BT v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 65/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 65 OF 2014 ____________ BETWEEN BT Applicant and TORTURE CLAIMS APPEAL BOARD 1st Putative Respondent SECRETARY FOR SECURITY 2nd Putative Respondent and THE DIRECTOR OF IMMIGRATION Putative Interested Party ____________ Before: Hon Anthea Pang J in Court Date of Hearing: 16 December 2014 Date of Decision: 9 January 2015 _____________ D E C I S I O N _____________ Introduction This is an application for leave to apply for judicial review. The decisions sought to be challenged are framed in the Form 86 as follows : “(i) the decision of the Secretary for Security (“the Secretary”) to adopt a policy of determination of claims for non-refoulement protection whereby the risk of the claimant being subjected to torture, cruel, inhuman or degrading treatment or punishment (“CIDTP”) or persecution is assessed solely in accordance with Art 1(1) and 3 of the UNCAT while precluding from being taken into account Art 3 of the Hong Kong Bill of Rights (“HKBOR”) and Convention Relating to Refugee Status (“Refugee Convention”); (ii) the failure of the Secretary to afford the Applicant a fair procedure whereby his claim for non-refoulement protection is assessed and determined in accordance with law; (iii) the decision of the Appeal Board on 13 September 2013 dismissing the Applicant’s appeal against the Director’s determination of 14 June 2013.” In order to put things in context, briefly, this is the Applicant’s case. The Applicant is a Pakistani national born in 1975. He first came to Hong Kong in 1998. He overstayed on that occasion and was arrested, then repatriated to Pakistan. In 2001, the Applicant was appointed as a director of a branch of a human rights organization in Pakistan and he worked in his home town. In the course of his work there, the Applicant met an Afghani girl and they developed an intimate relationship. In August 2001, when the Applicant went to discuss his marriage with the girl, he was beaten by her two brothers and two other men outside the house until the Applicant lost his consciousness. When he came to, the Applicant found himself strung up with ropes at his ankles. He suffered head injuries and broken teeth and was hospitalized for 11 days. Upon discharge, the Applicant stayed away from his home town but the girl’s brothers spread a rumour in the Afghani community that the Applicant had sexual relationship with 20 Afghani women who worked with the Applicant. This resulted in a Fatwa being issued by the Taliban against the Applicant in September 2001 for adultery. Pursuant to the Fatwa, the Taliban would stone the Applicant to death if they found him. For fear that he might be killed, the Applicant came to Hong Kong in November 2001. The events did not stop there. In September 2002, his younger brother was kidnapped and interrogated under torture as to the whereabouts of the Applicant. In December 2003, the Applicant’s father was stopped in the streets by some Afghani men and they demanded the Applicant’s whereabouts. The father reported the matter to the police but the latter did nothing. In July 2004, some men went to the Applicant’s former work place to look for him and issued death threats. In 2006, the Applicant’s younger brother came to Hong Kong to seek asylum. He was unsuccessful and, on return to Pakistan, he was again kidnapped by the Taliban and tortured for information on the Applicant. In June 2010, his brother fled to Hong Kong. The Application for Leave On the second day of the Applicant’s arrival in Hong Kong, he lodged an application with the UNHCR for recognition as a refugee. His application was rejected in 2003. On 4 September 2006, the Applicant lodged his claim with the Director of Immigration (“the Director”) for non-refoulement protection. On 14 June 2013, the Applicant’s claim was rejected. On 26 June 2013, the Applicant filed a Notice of Appeal with the Torture Claims Appeal Board (“the Appeal Board”). In the Notice, the Applicant specifically asked for a medical examination and an oral hearing. On 13 September 2013, the Applicant’s appeal was dismissed by the Appeal Board without any oral hearing or any medical examination. On 12 June 2014, the Form 86 was filed. The grounds are summarized as follows : Ground 1 : the Chairperson’s failure not to conduct an oral hearing was procedurally unfair; Ground 2 : the Chairperson’s failure to arrange for a medical examination of the Applicant was unfair, and her consequent finding that the treatment he received was not sufficiently severe was irrational; Ground 3 : the Chairperson’s failure to allow the Applicant to adduce the evidence of his brother was unfair and consequently, her finding that the Applicant failed to substantiate his fear was irrational; Ground 4 : the Chairperson failed to consider