Mr Kat pointed out, even the Brief Notes for Adjudicators acknowledge (in paragraph 11.2) that an oral hearing should normally be conducted by the adjudicator if the adjudicator finds that there are credibility issues crucial to the decision of the petition which were not adequately addressed during the interviews or supported in the assessment by the Director.  In my view, the adjudicator is entitled to take into consideration the claimant’s absence or failure to attend a scheduled interview, in considering whether the claimant had been given a reasonable opportunity to present his case.  Nevertheless, irrespective of the reason for a claimant’s absence at an interview, the fact may remain that there are issues crucial to the decision on the petition which were not adequately addressed, in which case an oral hearing may still be justified.  Paragraph 11.1 of the Brief Notes states that an oral hearing may be dispensed with where the adjudicator is satisfied that the petition can be justly determined on the papers.  In my view, bearing in mind the questions which the Adjudicator had as to the Applicant’s credibility, and the reasons given by the Adjudicator in this case for the dismissal of the Applicant’s claims, the Petition cannot be justly determined on the papers without an oral hearing, and without the Adjudicator’s investigation with the Applicant, and her consideration, of the matters referred to in paragraph 34 above, all against the backdrop of the relevant COI.

36.The fact that it is for the Applicant to present all the information and evidence available to him for the purpose of the Petition, and the fact that the Applicant has not presented any further information in addition to what he had included in the Questionnaire, do not detract from the Adjudicator’s duty of joint endeavor, to raise with the Applicant issues which are of concern to her, and which may affect the Applicant’s credibility and the Adjudicator’s ultimate determination of the Applicant’s claims.  In this regard, I agree with the observations made by Saunders J in FB v Director of Immigration [2009] 2 HKLRD 346, at 393 (in paragraph 212 of his judgment), albeit made in the context of the scheme operating at the relevant time:

“In respect of FB, Mr Mok made much of the fact that no additional material or submissions were presented to the Secretary for the consideration of the petition. In my view there is no basis to deny an oral hearing. The petitioner is perfectly entitled to say, for example, in support of his petition, that inappropriate weight has been accorded to some aspect of the evidence by the decision maker, or that the decision maker has rejected the petitioner’s credit for inappropriate reasons. These are grounds which do not require additional material to be presented. They are matters which may well be argued in an oral hearing.”

37.I therefore accept the Applicant’s submissions that in the absence of an oral hearing before the Adjudicator’s determination of the Petition, the Substantive Decision was unfair.  It goes without saying in this case that the Applicant suffered prejudice as a result, as his Petition was dismissed.   As explained in paragraph 32 above, the Adjudicator failed to inquire into and consider all relevant circumstances, and for these reasons alone, the Substantive Decision is liable to be set aside as being unlawful.

Whether the Adjudicator had erred in law

38.I will deal briefly with the other grounds relied upon by the Applicant.   

39.It has been claimed that the Adjudicator had erred in law in adopting a wrong approach to the requirement for proof of the Applicant’s case.  Mr Kat Claims that the Adjudicator should have considered the possibilities and probabilities of the Applicant’s account (in accordance with the principles set out in Karanakaran), instead of adopting a litigation approach to his account of primary facts, and looking for evidence in corroboration.

40.I am not persuaded that the Chief Judge intended in TK to reject outright the approach to proof adopted and as analyzed in Karanakaran, that in the assessment of risks and future outcomes, an element of speculation is required, and under the Convention, the decision-maker has to consider the likelihood of all material facts, and consider them as a whole, in deciding whether there is a serious possibility or substantial grounds for the claimant’s belief that he would be in danger of being subjected to torture.  As Sedley LJ observed at page 479 of his judgment in Karanakaran, in the context of an asylum claim :

“The question whether an applicant for asylum is within the protection of the convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. … Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and - sometimes - specialized knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.”

41.Mr Kat emphasized that although the Applicant has to show that there are substantial grounds for believing that he would be in danger of being subjected to torture, the threshold to be met is low.  He must show that there is a real risk on grounds of substance, not mere theory or suspicion, and the risk does not have to meet the test of being highly probable.

42.The Adjudicator is aware of such low threshold, which is identified in paragraph 15 of her Decision.

43.From the Decision, it can be seen that the Adjudicator considered different facts and matters, which she had to do, such as the Applicant’s claims of ill-treatment and assault, Ishfaq’s approaches to the Applicant, and the alleged false charges against Ali, but she considered that, on the whole, the Applicant had failed to demonstrate that there were substantial grounds for believing that he would be in danger of being subjected to torture upon his return.  It cannot be said that the Adjudicator had either erred in law in her approach to proof, or that her rejection of the Applicant’s overall claim of a real, personal risk of being subjected to torture is so unreasonable, that no reasonable decision maker properly directed could reach it.

44.Mr Kat on behalf of the Applicant further claims that the Adjudicator had misdirected herself in law as to the meaning and requirements of acquiescence in Article 1 of the Convention.   He highlights the fact that there is no reference at all in the Adjudicator’s Decision to the consideration of whether the receiving state was able to provide reasonable protection to the Applicant against those engaging in Convention prohibited conduct, as explained in TK (CA) and R v Secretary of State, ex p Bagdanavicius [2005] UKHL 38.

45.The Adjudicator states (in paragraph 26 of her Decision) that, in her view, “there is absolutely nothing to show that the police even knew that (the Applicant) had been beaten up”.  On that basis, she did not go on to inquire into and determine whether the state or its officials have either exercised due diligence, or can provide reasonable protection against the acts of the non-state actors.  It cannot be said that the Adjudicator had misdirected herself in law or had misunderstood the meaning and requirements of acquiescence.

Conclusion

46.I find that in the absence of an oral hearing in this case, there was procedural unfairness and the Adjudicator had failed to consider all relevant matters, such that the Decision should be set aside.  I accordingly grant the orders sought by the Applicant in terms of paragraphs 1 to 3 of his Originating Summons issued on 3 July 2012. 

47.I further make an order nisi that the Applicant is to have his costs of these proceedings, with certificate for counsel.  The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Nigel Kat, instructed by Yip & Liu (assigned by Director of Legal Aid), for the applicant

Miss Grace Chow, instructed by the Department of Justice, for the 1^st & 2^nd interested parties

The attendance of the respondent was excused