TK ( Applicant ) (Mr Philip Dykes, SC and Mr Nigel Bedford, instructed by Messrs Barnes & Daly) Respondent (and Counsel):

Transcription

1 Case Summary for: TK V MICHAEL JENKINS ESQ & DIRECTOR OF IMMIGRATION 1 Court level: Court of First Instance Judges: Hon Lam J Applicant (and Counsel): TK ( Applicant ) (Mr Philip Dykes, SC and Mr Nigel Bedford, instructed by Messrs Barnes & Daly) Respondent (and Counsel): MICHAEL C JENKINS, ESQ and Director of Immigration (Mr Paul Shieh, SC and Ms Grace Chow, instructed by the Department of Justice) Date heard: 14 and 15 September 2011 Date promulgated: 21 October 2011 Full text: ABSTRACT: Key words: judicial review, shift of burden of proof, state acquiescence and internal relocation, due diligence The Applicant challenged the decision of the Director and the Adjudicator to reject his CAT claim by way of judicial review. The court dismissed the Applicant s application. (Note this court s decision was appealed and heard in TK v. Michael C Jenkins, ESQ [2012] HKCA 502.) SUMMARY: Facts: The Applicant, together with a friend, entered into an agreement with an individual to purchase a plot of land in Pakistan. This individual, a local gangster, whose brother who was a member of the ruling party in Pakistan, refused to deliver the land after the payment was made by the Applicant and his friend. Following heated discussions, the individual and his gangsters acted violently towards the Applicant and [his friend] and the Applicant ran away, leaving his friend behind. That evening, the Applicant learned from a neighbor that his friend The Justice Centre is grateful for the assistance rendered by Kirkland & Ellis LLP on this case summary. 1 [2011] HKCFI 1513; HCAL 126/2010 (21 October 2011). 1

2 was killed by the gangsters. Fearing for his life as well, and fearing corruption on the part of the police, the Applicant fled to HK. The Applicant eventually lodged a CAT claim which was rejected by the Director. He further petitioned which was heard, and ultimately refused, by an Adjudicator. The Applicant sought to challenge the decision of the Adjudicator by way of judicial review. Issues: The Applicant argued that (i) the burden of proof shifted to the Director to show that the Applicant would not be subject to torture following a finding that there was a consistent pattern of gross, flagrant and mass violations of human rights in Pakistan, (ii) the Adjudicator erred in finding that no official of Pakistan was in any way concerned in, connected with, consented to or acquiesced in the threat exerted upon the Applicant and [the individual responsible for the Applicant s ill treatment] did not enjoy any status above the law with the consent or acquiescence of the State in that the Adjudicator failed to consider that the inadequacy of state protection amounted to state acquiescence and given that the Adjudicator accepted the futility of reporting to the police, and (iii) internal relocation was in any event not applicable to a CAT claim and due to the corruption and human rights violations in Pakistan, internal relocation was not an option. Judgment: The Judge dismissed the Applicant s application. Reasons for Judgement: Rejecting the Applicant s burden of proof grounds, the Court reiterated the established premise that while the CAT proceedings shall be regarded as inquisitorial in nature, the ultimate burden rests upon the Applicant. (paras 30, 33 and 35) Next, the Court considered the state acquiescence ground. First, the Court held that the wider scope of Article 3 of the European Convention ought not be implied into the CAT which excludes, unlike Article 3 of the European Convention, torture or inhuman treatment coming from a non-public officials. The Court did note, however, that there existed an exception where there was a complete lack of a central state authority and the torture was committed by quasi-governmental authority, but such are different circumstances to those of where there is a lack of reasonable state protection. (paras. 49 to 53) To provide guidance on the concept of state acquiescence generally, the Court then considered the due diligence test making reference to Nowak & MacArthur and para.18 of General Comment No.2 (24 Jan 2008) by the Committee against Torture. Against the due diligence test, the Court considered whether the local police [ ] ought to have grounds to believe that [the individual responsible for the Applicant s ill treatment] had been habitually involved in gangster activities and if that belief would have been sufficient to give rise to a case of state acquiescence for the conducts of the individual responsible for the Applicant s 2

