Re Mi

HCAL 20/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 20 OF 2013

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J U D G M E N T

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1.This is an application for leave to apply for judicial review in respect of (1) the determination (“Determination”) of the Director of Immigration (“Director”) rejecting the applicant’s (“A”) claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and (2) the decision of the Adjudicator dismissing A’s petition against the Determination (collectively “Decisions”) .

2.In short, the case of A is premised upon the alleged fear that, if returned to Pakistan, he would be killed or harmed by members of the Sunni community because he is a Shiya Muslim.

3.There are 4 grounds advanced in the Amended Form 86.  The 4^th ground, which was added by way of amendment, has been withdrawn because A’s claim under Article 3 of the Hong Kong Bill of Rights will be dealt with under the new Unified Screening Mechanism.  Under the first 3 grounds, it is contended that the Decisions are irrational; the Adjudicator’s decision is procedurally unfair because of the lack of an oral hearing; and the Adjudicator had failed to give reasons for not holding an oral hearing.

4.There is no merit in the criticisms based on the lack of oral hearing.  It is plain from the Adjudicator’s decision that the issues of credibility were cast aside.  See RS, CACV 206/12; Centeno v Director of Immigration, HCAL 50/12; and ST v Betty Kwan & Anr [2013] 3 HKC 87.

5.In respect of irrationality, it appears to me that the most important complaint is that both Decisions were made without regard to (a) the “extended meaning” of acquiescence on the part of the Pakistani Government and (b) the relevant country information which is critical of the competence of the Pakistani Government in upholding the law and order of that country.  I believe these matters are basically the two sides of the same coin.  I have been referred by Mr Lam, who appeared for A, to, inter alia, the recent authorities of R v Director of Immigration, HCAL 148/12, 31 May 2013 and AM v Director of Immigration & Anr, HCAL 102/12, 20 November 2013. 

6.First of all, neither of the Decisions contains a list of the material considered by the decision maker.  This is unsatisfactory and there is some force in this complaint. 

7.However, it would not be right to say that neither the Director nor the Adjudicator had in mind the issue of State acquiescence when they made their decision.  There are indications in the Decisions that they were alive to the issue (see paras III(A)(i), (iii) and (C)(iv) of the Determination and paras 3 and 8 of the Adjudicator’s decision).  Also, it has to be said that it was something elementary and one ought not come to the conclusion that it was ignored or overlooked without sufficient ground.

8.Secondly, this case can be distinguished from R and AM, supra.  In those cases, the applicant did not make any report to the police because of alleged fear of biased treatment.  In this case, there was evidence that the Pakistani police responded to the complaints of violence made by A and his religious leaders and investigated the matters (albeit, according to A, without success).  Such evidence was considered by both the Director (Determination, pg 3) and the Adjudicator (paras 5 and 8 of his decision).  The Director took the view that “There is simply nothing to show that the Pakistani government was behind [the assailants’] acts and refused to do anything about it” (III(A)(i) of the Determination).  Similarly, the Adjudicator’s finding is that “There is no evidence, not even a hint, of any acquiescence on the part of the police in the whole case” (para 8 of his decision). 

9.Thirdly, Mr Lam accepted, quite rightly, that the existence of literature which is critical of the competence of the Pakistani Government in upholding the law and order of that country does not mean that every member of the Shia faith who was subjected to violence from his Sunni brothers would meet the requirements under Article 3 of CAT.  Further, Mr Lam accepted that one cannot equate the lack of positive result from police investigation with State acquiescence.  Therefore, it must logically follow that the issue of State acquiescence is facts sensitive. 

10.I have no doubt that both the Director and the Adjudicator were entitled to come to the view that the police actions demonstrated that there was no State acquiescence.  Even assuming that they had overlooked the country information critical of the Pakistani Government, which are set out in the Amended Form 86, I am unable to see that how such general information would materially impact upon a finding on the particular facts.  To suggest otherwise would effectively be saying that unless the Pakistani police had managed to apprehend the alleged assailants, they had acquiesced in the wrongdoings.  That cannot be right. 

11.Having scrutinized the Decisions, I am unable to see any reasonably arguable ground (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676) for reviewing the findings on “State Actor”.  I may not agree with the other conclusions of the Adjudicator.  However, it is accepted by Mr Lam that the failure to establish this element is fatal to A’s CAT claim. 

12.Further, I am of the view that whatever deficiency there is in the Decisions on country information would not affect the outcome and I would exercise my discretion to decline to grant leave.

13.Accordingly, this application is declined.  A’s own costs be taxed in accordance with legal aid regulations, save that the costs of preparing (a) the bundle of exhibits for A’s 1^st affirmation and (b) bundle B2 of the hearing bundles be borne by A’s solicitors. 

Mr Newman Lam, instructed by John M Pickavant & Co, for the applicant

Please refer to CACV69/2014 for the relevant appeal(s) to the Court of Appeal.