Rafaqat also known as Rafaqat Makaram v. William Lam

HCAL 119/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 119 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.The applicant is a torture claimant under the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (“CAT”).

2.The applicant’s CAT claim was dismissed by the Director of Immigration (“the Director”) on 7 February 2012.  The applicant later lodged a petition (“the Petition”) dated 28 May 2012, asking the adjudicator to re-consider his CAT claim.

3.The adjudicator by way of his decision (“the Decision”) made on 11 June 2012 dismissed the Petition.

4.This is his judicial review application against the Decision.

5.The application is opposed by the Director as the Interested Party, while the adjudicator as usual takes a neutral stance.

B. THE FACTS

6.The applicant is a Pakistan national.  He arrived in Hong Kong on 7 March 2009 illegally by boat and was arrested by police for illegal remaining.  He was then detained by the Immigration Department (“the Department”).

7.On 10 March 2009, he made a torture claim under the CAT at an interview with Department.  On the “Interview Report (Grounds for non-removal)”, he stated that the basis of his claim was that “There is danger to my life in Pakistan as to save my life I came to Hong Kong.  I have land dispute with my paternal cousins.  They are rich and influential.  They threatened to kill me.  I want to apply for Torture case.”  (emphasis added)

8.The applicant was later released from custody on recognizance in light of his CAT clam.

9.In June 2009, he was informed by the Director that the torture claims screening was temporarily suspended as the then operating screening system was declared by the court to be unlawful[1].

10.In July 2009, the applicant updated the Director his phone number and address.

11.Respectively in January and October 2010, the Director informed by way of letter the applicant that the CAT claim screening had been resumed and asked the applicant to wait for his call-up.  The Director also attached to the respective letters a copy of the document entitled “Rights and Responsibilities of a Torture Claimant in the Screening Process” and its Urdu translation.  The applicant has been claiming that he does not understand English.

12.The applicant updated the Director with his phone number and address on 12 October 2010.  The address was the same as the one he provided to the Director in July 2009 as mentioned above.

13.In January 2011, the applicant was convicted of taking employment in Hong Kong without the Director’s authority.  He was sentenced to 14 months’ imprisonment.

14.In between February and November 2011, while imprisoned:

(1) The applicant complained of coughing and fever;

(2) He was diagnosed of suffering from Pulmonary Tuberculosis (“TB”) and was treated medically.  His health condition was under monitor and regular reviews by the relevant medical department.

15.On 2 November 2011, the applicant’s anti-TB treatment was completed, and on 3 November 2011, he was discharged from prison upon completion of his sentence.

16.He was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) under the care of the Department.  During the health screening at CIC, it was stated in the screening form by the staff that the applicant complained of chest pain while breathing in, and that he had history and diagnosis of heart disease and TB.  He was prescribed medications for treatment.

17.By a “Detainee Submission Sheet” dated 7 November 2011, the applicant also told his case officer that he had kidney and heart problems.

18.On 18 November 2011:

(1) The applicant was provided with:

(a) A “Notice to Person Making a Claim under Article 3 of [the CAT]”; and

(b) A “Questionnaire for Persons who have made claims under Article 3 of [the CAT]” (“the Questionnaire”).

(2) He was assisted by an interpreter when being provided with these documents.  He indicated that he wished to apply for publicly-funded legal assistance in making his CAT claim.

(3) The Director thus referred the applicant to the Duty Lawyer Service (“DLS”).

(4) At the same time, he was medically examined.  It was stated in the record that he had chest pain and blood in his sputum.  He was then prescribed with medications.

19.The applicant was later released from custody on recognizance on 3 December 2011.

20.At about the same time, the Director informed DLS of the applicant’s address and telephone number as provided to the Director by the applicant.

21.On 20 December 2011, the Director by a letter to the DLS requested the applicant to return the Questionnaire by 28 December 2011.

22.On 28 December 2011, the DLS by a letter informed the Director that they had no instructions from the applicant.  On 30 December, the Director replied to DLS stating that he would deal with the applicant directly in respect of the CAT claim given that DLS did not have instructions from the applicant.

