S v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 394/2017

[2018] HKCFI 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 394 OF 2017

___________________

___________________

___________________

J U D G M E N T

___________________

1.  This is an application for leave to apply for judicial review of a Torture Claims Appeal Board decision. This applicant is a Pakistani national who entered Hong Kong illegally on 8 February 2012 and later lodged a non-refoulement protection claim. This claim was rejected by the Director of Immigration (“the Director”) on 30 October 2015 and 3 November 2016 (the latter date relates to the BOR 2 risk claim). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 15 November 2016 and rejected it on 15 February 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017.  There is a question of delay; this application should have been filed within three months of the date of the TCAB decision, by 15 May 2017 at the latest.  It is nearly two months late and two reasons have been given by the applicant for the delay.  I will deal with this later.  The applicant also applied for legal aid but it was refused as was his appeal against that decision.  Counsel and solicitors appear on behalf of the applicant in this application on a pro bono basis.

3.  This application was heard together with HCAL 367/2017 at the request of the solicitors because, although not connected, both the applicants were Ahmadi Muslims, the grounds were very similar and the adjudicator of the TCAB the same.  Both the appeals were considered by the adjudicator at about the same time, they certainly overlap as that appeal was heard about three weeks after this appeal.

Background

4.  The applicant was born in 1972 in Pakistan.  He and his family are Ahmadi Muslims and members of the minority Ahmadi religious community.  The applicant joined the army in 1990 and retired from it in 2008; returning home.  He hid his faith throughout his army career.  Upon his return home he started to work at a factory in 2009.  He then became a target of persecution by a local Sunni Muslim leader who found out his faith and his religion.  That leader approached him with three other men and assaulted him; threatening to kill him if he did not convert to the majority Sunni Muslim faith.  The applicant did not return to work in that factory and hid at home for a month.

5.  He then began to work as a security guard at an Ahmadi mosque in Durmiyal.  In early 2010, 70 members of Khatem‑e‑Nabuwat (a vehemently anti-Ahmadi organisation) surrounded the mosque shouting anti-Ahmadi slogans and threatened to kill all Ahmadis if they did not convert to the Sunni Muslim faith.  The applicant was threatened directly; he was told if he continued to guard the mosque he would be killed.  This frightened the applicant enough that he moved to Rawalpindi.

6.  In Rawalpindi, the applicant again worked as a security guard for another Ahmadi mosque until early 2012.  Every week on a Friday, approximately 250 members of Khatem-e-Nabuwat would surround the mosque and chant anti-Ahmadi slogans with many of them carrying guns.  The applicant would bear the brunt of the threats and aggression because he was the security guard.  They were particularly hostile to him as his job was to warn the Ahmadi inside the mosque when they were coming.  When the men approached the mosque the applicant and other worshippers would lock themselves in the Mosque.  The applicant felt under great mental strain and lived in constant fear that he would be harmed or killed by Sunni Muslims.  There were also attacks on Ahmadi mosques in Lahore where terrorists shot and killed worshippers and bombed the mosques; a security guard was even killed.  The applicant eventually decided to leave Pakistan for Mainland China, before entering Hong Kong.

The TCAB decision

7.  The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A (2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator of the TCAB is required to treat the appeal/petition as a rehearing.  It requires a fresh and independent decision of the claim by the adjudicator; X v TCAB HCAL 143/2013, 4 September 2014 Zervos J §29.  The adjudicator does not discharge an appellate role.  The applicant gave evidence at the hearing and submitted new evidence.  He gave evidence of his nephew, also an Ahmadi, being granted temporary asylum in December 2014 in the Netherlands.  The duty lawyer also wrote to the TCAB on the 15 December 2016, one month after the hearing date, informing the adjudicator of a massive arson attack on the Ahmadi mosque in Durmiyal where the applicant had been a security guard.  He informed the adjudicator that his wife and family had to go into hiding because of their faith.  There was a letter from the office of the Ahmadi leaders of the Chakwal district asking for security to be implemented.  The duty lawyer was asking the adjudicator to take the new reports and evidence into consideration during his deliberation.  The adjudicator did not indicate if he accepts or rejects the reports.

9.  The adjudicator identified the applicant as having three sources of fears; the Muslims from his home area who tried to convert him to be a proper Muslim when he worked at the factory, those Sunni Muslims who threatened him when he worked as a security guard at the Durmiyal mosque between 2007 and early 2010 and the Sunni Muslims who threatened him when he worked as a security guard in second mosque in Rawalpindi between August 2010 and January 2012.

