MASIH WAQAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1350/2019

[2024] HKCFI 1966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1350 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Pakistan who entered Hong Kong illegally on 22 March 2015 and subsequently surrendered to the Immigration Department on 2 April 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by certain Muslims for converting his religion from Islam to Christianity and/or prosecuted by the Pakistani authorities under the blasphemy law. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Tehsil Mian Channu, District Khaniwal, Punjab, Pakistan in a Christian family and where the population of his home village was about half Muslims and half Christians.

3.  After leaving school the Applicant worked as a waiter in his home village, and in 2010 he moved to Islamabad to work in a restaurant where all his co-workers were Muslims.

4.  Gradually under the influences of his Muslim co-workers, the Applicant in late 2010 started to practice Islamic religious rituals together with his Muslim co-workers and eventually became a Muslim.

5.  In 2013 two of his co-workers Khan and Tanoli invited him to follow them to join the military training for the fight against India in Kashmir, but the Applicant did not want to participate in any fighting and declined their request, and to avoid them he then left Islamabad and went to Rawalpindi to work in a fast-food restaurant.

6.  In July 2014 he returned to his home village to visit his family, during which he decided to convert his religion to Christianity by undergoing a formal Baptism, and upon his return to Rawalpindi, he stopped his practice of praying and worshipping at the mosque with his Muslim co-workers which caused suspicions amongst them of him having converted his Islamic religion to Christianity, and eventually some of them confronted him and accused him of abandoning Islam and threatened to kill him if he failed to convert his religion back to Islam.

7.  To avoid such threats the Applicant therefore left Rawalpindi to return to his home village, whereupon he started to receive threating calls from his former Muslim workers, and one day when he was away from home and was later told by his family that some Muslim men had come looking for him, the Applicant became fearful for his life and fled to Lahore to take shelter in a friend’s place, and in March 2015 he departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 May 2018 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 26 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Muslims or the authorities over his religious conversion from Islam to Christianity upon his return to Pakistan as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those Muslims to seriously harm or kill him or of any adverse interest of the authorities to charge or prosecute him under the blasphemy law other than his own speculations and the fact that he was able to leave the country without any problem, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi or Faisalabad where it would be difficult if not impossible for anyone to locate him.

10.  On 10 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 16 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 March 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found no evidence that the Applicant or any members of his family who are all Christians had ever been harmed by any Muslims or prosecuted by the authorities under the blasphemy law other than his own speculations, that the Applicant is not a credible witness for producing a letter from a priest from his home village falsely asserting that his home had been attacked by Muslims, and that according to relevant COI that state protection would be available to the Applicant as Christianity is one of the 2 largest minority religious groups in Pakistan, and that even if his claimed risk were real that it would be confined to the local area where he and his family had lived that he may relocate to other areas of the country with a large population of Christians and without any risk of being located by those Muslims that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 20 May 2019, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as amended for his intended challenge, of which he confirmed at the hearing:

(1)  That the Adjudicator erred in his assessment of the risk of future harm that the Applicant may face in Pakistan;

(2)  That the Adjudicator’s assessment of the Applicant’s credibility was procedurally unfair and in defiance of established principles;

(3)  That the Adjudicator failed to undertake a full fair and balanced review of the relevant country conditions and information in assessing risk of torture, CIDTP and persecution risk in the Applicant’s claim; and

(4)  That the Adjudicator reached an unreasonable conclusion that the persecution risk in the Applicant’s claim could be “cured” by internal relocation as well as an incorrect assessment of the viability of internal relocation alternatives in the Applicant’s claim.

13.  In support of these proposed grounds the Applicant in his Amended Form 86 made various submission and arguments as to how the Adjudicator had erred in his assessments as to the credibility of his claim, or of the risk of future harm to him if refouled to his home country, or of the availability of internal relocation to negate such risk, as well as failure to undertake any or sufficient review or inquiry into the relevant COI in the determination of the Applicant’s claim (see [14] – [56] of the amended Form 86, of which I propose for the present purpose to just focus on the last 2 complaints of the Applicant.

14.  For these 2 complaints, the Applicant submits that the Adjudicator failed to conduct any inquiry into his claimed fear of risk of persecution from the Muslim community over his conversion of his religion from Islam to Christianity and of prosecution by the authorities under the blasphemy law which may attract a death penalty, and instead just focused on the religious conflicts between the Muslims and the Christians in general which led to the suggestion that the Applicant can relocate to areas with large Christian population to minimize any conflicts with the Muslims, but without looking into the relevant COI available before the Board which show alarming information about blasphemy charges and trials by the Pakistani authorities against people for having converted their religion from Islam to Christianity as reported by the US State Department, and as such the Board had failed to recognize the fact that internal relocation would often be futile to protect such a claimant from persecution or prosecution by the State in Pakistan under the blasphemy law.

15.  It is clear to me that the Applicant had stated in his NCF and as recorded in the Director’s decision that his claimed fear of harm is not of being a Christian per se, but rather his conversion from Islam to Christianity that he claims to actually pose a much bigger threat to him of persecution by the Muslim community and prosecution by the Pakistani authorities under the blasphemy law, a real and constant religious conflict in Pakistan, and as supported by the COI relied on by the Applicant and referred to by the Director in his decision, and which were available before the Board in the Applicant’s appeal (see [11] of Director’s decision and [42] – [44] of the Applicant’s Form 86).

16.  In the Board’s decision, while the Adjudicator did not find the Applicant to be a credible witness over his production of a letter from a priest which was found to have falsely asserted that Muslims had attacked his home three times (see [50a] of the Board’s Decision), of which the Applicant also argues as procedurally unfair under his proposed Ground (2) as noted above, and of which I am also of the view as reasonably arguable, that it seems the Adjudicator did not take any real issue as to the Applicant’s claim of religious conversion from Islam to Christianity, but failed to proceed to conduct any review or inquiry into the relevant COI or at least those relied on by the Applicant and available before the Board so as to properly assess his claimed risk of persecution by the Muslim community and/or prosecution by the Pakistani authorities under the blasphemy law due to his religious conversion.

17.  As such, it is also in my view reasonably arguable that the Adjudicator erred in his assessment of internal relocation being available to the Applicant to minimize or negate such risk of prosecution by the Pakistani authorities under the blasphemy law upon his return to Pakistan, as national authorities are presumed to act throughout the country and hence there is the presumption in principle that an internal flight or relocation alternative will not be available: Januzi v Secretary of State for the Home Department [2006] 2 AC 426; TK v Jenkins & Anor [2013] 1 HKC 526.

18.  In the premises, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the basis of his proposed grounds, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.  Accordingly, I grant leave to the Applicant to apply for judicial review based on his proposed grounds, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1