23.On 30 December 2011, the Director tried unsuccessfully to contact the applicant by calling him on his last provided telephone number.

24.Thereafter, by a letter dated 3 January 2012 (with its Urdu translation) sent to the applicant’s address, the Director:

(1) Informed the applicant that he had failed to return the Questionnaire without reasonable excuse;

(2) Asked the applicant to contact his department by 26 January 2012, failing which the case officer would determine his CAT claim on the basis of the available information and might reject the claim if he had not provided sufficient material to substantiate it; and

(3) Advised the applicant to seek advice from DLS or his legal representative on the matter.

25.At the same time, the Torture Claim Assessment Section (“TCAS”) of the Department sent a memo to the Clearance Section of the Department (“CLS”)[2], seeking assistance to ask the applicant to provide TCAS with his updated contacts, to contact his TCAS officer and to deliver a copy of the letter of 3 January 2012 when he next reported for recognizance on 16 January 2012.

26.On 16 January 2012, when the applicant reported for recognizance, the aforementioned letter of 3 January 2012 was given to him.  Also when the applicant called his TCAS case officer, he was reminded to return his completed Questionnaire by 26 January 2012 and that the Department would determine his claim on the basis of available information if he failed to do so.

27.The applicant however had not returned the Questionnaire.

28.On 30 January 2012, TCAS sent a further letter to the applicant (in English with Urdu translation, which was not returned undelivered) stating that given that he had been given reasonable opportunity to provide information to support his claim, assessment of his CAT claim would be made on the basis of the available information.

29.The applicant’s CAT claim was assessed and refused by a Senior Immigration Officer.  A copy of the Notice of Determination (in English with Urdu translation) (“the Determination”) together with a blank Notice of Petition and a leaflet of DLS were sent to the applicant on 7 February 2012.

30.In the last two paragraphs of the Determination, the applicant was informed as follows:

“If you are aggrieved by the [Determination], you may petition to the Chief Executive of the Hong Kong Special Administrative Region (‘the CE’). You may recall that we informed you on 18 November 2011 that you might apply for publicly-funded legal assistance provided by DLS to assist you in making your claim, and we also provided you with an information leaflet about the availability of the publicly-funded legal assistance and you accepted publicly-funded legal assistance provided by DLS. You may consider applying for publicly-funded legal assistance provided by DLS to assist you as at the petition stage, and publicly-funded legal assistance will also be available for meritorious cases. Please refer to the information leaflet about the publicly-funded legal assistance scheme for details, which is enclosed again for your reference. The petition to the CE will be considered by the Adjudicator (Torture Petitions) under authority delegated from the CE. A blank Notice of Petition in English consisting of 9 pages is enclosed. Your Notice of Petition (in English or Chinese) and all supporting documents, if any, should reach the office of the Petition Team of the Security Bureau at …. within 14 days from the date of this letter, failing which you may be repatriated/ removed/ deported from Hong Kong.”

31.The applicant was thus aware of the fact that he should lodge a petition to the CE if he wished to do so within 14 days of the Determination. However, he did not do so within that 14-day period.

32.Later, he failed to report recognizance on the reporting date of 12 April 2012.  When he surrendered to the Ma Tau Kok Recognizance Reporting Office on 11 May 2012, CLS decided to detain him at CIC.

33.While in custody, the applicant lodged the Petition, which was dated 28 May 2012.  The Petition was therefore made more than 3 months after the 14-day period.  This was received by the Petition Team of the Security Bureau (“the Petition Team”) apparently on 1 June 2012.

34.In the Petition, the applicant stated his grounds of petition as follows:

“Respected Sir,

with due respect, I would like to say that I am disagree with the decision of the [Director] about my torture claim because I never given any screening interview and [the Director] refuse my torture claim. I never attend interview because of my sickness. I have a medical proved. Please help me to approve my petition.

I shall be very thankful to you.”

35.On 1 June 2012, by memo, the Petition Team informed the Director that the applicant had lodged the Petition, and the Director was asked to provide various documents to facilitate the adjudicator to decide whether to conduct an oral hearing.