10.  From submissions of counsel, clearly religious persecution was relied on as a ground and the authority of MN and others (Ahmadis-country conditions –risk) Pakistan CG [2012] UKUT 389 (IAC) (14 November 2012) as well as UK Home Office Country Information and Guidance – Pakistan: Ahmadis (May 2016) was specifically referred to in written submissions.

11.  One of the grounds of appeal was that the Director did not consider religious persecution; a failure to take into account religious persecution of Ahmadis.  The applicant’s duty lawyer wrote in his submissions to the TCAB that the Director failed to analyse the persecution faced by the Ahmadi Muslims in Pakistan despite the COI information indicating that they were subject to serious discrimination/oppression in Pakistan.  There was a failure to consider the applicant had a fear of persecution because of his religion.  The applicant’s claim was not to be treated as an ordinary personal dispute targeting the applicant only.  It was submitted the Director erred in finding that the claim was only a private and personal dispute.  Direct reference was then made to the authority of MN and the Country Guidance. Counsel submits this was all ignored by the adjudicator.

12.  From a reading of the decision dated 15 February 2017 the adjudicator rejected the applicant’s claim because he found him unreliable. He found “the appellant’s thesis, which forms the basis of his claim, untenable.  For other reasons I also find him to be unreliable.”  He goes on to give several reasons for finding the applicant’s thesis untenable.  By thesis I assume the adjudicator means his evidence, a thesis is not what the applicant came to Hong Kong to present.

13.  Those reasons he gives are in paragraphs 11 to 16 and the adjudicator concludes in paragraph 17 that he found the applicant unreliable.  He found the applicant’s “picture regarding Ahmadis in Pakistan fails to support his claim.  I placed no credence in his story, and there is nothing to support his claim, hence the appeal is dismissed, … I am aware that even if a large part of the appellant’s story is not believed, he may still face harm on return, but as he is dishonest and unreliable he has failed to discharge the burden of proof despite the standard required being relatively low.”

14.  The adjudicator then went on, despite his conclusion, for the sake of completeness to consider the four applicable grounds of a non‑refoulement claim as if the applicant’s evidence was truthful. He concluded that even on his own alleged set of facts he would fail to succeed.  He found on the COI information that there was State protection available for the applicant if he was at risk.  He also found that internal relocation was a viable option for the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.  In an application for leave to apply for judicial review, the court is to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar (2004) 7 HKCFAR 187.  In addition, the court will also rigourously examine and anxiously scrutinise the decision-making process and the reasons by which the decision-maker reached his decision; did it satisfy the enhanced Wednesbury test.

16.  Mr Wong, counsel for the applicant identifies the central issue in this application for judicial review succinctly.  The applicant belongs to a faith that has been identified by the International community as being persecuted for their beliefs; the persecution is worst in Pakistan.  The UK has issued country guidance relating to the Ahmadi Muslims.  That country guidance was last updated in 2012 from 2008.

17.  Mr Wong identifies the issue here as a failure by the TCAB to take the proper approach in assessing the persecution risk of an Ahmadi according to that country guidance which takes into account the current situation in Pakistan.

18.  He submitted the TCAB should take into account UK country guidance decision “given the near identical issues in processing a non-refoulement claim”.  The adjudicator has failed to follow that approach set down in the case of MN and Ors.  This is ground 1.

19.  The adjudicator is accused of cherry picking from Country of Origin Information (“COI”) reports.  He is accused of not considering the application with the necessary high standard of fairness and that includes failing to give adequate reasons for rejecting information highly favourable to the applicant’s claim.  Therefore, his decision is Wednesbury unreasonable in relation to the persecution risk.  This is ground 2.

20.  Lastly, the TCAB took into account irrelevant considerations and erred in law in relying upon section 37ZD of the Immigration Ordinance Cap 115 to draw an adverse inference against the applicant in considering his persecution risk.  This is ground 3.

Ground 1

21.  Mr Wong takes no issue with the adjudicator’s finding that the applicant has no claim under the torture, BOR 3 or BOR 2 grounds.  His application centres on the persecution risk he says the applicant faces by virtue of his Ahmadi faith and as evidenced by his claim.  If the adjudicator accepted the applicant was an Ahmadi Muslim, and there is no indication he did not then he should have considered and applied the country guidance to the applicant.  There is no indication the adjudicator rejects the claim or submission that the applicant feared persecution because of his religion.  The duty lawyer made that country guidance known to the adjudicator in his written submissions and during the appeal hearing; in fact, the adjudicator quoted from it in his decision but not in its full and proper context.

