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

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

Following;

Leave to apply for Judicial Review be refused

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”). 

2.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

3.  The Applicant is a Pakistani national, now aged 45.  He came to Hong Kong as a visitor and overstayed since 13 June 2002.  He was arrested on 14 January 2008 for remaining in Hong Kong illegally.  On 22 January 2008, he raised a Torture Claim.  Subsequently, his claim was converted into a non-refoulement claim and assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated in detail here.  The hyperlink to the Board’s Decision is included below[5] for reference. 

5.  The Applicant claims that he was born into a Christian family in Sahiwal in Punjab and brought up as a Christian.  On the evening of Christmas Day in 1999, while he, his family and friends were celebrating at a tent erected on his property, about five to six Muslims from the Jamiat-Ulema-E-Islam (“HUI”) approached and told them to stop because their prayers were disturbing the Muslims.  The Applicant tried to explain to the Muslims that they must pray and celebrate on Christmas Day.  An altercation ensued (the “Christmas Day altercation”).  On the early hours of the following morning, eight men from the JUI office broke into the Applicant’s house and assaulted the Applicant and his family.  The Applicant was stabbed in the chest and cut in his foot.  The men threatened to return and burn down his house. The Applicant was hospitalized for five or six days and required 40 stitches for his foot.  While in the hospital, he was informed by his cousin that his attackers had filed a First Information Report (“FIR”) accusing him of blaspheming against the Prophet and defaming Muslims.  He did not approach the police as he did not believe the police would help him.  He fled to Faisalabad to stay with an uncle for several months.  During that time, his family told him that the JUI had come to his house looking for him and harassing his family for refusing to disclose his whereabouts.  He moved from place to place and kept a low profile until early 2002, when he fled to Macau and from there he entered Hong Kong.  On 5 July 2018, he married a Chinese Catholic woman. 

6.  In gist, the Applicant claims he is in fear of detention and torture by the Pakistani authorities and/or members of the Muslim community due to the outstanding FIR against him for blasphemy and also fears being persecuted and/or subjected to cruel, inhuman, degrading treatment and punishment (“CIDTP”) on account of his real and/or perceived religious belief and/or his membership of a particular social group.  He also fears risk of future blasphemy charges being laid against him; the inability to obtain a fair trial and/or lack of an independent and competent court in relation to the blasphemy charges; the widespread societal discrimination and intolerance towards Christians; prison conditions in Pakistan that amount to CIDTP which may be life threatening.  In view of his marriage with a Chinese Catholic woman in Hong Kong, he also fears that would increase his and his wife’s risk of being targeted, if returned to Pakistan.   He does not consider state protection available to Christians in Pakistan.  He believes internal relocation infeasible because Pakistani state has acquiesced to the persecution of Christians.

The finding of the Board

7.  The Board considered the Applicant’s evidence carefully.  It gave him ample allowance for passage of time, his health conditions, anxiety and the difficulties of availing himself of the evidence.  However, it has serious concerns about several important and material aspects of the Applicant’s claims that gave rise to doubts about the reliability and credibility of his account. It devoted sixteen pages of the Decision analyzing the Applicant’s evidence and assessing his credibility[6]. The analysis includes a very condensed summary of the evidence and reasons for its finding of the Applicant’s credibility.  These will not be repeated here. 

8.  It found the Applicant to be an unreliable and poor witness overall.  It has concerns about the reliability of his evidence in general and not just limited to his material claims.  A blatant example is that he listed his mother’s name as ‘Ruth Khan’ but provided a support letter from Rev Naimat John of Christ Pentecostal Church of Pakistan (“CPCP”), listing her name as ‘Ruby Khan’.  The Applicant’s explanation is not that it was a typographical error, but that his mother’s given name is in fact ‘Ruby Ruth’.  He put the blame for the inconsistency on his lawyer for recording it inaccurately.  But in none of the supporting documents, including what is claimed to be his mother’s Pakistani birth certificate, is his mother referred to as ‘Ruby Ruth’.  Rather the documentation only refers to her as ‘Ruby’ or various spelling transliterations.  While this matter does not go to his material claims, it does raise questions about the general reliability of his evidence.  It also has an impact on the evidence about his personal and his Christian identity.