36.On the same day, a copy of the Determination was sent to the adjudicator and by a letter with Urdu translation the applicant was informed of the same.

37.After considering it on paper, by way of the Decision, the adjudicator dismissed the Petition.

38.The adjudicator’s reasons for dismissing the Petition can be summarised as follows:

(1) The applicant was some 3.5 months late in filing the Petition.  However, in the Petition, he did not ask for any extension of time or give any reasons for the delay.  The Petition had therefore “violated the rules of procedures” and was thus dismissed (paragraph 1 of the Decision).

(2) Further, even assuming that the applicant was asking for an extension of time in the Petition by stating in the Grounds of Petition that he did not attend the interview arranged by the TCAS “because of [his] sickness.  [He] [had] a medical proved [sic]”, this would not be accepted as a good reason for extension of time.  This was so as the applicant’s allegation of sickness was just a bare assertion.  It was not supported by any particulars, such as the type, diagnosis and period of the sickness, or by documents such as medical certificates or reports showing those details (paragraph 8 of the Decision).

(3) In any event, taking the applicant’s case to the highest on the available information and putting aside any credibility issues, the applicant’s CAT claim must still fail because it did not come within the scope of CAT:  First, the claim lacked the necessary state actor element as required under Art 1 of CAT as the dispute leading to the “death threats” was only a private dispute among relatives.  Second and in any event, the alleged “death threats” did not constitute “severe pain and physical or mental suffering reaching the minimum level of severity”, and/or were not made “in order to obtain information or a confession” from the applicant or any third person, or “as a result of discrimination”.  They therefore did not amount to “torture” for the purposes of Art 1 (paragraphs 12-18 of the Decision).

39.On 11 September 2012, the applicant applied for leave to judicially review the Decision.  By then, he is legally aided.  On 10 October 2012, leave was granted.

C. THIS JUDICIAL REVIEW

C1.1 Grounds of judicial review

40.The applicant raises in principal three grounds of judicial review:

(1) The Decision is tainted with procedural impropriety in that the adjudicator had failed to make sufficient inquiry before refusing the Petition on the ground of lateness (“the failure to make sufficient inquiry ground”).

(2) The Decision is tainted with procedural impropriety in that the adjudicator had failed to conduct an oral hearing in dismissing the Petition (“the lack of oral hearing ground”)[3].

(3) The Decision is tainted with errors of law in (a) the adjudicator’s conclusion that the CAT claim did not fall within Art 1 of the CAT since the alleged death threats did not amount to torture as defined, and (b) the adjudicator’s failure to ask the correct question as to whether there were substantial grounds to believe that the applicant would have a real risk of being torture if returned to Pakistan (“the errors of law ground”).

41.For reasons that would become clearer later, I would deal with the lack of oral hearing ground first.

C1.2 The lack of oral hearing ground

42.Mr Pun submits that in the context of the present case, procedural fairness requires that there should be an oral hearing, as the decision is likely to turn on the resolution of factual issues[4].

43.Counsel’s submissions in support of this ground can be summarised as follows:

(1) The applicant’s CAT claim concerns his life and limbs, and “high standards of fairness” demand that he be given every reasonable opportunity to put forward his case: Secretary for Security v Prabakar (2004) 7 HKCFAR 187 at paragraphs 43‑51; CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 30; FB, supra, at paragraphs 58, 126, 139, 175, 178, 190, 213 and 226;

(2) Further, it is the duty of the decision-maker to inquire into the country conditions and consider evidence for the purpose of determining a torture claim: Prabakar, at paragraphs 54-55;

(3) The Director decided against the applicant only on the applicant’s written representation dated 10 March 2009 (see paragraph 7 above).  The presentation was very short and simple without any elaboration.  But for the applicant’s absence from the screening interview due to his sickness, the Director would have required detailed explanations from the applicant before making a determination on the applicant’s torture claim.

(4) Although it is correct that the Director had to so determine the applicant’s CAT claim because the applicant could not be located and had failed to submit a completed Questionnaire, the situation before the adjudicator was completely different.  By then, the applicant was in the custody of the Director, of which the adjudicator was aware.  There was therefore no reason why the adjudicator could not order an oral hearing for the applicant to explain the basis of his claim.