passive acquiescence in finding that there was no State involvement; Ground 5 : the Chairperson’s finding that there was no personal risk to the Applicant even if the Taliban posed generic dangers to the population as a whole was irrational; and Ground 7 (this should be Ground 6) : the procedure for determining the Applicant’s claim was unfair and unlawful as there was a failure to take into account the risk of the Applicant being subjected to CIDTP, persecution and/or other inhuman treatment. After reading the papers, I caused the Applicant to be informed on 7 August 2014 that I was not inclined to grant leave in respect of Grounds 2, 5 and 7. As a result, and pursuant to O 53 r 3(3) of the Rules of the High Court, a hearing of the leave application was conducted on 16 December 2014 insofar as those grounds are concerned. Ground 2 : the Medical Examination Ms Ng, counsel for the Applicant, submits that the Chairperson’s refusal to exercise her discretion under s 37ZC of the Immigration Ordinance, Cap 115, to order a medical examination of the Applicant was wrong in principle and contrary to the guidance. It is further contended that since “the Director disputed the severity of the maltreatment, fairness required the Chairperson to give the Applicant the assistance he needed to obtain independent and objective expert evidence in reply to the dispute.” Pausing here, I should point out that while Ms Ng correctly described the Director’s dispute as being one in respect of the severity of the maltreatment, the request for medical examination was originally made based on the “Director’s dispute as to the injuries sustained by the Applicant”. It is therefore necessary to examine if there was any dispute as to the Applicant’s inquiries when the matter went on appeal. The Chairperson of the Appeal Board recorded in her Decision that “For the purposes of this assessment, I was prepared to accept what the Appellant said that he had personally experienced had occurred”. In other words, the alleged beatings, the hanging, the hospitalization, and the injuries sustained by the Applicant were not disputed. Based on these, the Chairperson then proceeded to examine whether such amounted to “torture” as defined in Article 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). In the end, the Chairperson concluded that such suffering did not meet the definition of “torture”. Given the relatively straightforward narrative of the factual matrix and that the Applicant himself confirmed with the interviewer that he got well afterwards and he felt “OK”, I do not consider that it was wrong in principle for the Chairperson not to have arranged for a medical examination. Nor do I accept that the absence of the examination rendered the procedure unfair to the Applicant. This is so although the exercise of determining whether a torture claim is valid is one of joint endeavour and although high standards of fairness are involved. Moreover, as there were, on appeal, never any factual disputes as to the beatings/injuries, I doubt if section 37ZC is applicable for the section reads, “(1) If the physical or mental condition of the claimant is in dispute and is relevant to the consideration of a torture claim — (a) an immigration officer or (on an appeal) the Appeal Board may require the claimant to undergo a medical examination to be conducted by a medical practitioner as arranged by an immigration officer; or (b) an immigration officer may, at the request of the claimant, arrange for a medical examination of the claimant to be conducted by a medical practitioner.” (emphasis added) A fortiori, in the absence of any alleged newly surfaced condition, physical or mental (or any allegation that any previous condition is still subsisting), which was said to have added to the level of the Applicant’s suffering on top of the narrative he had provided, the Chairperson was plainly correct in refusing to exercise her discretion in ordering a medical examination. To put it shortly, the dispute here was not whether the Applicant had sustained any injuries or whether the Applicant had indeed suffered. The question was one of magnitude of the suffering, that is, whether the maltreatment administered on the Applicant constituted “torture” under CAT. In answering this question, it is not for the medical expert to tell the Chairperson whether such undisputed facts and the unchallenged condition should amount to “torture”. It is for the Chairperson to apply the definition to the undisputed facts in arriving at a decision. I have therefore come to the view that this ground is not reasonably arguable and leave is refused accordingly. Ground 5 : Personal Risk In respect of this ground, it is contended that the Chairperson misdirected herself in requiring the Applicant to prove each relevant fact to the civil standard of proof. In addition, the