9.  While claiming to have been born into a Christian family, up until the oral hearing before the Board, the only piece of identity documentation he provided was his Pakistani passport, which lists his religion as Muslim.  His first explanation was that his father’s friend who assisted him to apply for a passport listed his religion as Muslim to avoid problems when leaving the country.  But, at the second hearing, he said it was the agent he engaged to help him leave the country, not his father’s friend, told his father to list his religion as Muslim so that he would not have any trouble at the airport due to the blasphemy accusation.  That is a minor inconsistency.  What the Board was concerned is the fact that it was the Applicant’s claim that ‘everyone’ would know of the blasphemy charge against him and as such had the airport officials been aware of any blasphemy allegations against the Applicant, it would have been possible for them to identify him by his name, date of birth, national identity card number which are listed in his passport, regardless of what religion was listed in that document. This cast serious doubts on the credibility of his case of having a blasphemy charge laid against him.

10.  What then aggravated the Board’s concern is the Applicant’s evidence at the end of his second hearing that he had another Pakistani identity document, which he described as a ‘B Form’ on his Pakistani national identity card, which shows his maternal grandparents’ Christian names and which proves his Christian identity.  But this ‘B Form’ was never produced in his early claim under the Convention Against Torture (the “CAT claim”) which he lodged in 2008 or until his present USM claim eleven years later.  The Board found it difficult to believe that the Applicant or his legal representative would not have considered it important to provide as much evidence of his claimed Christianity as possible.  Then, when he subsequently produced the ‘B Form’ after the second hearing, it was found to be his mother’s ‘Birth Certificate’ which does not make any reference to his grandparents’ Christian names, as he asserted it would.  And the Birth Certificate also listed his mother as ‘Rubi’, not ‘Ruby Ruth’. 

11.  Another serious concern of the Board is that the Applicant submitted a letter from CPCP, a Pentecostal church, certifying that he is a regular member of that church.  However, his evidence in the CAT claim was that he did not know what church his family was attending in Karachi and that he had never personally attended the CPCP.  It is noted that his father’s death certificate was also issued by the CPCP.  The Board had queries why the Applicant and his family, being members of a Methodist church in Sahiwal, began attending a Pentecostal church in Karachi when it was his evidence that there are a number of Methodist churches in Karachi.   Given the incorrect information regarding his membership of the CPCP contained in the letter, the Board had doubts about the veracity of the CPCP documents. 

12.  The Board found the Applicant’s knowledge about Christianity very minimal and his participation in church activities insignificant while he was in Pakistan.  His religious practice in Hong Kong where he is free to practice as he chooses, is also limited and vague.  He prays mostly at home and goes to church once or twice a year only.  He said he occasionally attended St Joseph’s Church, which is a Catholic church whereas he claims to be a Protestant.  He said he did not really care about denominations.  These aspects in the Applicant’s evidence give rise to real doubts about the key basis of his claim.

13.  The Board considered his evidence about the Christmas Day altercation and the subsequent attack at his home vague and inconsistent.  His evidence in 2012 and 2013 was that he was only explaining to the JUI what Christians do on Christmas, but was accused of insulting Islam.  The Board found that odd given his evidence that he was not particularly religious or was interested in religion.  More importantly, in his screening interview in 2017, he changed his evidence and positively indicated that he had in fact insulted Islam.  He further confirmed at the hearing before the Board that he had indeed insulted the Prophet Mohammad during the Christmas Day altercation.  The inconsistency is not a minor one. The Board gave his account about the Christmas Day altercation little weight. 

14.  Though the Applicant consistently claimed that eight or nine JUI men attacked his home on the night following the Christmas Day altercation, his evidence is on the whole vague and there are other aspects which are inconsistent and lack plausibility.  The Board was concerned how he would have been able to escape from the assailants on foot, given his evidence was that he suffered an injury on his foot where the bone of his heel was visible and which required 40 stitches.  While accepting he had stitches on his foot, the Board considered they are not related to the attack.