(5) If there had been an oral hearing, the applicant would have been in a position:

(a) to explain his “absence” in his previous dealing with the Director;

(b) to provide medical proof in respect of his health conditions;

(c) to explain why there had been late filing of Notice of Petition;

(d) to explain, clarify or elaborate in details the basis of his torture claim;

(e) to request assistance from the adjudicator or the Director in proving his torture claim, given the duty to inquire on their part;

(f) to call witness and produce evidence in support of his torture claim; and

(g) to respond to any questions that the Director or the adjudicator might have in respect of his torture claim.

(6) In the premises, in the circumstances of the present case, the adjudicator had failed to make sufficient inquiry in failing to provide the applicant an oral hearing.  This amounts to procedural unfairness and a breach of the adjudicator’s duty as prescribed by the law.

(7) The Decision is therefore unlawful.

44.I am not persuaded by these submissions.  My reasons are as follows.

45.It has been laid down by the Court of Appeal in TK v Jenkins[5] that, even under the “high standards of fairness” as required in determining CAT claims:

(1) A torture claimant still bears the burden of proof to make out that his case falls within the requirements under the CAT (paragraph 35).  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” (paragraph 25).

(2) Where a claimant is represented and assisted by duty lawyers, he is expected to conduct his own investigation and obtain information and materials that he requires to prove his case.  The bottom line of the high standards of fairness required in the screening process boils down to fairness and commonsense (paragraph 23).

(3) Moreover, whether high standards of fairness may require the Director or the adjudicator to probe further into an answer or an omission is dependent on the facts and circumstances of each case.  For instance, where it is readily apparent that something had gone amiss such as the “proof documents” in Prabakar that the applicant there had mentioned, but was unable to produce and did not produce, or that a point has obviously been overlooked or missed out.  There may however be no duty to keep probing or inquiring where the objective circumstances make it reasonably clear that the applicant 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.  Everything depends on the facts of each case (paragraph 24).

46.Further, as I have said in ST, supra, at paragraph 34, as a matter of law, in the context of administrative decisions, there is no absolute right to an oral hearing.  Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and the nature of the decision to be made.  Provided that they achieve the degree of fairness appropriate to the task, it is for the decision making bodies to decide how they will proceed and for them to decide whether an oral hearing is necessary: R v Army Board of the Defence Council ex parte Anderson [1992] QB 169 at 187 per Taylor LJ; Liu Pik Han v Hong Kong Federation of Insurers Appeal Tribunal (unreported, HCAL 50/2005, 11 July 2005) at paragraph 1(iii) per Lam J (as the learned VP then was).

47.Bearing in mind the above principles, in my view, high standards of fairness do not in the present case require the adjudicator to hold an oral hearing to “probe” and make further inquiries in relation to the applicant’s torture claim as contended by Mr Pun:

(1) Whether the applicant in the circumstances of this case had been provided with reasonable opportunities to answer his case must be viewed in the context of the 2-tier screening process as a whole.  As said by the Court of Appeal in RS (unreported, CACV 206/2012, Lam, Barma JJA, Macrae J, 20 August 2013) at paragraph 22: “the ultimate issue is whether the Secretary for Security acted fairly in processing the Applicant’s CAT claim and this must be considered globally.  The determination of the petition should not be viewed as an isolated process.  The petition is part and parcel of the overall administrative process in the determination of the CAT claim…”.

(2) As described above, the applicant had been given a number of opportunities for him to return a completed Questionnaire.  He simply did not do so.  There is no suggestion by the applicant in this application that he did not understand the reminders and the importance of returning the Questionnaire by the extended deadline, and the fact that his CAT claim would be determined on the basis of the information he had provided if he failed to complete the Questionnaire.  It cannot be the case anyway, as the letters reminding him of the initial and the extended deadlines to return the Questionnaire were accompanied with Urdu translation.  Further, it is important to note that at no point of time during this stage he had told the Director that he was unable to return the Questionnaire within time because of any sickness he was suffering from.  He had also never asked for any extension of time to return the Questionnaire.