Chairperson’s conclusion that the Applicant was not personally at risk of torture is said to be irrational given her acceptance of the Applicant’s account of events. In particular, it is submitted that the Chairperson’s statement that “there is no, or no sufficient evidence that the Fatwa exists” is inconsistent with the Applicant’s story. I should first deal with the alleged misdirection in relation to the standard of proof. Here, Ms Ng’s main criticism is that the Chairperson had misread the Chief Judge’s judgment in TK v Jenkins as requiring the Applicant to establish primary facts to the civil standard. Ms Ng contends that this reading is incorrect, placing reliance on the English Court of Appeal’s judgment in Karanakaran v Secretary of State for the Home Department and the judgment of Mimmie Chan, J in Shafqat v Betty Kwan and Others. In my view, the words used by the Chief Judge in TK were clear. In the present case, the Chairperson did no more than repeating those words in the judgment, which is a binding authority on her. In the circumstances, I do not consider it reasonably arguable that the Chairperson had misdirected herself in respect of the burden of proof. Concerning the articles on honour killings and religious militancy referred to by the Applicant, Ms Ng argues that the Chairperson erred in taking those as “generic and general information” only and then concluded that the Applicant had failed to show he was personally at risk of torture if refouled. In support of this contention, Ms Ng refers to R v Director of Immigration. In R, one of the main issues was whether the Christian Applicant who had a relationship with a girl born to a family of Muslim extremists would be subjected to torture because of the abuse and attacks on religious minorities in Pakistan. In that case, although the relevant reports observed that religious minorities faced unprecedented insecurity and persecution from the extremists, the adjudicator, however, considered that the reports did not focus on the applicant personally and therefore did not assist his torture claim. As a result, L Chan, J found it arguable that the adjudicator had left out the material issue of the country conditions from his consideration. In the present case, the Applicant’s abusers are members of the Taliban (or their associates). In the Questionnaire, the Applicant provided the description that the Taliban “continues to threaten and undermine stability throughout much of Pakistan”. Similarly, when assessing the Applicant’s claim, the Chairperson pointed out that judicial notice could be taken that the Taliban are fighting the Pakistani government and as such, the Taliban could not be regarded as public officials. Therefore, the factual matrix here is quite different from that in the case of R. Moreover, in the present case, the Chairperson did not dismiss outright the relevance of the articles referred to by the Applicant. It was after she had considered the same did she then conclude that, in the Applicant’s case, there was no evidence to link the acts of the Taliban with the state of Pakistan. In the circumstances, and reading the Decision in context, I do not find it reasonably arguable that the Chairperson had failed to apply the country of origin information to the facts of this case. Now, concerning the claim that the Chairperson’s decision is irrational given her acceptance of the Applicant’s version, I have these observations. No doubt, the starting point is the Chairperson’s statement that she was prepared to accept the Applicant’s account. However, it is also the Applicant’s case that although, according to a message related to his father, a Fatwa had been issued against him by the Taliban, the existence of such was not reported to the Pakistani police. Therefore, the Chairperson’s comment that “The allegation that a Fatwa was issued rested solely on an assertion made by the Appellant.” had to be read in context. In fact, the Chairperson had specifically mentioned in the following paragraph that there was no evidence that the police knew about the Fatwa. Thus, the comment was no indication of any rejection of the Applicant’s account. It was made based on the Applicant’s own story. Afterwards, the Chairperson then examined the relevant Country of Original Information (“COI”) Reports and observed that a Fatwa is merely an advisory opinion without an executive branch to carry out the ruling and it is up to the individual to decide whether to ignore it or to take it seriously. Further, a Fatwa could be declared invalid by the state and its reach would depend on personal recognition. It was against such a background and after considering the Applicant’s claims, including police inaction; his sexual relationship with the girl; the rumour that he had sexual relationship with 20 Afghani women; the death threats issued