15.  The Applicant claimed that an FIR was lodged against him relating to blasphemy, that police searched for him and harassed his family members and he remained in hiding with various relatives throughout Pakistan for over two years before departing Pakistan in 2002.  He claimed he learned about the FIR through his cousin who was present when the police came to his home looking for him following the Christmas Day altercation, but it was not clear whether his cousin or anyone in his family ever sighted any FIR.  The Board acknowledged that the Applicant did not want to bring trouble to his family members by getting them to ask the police for the FIR.  However, given the existence of the FIR is central to the Applicant’s claim, the Board expects the Applicant to have more detailed and concrete information about the FIR.  The Applicant said that his family members were badly abused by the police. Despite he claimed to be in touch with them in Pakistan, he has not provided any detailed evidence regarding any threats or abuse they suffered.  His evidence about when his family left his home area has also been unclear.  His evidence about harassment of his family members was vague.  His evidence about his own circumstances during the more than two years while he was in hiding was equally vague.

16.  The Board considered the Applicant’s evidence vague, generalised and ultimately not reliable.  He was able to depart Pakistan on a passport in his own name albeit allegedly listing him as a Muslim.  The Board considered he was not of any adverse interest to the Pakistani authorities at the time of his departure from Pakistan.  It rejected his evidence about his Christian identity, his account of the Christmas Day altercation, the attack on his home afterwards, the issue of the FIR, accusation of blasphemy and search by the police and JUI members.  It does not find his evidence regarding his religious practice to be credible, not even his yearly church attendance, monthly readings of the New Testament and prayers in Hong Kong.  The Board rejected the entirety of his case. 

17.  This finding must necessarily mean the Applicant has failed to prove the factual basis to support his claim for protection under any of the applicable grounds under the USM.  However, the Board also considered his recent claim about the effect of his marriage to a Chinese Christian woman.  It found the Applicant has provided no credible evidence and the available evidence does not indicate that he would face a real risk of any of the proscribed forms of harm because of the marriage or if he returned to Pakistan with his Catholic Hong Kong resident wife.  It was therefore not satisfied that there are substantial reasons for believing that the Applicant faces a real risk of torture, CIDTP, deprivation of life or persecution if he returned to Pakistan.

18.  The Board also went on and considered the possible risk to the Applicant if he were indeed born into a Christian family. Even under this scenario, it remains the Applicant’s evidence that he has very limited or no practice of Christianity in Pakistan.  On the basis of country of origin information (“COI”), the Board accepts that Christians suffer a degree of discrimination in Pakistan as well as a high rate of poverty.  However, the risk, according to the Australian Department of Foreign Affairs and Trade is only moderate societal and sectarian violence; and according to the United Kingdom Home Office, Christians do not face a real risk of official discrimination amounting to persecution or serious harm, nor do they face a real risk of persecution or serious harm from non-state actors.  On the evidence, the Board is not satisfied that the Applicant would openly oppose Muslim extremists.  Hence, he would not be at risk by reason of his outspoken character.  The Board therefore assessed the risk he would face harm amounting to torture, CIDTP, deprivation of life or persecution from the Pakistani authorities, Islamist groups or Muslims in general to be remote.  Furthermore, the Board found he could reasonably relocate to Karachi where his mother and two siblings reside to avoid any possible risk.

19.  For the above reasons, the Board found that the Applicant has failed to prove his entitlement to protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”) and dismissed his appeal.

Legal principles applicable to judicial review

20.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

21.  The Applicant did not advance any ground for judicial review in Form 86.  In his supporting affidavit, he reiterated his fears returning to Pakistan and claimed that the Decision was wrong and unfair. But he gave no particulars.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof on balance of probability and the low standard of proof; correctly identified the issues and observed a very high standard of fairness.  In assessing the credibility of his evidence, the Board gave ample allowance for the Applicant’s personal circumstances, in particular as a person running from fear of harm from his home country.

23.  The Board analysed the evidence carefully, tested it against common sense and inherent probability.  The Board found him incredible.  It considered his evidence vague and his account lacking in plausibility.  It had real doubts about the key basis of his claim and rejected the entirety of his case.  It gave full reasons for its finding.  On that basis, the Applicant had failed to establish the factual basis to support his claim for protection.  However, the Board took the extra caution to assume that he was a Christian and assessed his risk of discrimination on that basis.  It referred to the COI that Christians in Pakistan face a moderate risk of societal and sectarian violence and a moderate level of social discrimination, but not real risk of official discrimination.  It found the Applicant could avoid the risk of harm by relocating to Karachi where his mother and siblings are residing.  Hence, the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM.  Insofar as this is a finding of the law, it is absolutely correct.  Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

24.  For the above reasons, the Applicant’s leave application is refused.

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