(3) At the same time, even though he was referred to the DLS at his request, he decided not to give any instructions to enable the lawyers to help him to return the Questionnaire to the Director.  It is thus not a case where he did not or could not afford to have legal representation.  It is a case where he chose not to have legal representation after being given one.  In my view, in such circumstances, unless he could offer any good reasons (and there are none in the present case) for choosing not to have legal representation, in considering the question of fairness in the process, he must be treated in the same position as someone who has legal representation (see paragraph 45(2) above).

(4) In the premises, it must be regarded as the applicant’s own decision and choice not to provide any further information to the Director by way of the Questionnaire and any interviews to be held by the immigration officer after the receipt of the Questionnaire for the determination of his CAT claim.

(5) As mentioned above, the law (even viewed under the high standards of fairness and the duty on the decision-makers to make inquiry) does not permit an applicant to simply sit back and do nothing after lodging his CAT claim.  However, this is precisely what the applicant in the present case had chosen to do.

(6) In these circumstances, where the applicant had himself chosen not to take up and to ignore the number of opportunities provided by the Director to him to provide all the necessary information that was within his ability and control to provide, even under the high standards of fairness and the duty to make inquiry, the adjudicator was entitled to equally treat the applicant as having already been provided with reasonable opportunities to submit all information he could have been able to provide. The adjudicator was further then entitled to assess, based on this information, whether the applicant had established at least a prima facie case under the CAT and decide in this second-tier of the screening process whether it was necessary to hold an oral hearing on the basis such information.

(7) In my view, it cannot be right that in such a situation as the present one, the adjudicator in the second-tier of the screening process was required as a matter of fairness to conduct an oral hearing to ask more questions so as to enable the applicant to establish his CAT claim. This is so as, firstly, the applicant decided not to do so himself at the first-tier of the screening process, and secondly, the adjudicator was prepared to determine the Petition by taking the applicant’s case to the highest as stated by him and putting aside any credibility issues.  As seen above, the adjudicator’s rulings in the Decision do not involve any resolution on factual disputes or issues of credibility.  The adjudicator therefore did not commit any procedural irregularities in deciding not to hold an oral hearing in determining the Petition.

(8) In Bikramjit Singh v Wyeth (unreported, HCAL 68/2012, 16 August 2013), a CAT claimant applied to judicial review the adjudicator’s rejection of his petition.  Similar to the present case, the claimant, after lodging a CAT claim based on certain allegations, chose to disregard the reminders and chasers issued by the Director to him and failed to return the Questionnaire.  The Director therefore dismissed the claimant’s claim based on the information he provided when he lodged the claim, and the adjudicator dismissed the petition subsequently without an oral hearing.  The claimant in that judicial review application complained that the adjudicator had failed to make sufficient inquiry.  After describing that the claimant in that case chose to sit back and do nothing, Andrew Chan J observed at paragraph 21 as follows:

“21. In the present case, the claimant did exactly that. Apart from stating some bare allegations, he just sat back. He was urged repeatedly to submit the Questionnaire, yet he chose to ignore those reminders and warnings. Although the screening process is described to be one of joint effort, the applicant, in my view, did not put in any effort. I have no doubt this is the reason why the adjudicator described this application as ‘most unusual’. When a claimant chooses not to be legally represented, knowing that legal service is available, he assumes the responsibility in establishing the claim. The burden cannot simply be shifted to the adjudicator. The legally unrepresented claimant, in circumstances as such, is expected just as well to conduct his own investigation and to obtain necessary materials. In this case, there is no duty to keep probing or inquiring where the objective circumstances are clear that the applicant is aware of what he has to show. It cannot be right to suggest that the less the claimant volunteers to provide, the more onerous a duty be imposed on the adjudicator.”

(9) I entirely agree with the learned Judge’s above observations.

48.For these reasons, I do not think the adjudicator in not holding an oral hearing was in breach of any procedural fairness (viewed under the high standards of fairness) and duty to make inquiry in the present circumstances in determining the Petition.

49.This ground of judicial review is rejected.