to the personnel of the Applicant’s office in relation to the survey on illegal brick making activities but none in relation to the adultery rumour; and the limited evidence about the Fatwa or about those who had been instructed to carry it out, that the Chairperson observed at paragraph 58 that “There is no, or no sufficient evidence that the Fatwa exists.” Therefore, bearing in mind all the relevant matters, I do not consider it reasonably arguable that the Chairperson’s finding that there was no personal risk to the Applicant is inconsistent with her acceptance of the Applicant’s story. Nor was it an irrational decision. In respect of the alleged murder of the Applicant’s father and the disappearance of his brother, the Chairperson could not, as accepted by Ms Ng, have predicted those. As they were not matters before the Appeal Board, the Chairperson could not be criticized for having failed to take those into account when assessing the Applicant’s personal risk. In short, I refuse to grant leave in respect of this ground. Ground 7 : Policy Ground This ground can be dealt with shortly. In RI, the Applicant sought to have an extension of time to amend the Form 86 so as to challenge not only the Adjudicator’s rejection of his Petition against the Director’s determination of his torture claim, but also the Director’s refusal to consider his CIDTP and Refugee claims. The Court of Appeal, when refusing leave to appeal, observed that there had not been any substantive determination of the said claims of the Applicant and as such, it was premature for the court to entertain such claims. In the present case, Ms Ng sought to distinguish RI by submitting that the Applicant in that case had already applied to be re-screened on new grounds and also that the Applicant had sought to have an extension of time to amend the Form 86, both of which were not the case here. Further, Ms Ng contends that as the Applicant’s claim for non-refoulement protection made on 4 September 2006 was an “all-in” claim, any determination by the Director/Appeal Board which focused only on the torture claim without considering the Applicant’s CIDTP and Refugee claims was unlawful and should be quashed. Ms Ng submits that, therefore, RI was “wrongly decided insofar as it establishes a general principle”. I should first deal with the screening on new grounds. As pointed out by Ms Cheung for the Secretary, the Applicant in the present case had, on 25 June 2014, filed a claim for CIDTP screening, the processing of which is still pending. Therefore, there is no material difference between the Applicant’s position here and that of the Applicant in RI. In respect of the Form 86, clearly, whether an amendment is sought in the present case is not of much importance. The essence remains this : whether the Applicant’s claim is still pending determination by the Director. If so, then the application for leave is premature. Before leaving this point about the Applicant’s CIDTP claim, I should mention that in her submissions, Ms Cheung raised that there might not have been full and frank disclosure in the Applicant’s ex parte leave application as the documents evidencing the Applicant’s CIDTP claim and the Director’s reply were absent from the hearing bundle. At the hearing, Ms Ng offered her apology to the court and informed that the absence of the Applicant’s letter was due to a slip on their part. In respect of the Director’s reply, Ms Ng stated that the document was not available from the data access system and they were not aware of its existence until Ms Cheung arranged for it to be annexed. In reply, Ms Cheung confirmed that as the Director’s letter was a computer-generated document, it was not included in the data system. In the circumstances, it does appear to me that the absence of the documents from the bundle was a slip rather than any deliberate act and I shall take this disclosure matter no further. Now, concerning Ms Ng’s contention that RI was wrongly decided, that is certainly not a matter which I could deal with. In fact, Ms Ng confirms that her submission on this point is really to put down a marker, rather than suggesting that it is appropriate for this court to address the issue. In short, I find nothing in Ground 7 which would make it a reasonably arguable ground. Conclusion For the reasons set out above, I refuse to grant leave on Grounds 2, 5 and 7. As earlier indicated to the Applicant’s legal representatives, leave is granted in respect of Grounds 1, 3 and 4. (Anthea Pang) Judge of the Court of First Instance of the High Court Ms Margaret Ng, instructed by M/s Daly & Associates (assigned by the Legal Aid Department), for the Applicant The attendance of the 1st Putative Respondent is excused Ms Leona Cheung, Deputy Principal Government Counsel (Ag), for the 2nd Putative Respondent and the Putative Interested Party