22.  Mr Wong submits UK country guidance decisions have importance and have been adopted here, he quotes Cheung CJHC in ST v Betty Kwan (2014) 4 HKLRD 277 at paras 60 and 65.  They have been fully adopted into UK jurisprudence and failure to follow country guidance cases there can amount to an error of law in the absence of significant factual changes; see R (Iran) & Ors v Secretary of State for the Home Department 2005 EWCA Civ 982.

23.  Ahmadis in Pakistan face a risk because there is actually legislation that restricts the way in which they are able to openly practice their faith.  There is legislation that prohibits preaching and other forms of proselytising.  They cannot call their places of worship mosques or their leaders Imams.  They cannot even call themselves Muslims or refer to their faith as Islam.  They can be fined or imprisoned and if blasphemy is found they can be sentenced to death.  Ahmadis are often subject to attacks by non-State actors from the majority Sunni Muslim population.

24.  The MN case states they have been practising their faith on a restricted basis either in private or in a community with other Ahmadis without infringing domestic Pakistan law.  The case suggests the first question the decision-maker must ask is whether the claimant genuinely is an Ahmadi.  They are usually registered with an Ahmadi community in Pakistan and then in the UK after they arrive there.  There should be proof of their activity. This may be proof enough.

25.  The second question involves an enquiry into the applicant’s intentions or wishes as to his faith if returned to Pakistan.  There must be an enquiry into how important it is to the religious identity of the Ahmadi concerned to be able to openly practice their faith.  The burden is on the applicant to demonstrate that any intentional wish to practice and manifest his faith openly which is not permitted by the Pakistan Penal Code is a genuine intention and of particular importance to preserve his religious identity.

26.  Ahmadis who cannot show that they practiced their faith at all in Pakistan or that they did so in anything other than the restricted basis are in general unlikely to be able to show that their genuine intentions are to practice and manifest their faith openly on return; they are unlikely to discharge the burden of proof that they need protection.  Those that do discharge that burden will likely be in need of protection.

27.  The MN case also discusses the option of internal relocation, previously considered to be available in Rabwah.  It is now not a reasonable option for a claimant who genuinely wishes to openly practice their faith because of the anti‑Ahmadi legislation in Pakistan.

28.  The submission is that the adjudicator was specifically referred to it yet failed to consider that case and the country guidance that came from it.  That tribunal examined in great detail available factual and expert evidence, the actual situation in Pakistan in terms of the risk of torture and persecution to Ahmadis and US Department of State reports and the such like.  The adjudicator should have considered it, applied it to the applicant and his situation.  If the adjudicator had rejected it, he should have given reasons for not following or disagreeing with the UK country guidance.  This is the basis of ground 1.

29.  In fact, Mr Wong did not interpret the adjudicator’s decision the same way as I did.  In that the adjudicator first dismissed the entire claim on the basis that the applicant was not credible, was dishonest and therefore not a genuine claimant before he went on to consider the four applicable grounds on the basis that the applicant’s evidence was true before he dismissed the claim again.  He concluded that even on his own alleged set of facts the applicant would fail to succeed.

30.  What is unclear is what the adjudicator does not believe and why he finds the applicant dishonest.  It would seem he accepts the applicant is an Ahmadi.  He does not make clear whether he believes he was working at the Ahmadi mosques.  He does not make clear whether he believes those Ahmadi mosques were targeted.  He does not make clear whether he believes the applicant was threatened whilst working at the Ahmadi mosques by Sunni Muslims because of his faith.  In paragraphs 11 to 16 reasons are given for finding the applicant not reliable but they do not refer to his evidence as it relates to what happened to him in Pakistan.

31.  The adjudicator makes a finding that after listening to the applicant he found him dishonest and his story unreliable but he does not give full reasons for those findings.  The applicant cannot be sure what the adjudicator did not believe.

32.  It would seem that if Mr Wong is correct and the adjudicator should have considered the case of MN and the country guidance relating to Ahmadis and if the adjudicator accepted the applicant was an Ahmadi then he should have asked those questions first and then considered the credibility of the applicant.  I agree this is reasonably arguable.

33.  I note the Director did in his decision consider the country guidance case of MN as promulgated by Mr Wong and applied the questions in it to this applicant.  He found there to be no evidence adduced to support the applicant had been practising his religious faith beyond his privacy in Pakistan before he left; meaning he was not preaching openly or displaying an open manifestation of his religious faith.  The Director made a finding the applicant had essentially not shown he required protection according to the country guidance case test questions.  The Director considered this when assessing the applicant’s persecution risk, see para. 111 of his decision dated 30 October 2015.  The adjudicator nowhere adopts or even refers to this assessment.  If he had, this ground may have had little or no merit.