C1.3  Errors of law ground

50.Art 1 of CAT provides for the meaning of “torture” for the purpose of the CAT.  It says as follows:

“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

51.The adjudicator therefore rightly identified at paragraph 9 of the Decision that the meaning of “torture” must satisfy 4 elements as set out under Art 1.  It is any act by which (1) “severe pain or suffering, whether physical or mental” (“the pain or suffering element”), (2) is “intentionally inflicted on a person” (“the intentional infliction element”), (3) for “such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind” (“the purpose element”), and (4) when “such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (“the state actor element”).

52.The adjudicator then proceeded to consider the merits of the applicant’s CAT claim at paragraphs 10 to 18 of the Decision as follows:

“10. The burden of proof is on a petitioner to establish the above 4 legal elements, but the standard of proof is relatively low. He/she does not need to show a risk which is highly probable. But he/she needs to establish that there are substantial grounds for believing he/she would be at risk of being subjected to torture, and the risk must not be merely possible or speculative, but must be ‘foreseeable, real and personal’, ie a general picture such as an allegation of ‘a generally corrupt police force’, or ‘the country is unsafe because there are frequent bomb explosions in public places’, without evidence being produced of the claimant himself actually having been directly and personally victimised, would only be of background relevance. If actual torture has taken place, then whether it was in the recent past or a long time ago is relevant, as events must be considered in the context of today: A.R. v the Netherlands CAT Comm 203/2002, N.Z.S. v Sweden CAT Comm 277/2005 §8.5, S.P.A. v Canada CAT Comm 282/2005 §7.2, Saadi v Italy No 37201/2006, Eveline Njamba & Kathy Balikosa CAT/C/44/D/322/2007 §4.5-4.6, M.F. v Sweden CAT/C/41/D/326/2007 §7.6.

11. For the purpose of deciding this Petition, I put aside issues of credibility. I consider whether, if the Petitioner’s version were taken at its highest, it would support a case for non‑refoulement.

Legal ‘Element 4’: the requirement of a ‘State Actor’

12. The mere fact that the Petitioner’s cousins are ‘rich and influential’ (vagueness for detail aside) does not point to any of their acts being the official stance taken by the national government of Pakistan or by anyone in his or their official capacity. The dispute over land, presumably owned by the Petitioner and desired by his cousins, is a private affair between the cousins and the Petitioner, with no evidence or even an allegation of having been instigated from or involvement by the national Government or Pakistan or by any person acting in an official capacity.

13. The evidence fails to establish involvement by a ‘State Actor’, hence Element 4 in the definition of Torture is not established. This aspect alone dismisses the Petition.

Legal ‘Element 1’: ‘Severe pain and suffering’ as stated in the common law

14. The allegations were about death threats, but nothing about physical assault, not to mention any injury, not to mention any serious injury which was ‘severe pain and physical or mental suffering reaching the minimum level of severity’ such as assessed and stated in the common law cases: see for example Huri-Laws v Nigeria Afr Comm HPR, Comm 225/1998 (23 October – 6 November 2000) at §41.

15. Accordingly, this case consists of no act which establishes ‘Element 1’ in the definition of Torture, hence the Petition also fails because of a reason independent of what was stated in paragraph 13 above.

Legal ‘Element 3’: the requirement for ‘purpose of confession or information or in perpetration of a discrimination’

16. Even leaving the lack of any physical assault or injury aside, the alleged threats had only been uttered for the purpose of putting pressure and/or fear upon the Petitioner in order to make him give up his land, but not ‘in order to obtain information or a confession from the Petitioner or any third person’, or ‘as a result of discrimination’ whether racial, sexual, or otherwise.

17. Accordingly, the evidence has failed to establish ‘Element 3’ in the definition of Torture, and the Petition fails because of yet another reason which is independent of what have been stated in the preceding paragraphs.

18. For the above reasons I can see no merit in the torture claim.  Accordingly even if an extension of time were allowed for the filing of the petition, it would in any event fail.” (my emphasis added by underlines)

53.Thus, he concluded that even taking the applicant’s stated case to the highest and putting issues of credibility aside, the applicant’s CAT claim still failed to satisfy the state actor element. Moreover, and in any event, the “death threats” allegations made in the applicant’s claim also did not satisfy the pain or suffering element, and the purpose element.  The claim therefore did not fall within the scope of CAT.