3 ill treatment by reason of the breach of duty of due diligence. The Court concluded here that Adjudicator failed to make a finding regarding whether the breach of duty of due diligence and had he done so, the Court could have intervened based on Wednesbury grounds. (paras 56 to 58, 61) However, despite the fact that such submissions were not placed before the Adjudicator, the Court nevertheless concluded that based on the evidence as to the general condition of Pakistan and the doubt cast on the due diligence of the police authority [ ] as regards the futility of reporting the fraud and killing and the lack of adverse consequences for [the individual responsible for the Applicant s ill treatment] in respect of his behaviour, and having regard to the inquisitorial nature of the proceedings, the Adjudicator should at least have directed the Director to seek information from his counterpart in Pakistan in respect of the activities of the individual responsible for the Applicant s ill treatment. This, coupled with the Adjudicator s acceptance of the Applicant s evidence as to why he had fled Pakistan, led the Court to find against the Adjudicator s decision on this point. (paras 64, 67 to 68) The alternative ground for the Adjudicator to reject the Applicant s claim was based on the possibility of internal relocation. Here, the Court concluded that the crucial issues for the judicial review of a decision of an adjudicator 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. The Court concluded that the Adjudicator was correct to say that the alleged risk from the individual responsible for the Applicant s ill treatment was localized and it was not unduly harsh for the Applicant to relocate to other areas in Pakistan. The Adjudicator had not erred in law and the procedures adopted satisfied the high standard of fairness. (paras 87, 90 to 94) Subsequent Proceedings: The Applicant appealed to the Court of Appeal and the appeal was heard on 16 October 2002 and was dismissed by the Court of Appeal on 21 November See: TK v. Michael C Jenkins, ESQ [2012] HKCA 502. Legal Provisions considered: 1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Art General Comment No.1 adopted by the Committee against Torture on 21 November

4 3. European Convention on Human Rights, Article General Comment No.2 (24 Jan 2008) by the Committee against Torture 5. UNHCR Guidelines on Internal Flight or Relocation Alternative internal-flight-relocation-alternative.html Key Cases cited: 1. Secretary for Security v Sakthevel Prabakar [2004] HKCFA 43; [2005] 1 HKLRD 289 (8 June 2004): high standard of fairness 2. AS v Sweden, CAT/C/25/D/149/1999, UN Committee Against Torture (CAT): the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her circumstances 3. R v Home Secretary, ex p Bugdaycay [1986] UKHL 3; [1987] 1 AC 514: judicial review power of the court 4. R v Home Secretary ex p Adan [2000] UKHL 67; [2001] 2 AC 477: judicial review power of the court 5. RB (Algeria) v Secretary of State [2009] UKHL 10; [2010] 2 AC 110: enhanced Wednesbury approach 6. Mutombo v Switzerland No.13/1993: shift burden of proof 7. GRB v Sweden Communication No.83 of 1997: whether the non-refoulement obligation under Article 3 extends to a person who might risk pain or suffering inflicted by a nongovernmental entity without the consent or acquiescence of the government 8. R (Bagdanvicius) v Secretary of State [2005] 2 AC 668: interpretation of acquiescence in Article 1 of the CAT 9. Soering v United Kingdom [1989] ECHR 14; (1989) 11 EHRR 439: an implied obligation of non-refoulement 4

5 10. HLR v France [1997] ECHR 23; (1997) 26 EHRR 29: whether article 3 also apply where the danger emanates from persons who are not public officials when the State authorities are not able to obviate the risk by providing appropriate protection D v United Kingdom [1997] ECHR 25; (1997) 24 EHRR 423: whether article 3 also apply where the danger emanates from persons who are not public officials when the State authorities are not able to obviate the risk by providing appropriate protection HMHI v Australia Communication No.177 of 2001: State s CAT obligation under Article Elmi v Australia Communication No.120 of 199: exception where State authority was wholly lacking and the acts were committed by quasi-governmental authority Velasquez Rodriguez v Hondura: whether due diligence test applied in the context of State acquiescence BSS v Canada Complaint No.183 of 2001: internal relocation Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426: reasonableness of internal relocation E v Secretary of State for the Home Department [2003] EWCA Civ 1032; [2004] QB 531: reason for rejecting Hathaway/New Zealand approach Ranganathan v Canada [2001] 2 FC 164: distinction between the protection afforded by the Refugee Convention (and by analogy the CAT) and humanitarian considerations nathan%202001%202%20fc%20164.pdf 19. Thirunavukkarasu v Canada (1993) 109 DLR (4th) 682: standard of proof, balance of probabilities GH Iraq v Secretary of State for the Home Department [2004] UKIAT 00248; [2004] Imm AR 707: who bears burden of proof regarding internal relocation 5