Ground 2

34.  Ground 2 is an accusation of cherry picking on the part of the adjudicator.  His only reference to the case of MN is to quote one paragraph indicating Ahmadis have been and are safe if they practice their faith in private or in their own communities (para 28(ii)) and Mr Wong submits it “portrays an inaccurate picture of the conclusions contained in those reports”, in other words, cherry picking.  Mr Wong suggests the adjudicator’s approach here falls squarely within the type of cherry picking criticised by McWalters J (as he then was) in AM Director of Immigration & Anor (2014) 19 HKPLR 89 paras 95-106.

35.  Considering the contents and conclusions of the case of MN where that paragraph quoted by the adjudicator comes from and the fact nothing else from that case is referred to by the adjudicator despite it being quoted at him by the duty lawyer (and by the Director), there is merit in Mr Wong’s submission in this ground.

Ground 3

36.  In ground 3, Mr Wong takes issue with the adjudicator’s assertion that the test for assessing persecution risk is “virtually the same” as that for assessing BOR 3.  There is a second limb to this ground and that is he also takes issue with how the adjudicator takes into account the credibility of the applicant when assessing the persecution risk.

37.  It would seem the credibility or lack of, comes from him entering Hong Kong illegally and his answer that he did not know such entry into Hong Kong was unlawful although he knew it was not a normal way to go from the Mainland into Hong Kong.  The adjudicator was of the view that this answer showed he was dishonest.  The adjudicator found him “dishonest and his story unreliable” and this included; why he left Pakistan, why he chose Hong Kong, why he left in the absence of having suffered serious injury, especially when he had not even encountered anything hostile for over 15 months before leaving Pakistan, why he would pay an agent alot of money and travel 5,000km to Hong Kong, why did he not raise any claim when he arrived in Mainland China and why he would sneak into Hong Kong illegally.

38.  Mr Wong says these issues relating to credibility should not be taken into account when assessing the applicant’s persecution risk.  The applicant can illegally enter Hong Kong but still face the risk of persecution based on religion and State sanctions for merely practising his faith in Pakistan.  If that was the intention of the adjudicator, then there may be merit in that submission.

39.  To invoke the protection of Article 3 or BOR 3 risk, the applicant has to meet two requirements.  The adjudicator here has stated the test for assessing the persecution risk is virtually the same as that for assessing BOR 3.  He also says when assessing persecution risk in para 40, I quote “the appellant has (not) suffered severe injury or serious harm which would place him within the criteria of persecution.”  This statement cannot be accurate; an applicant does not have to have suffered severe injury or serious harm in the past in order to bring himself within the definition of persecution.  It is true that the most recognised form of persecution is the infliction of physical harm including torture and kidnapping as best examples but not the only form.

40.  The applicant must establish he has a well-founded fear at the time his claim is being assessed; good grounds for fearing persecution in the future.  He must establish that he has a subjective fear of persecution and also that the fear is well-founded in an objective sense.  Evidence of past persecution is one of the effective means of showing that a fear of future persecution is objectively well-founded.  If there is a pattern of long‑standing persecution, then there is a likelihood that the behaviour will continue.  However, severe injury or serious harm is not a necessary factual element to establish persecution.  This ground is reasonably arguable on both limbs.

41.  Therefore, having heard this ex parte application and submissions, I find the three grounds reasonably arguable and I give leave to the applicant to judicial review the decision of the Torture Claims Appeal Board dated 15 February 2017.

Extension of time, Order 53 Rule 4 (1)

42.  The legal principles for extension of time have been set out in AW v Director of Immigration & anor CACV 63/2015 3 November 2015 para 27, “while in the public law field, it is essential that the courts should scrutinise with care any delay in making an application… As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled”.  Significant factors that require consideration include the length of delay, the explanation offered for the delay, the merits of the substantive application and the question of prejudice to the applicant as well as public administration.

43.  In this case, the applicant explains that he was applying for an Anonymity Order from the High Court and also at the same time applying to the High Court to waive the fee of this application with the help of a solicitor acting on a pro bono basis when the three months expired. He was not sitting back but proactively pursuing this application.  The delay was minimal and of little prejudice.  As I have decided his application is reasonably arguable, I therefore grant an extension of time for the application for leave to apply for judicial review.