54.The adjudicator therefore rejected the CAT claim.

55.Under this ground of judicial review, Mr Pun says the adjudicator was wrong in law to conclude that the “death threats” targeted at the applicant did not fall within the meaning of “torture” under Art 1 of CAT.  The Decision thus should be quashed.

56.I am not persuaded that the Decision to reject the Petition on merits should be quashed under this basis.  This is so as even if Mr Pun is correct to say that the adjudicator committed errors of law in his conclusion regarding the pain or suffering element and the purpose element[6], the adjudicator was still correct in his conclusion on the lack of the state actor element in the applicant’s CAT claim (and Mr Pun in fact did not challenge this part of the adjudicator’s conclusion).  It should be noted that the adjudicator had made it clear that he considered the pain or suffering element and the purpose element independent of his conclusion on the state actor element (see paragraphs 15 and 17 of the Decision).

57.In the circumstances, the applicant’s case still did not fall within Art 1 of the CAT and the adjudicator was right to reject it.

58.I also do not accept Mr Pun’s contention that, in coming to the above conclusion, the adjudicator had failed to ask the correct question as to whether there were substantial grounds to believe that the applicant would have a real risk of being torture if returned to Pakistan. The adjudicator had clearly reminded himself of this question before he looked at whether the applicant’s claim met the requirements of the CAT (see paragraph 10 of the Decision).

59.I therefore would also reject this ground of judicial review.

C1.4  The failure to make sufficient inquiry ground

60.There are no merits in this ground as a basis to quash the Decision.

61.Notwithstanding the adjudicator’s dismissal of the Petition firstly on the ground that there was no application for an extension of time to lodge the Petition, the adjudicator did in fact go on to consider whether he would allow the extension of time if one were made[7], and then whether he would allow the Petition on merits in any event even if an extension of time were granted[8].

62.In the premises, again even if Mr Pun is correct to say that the adjudicator had failed to make sufficient inquiry as to the reasons for the applicant’s lateness in lodging the Petition before deciding to dismiss it on that basis, the conclusion of the Decision to dismiss the Petition is still non-challengeable as I have concluded above (on the basis that there was no procedural unfairness for the adjudicator not to hold an oral hearing and that the claim did not fall within Art 1 of CAT for the lack of state actor).  Therefore, I would not have exercised my discretion to quash the Decision on this basis alone.

63.In any event, I do not think the applicant’s complaints under this ground are made out.

64.As I have said above, the adjudicator did consider whether there were good reasons provided by the applicant to justify an extension of time, and concluded that there were none.

65.In this respect, the reasons for the delay, and the documents in support of that, must be within the applicant’s own knowledge and possession.  It was therefore entirely within his ability to provide all the necessary information and documents to support that.  However, the applicant had failed to provide these most basic information and documents in the Petition to support the reasons, if any, for the delay.  I further repeat my observations at paragraph 47(3) above.  In these circumstances, even viewed under the high standards of fairness, it cannot be right to suggest that there was still a legal duty imposed on the adjudicator to make further inquiry.

66.I therefore do not think the applicant had failed to discharge his duty to make inquiry in his disposition of the applicant’s lateness in lodging the Petition.  There were therefore in any event no procedural irregularities in this part of the Decision as alleged.

67.The applicant also fails under this ground.

D.  CONCLUSION

68.For the above reasons, the applicant has failed in all the grounds raised in support of this judicial review.  I would dismiss the application.

69.There are no reasons why costs should not follow the event.  I further order (on a nisi basis) that costs of this application be to the Director to be taxed if not agreed, and that the applicant’s own costs be taxed in accordance with legal aid regulations. Unless any of the parties applies to vary it by summons, the costs order nisi shall become absolute 14 days from today.

Mr Hectar Pun, instructed by Messrs Yip & Liu, assigned by the Director of Legal Aid, for the applicant

Attendance of the respondent be excused

Ms Grace Chow, instructed by the Department of Justice, for the Interested Party