MP v. TORTURE CLAIMS APPEAL BOARD

HCAL 722/2020

[2023] HKCFI 2192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 722 OF 2020

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 counsel for 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);

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;

4.  Costs be in the cause; and

5.  The Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

Introduction

1.  The Applicant is a 51-year-old national of Pakistan who entered Hong Kong illegally on 8 February 2012 and was arrested by police on 9 February 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed or persecuted by Sunni Muslims and/or religious extremists and/or the Pakistani government and authorities for being an Ahmadi Muslim and/or due to his Ahmadi belief. He was subsequently released on recognizance pending the determination of his claim.

Relevant Country Information

2.  For background information regarding the Applicant’s claim, it would be helpful to first set out those relevant country information regarding Ahmadi Muslims in Pakistan as set out in the decision of the Director of Immigration (“Director”):

“8. The majority of the populations in Pakistan are Sunni Muslim and Shia Muslim. Ahmadi Muslim, being the minority group is and was always treated as non-Muslim. Hence, Ahmadi Muslim is highly discriminated. Equal opportunities are never given to the Ahmadi Muslim. To avoid troublesome, your family members, you, and the people from your community have never disclosed to the majority group that you were Ahmadi Muslim. In fact, there are 72 sects within the Muslim community. The Ahmadi Muslim is regarded as the 73^rd sect which is against and discriminated by all the 72 sects in the Muslim world.

9. Back in 1972, the Pakistani government enacted a new law, stipulating that every Ahmadi Muslim should declare themselves as Ahmadi Muslim in their Pakistani identity card as well as in their Pakistani passport. However, this policy is only confined to the Ahmadi Muslims and no other Muslims are required to have their religion group specified on any of the identification documents. Later, in 1984, an anti-Ahmadi law was enacted, declaring officially that Ahmadi Muslim is not a Muslim.

10. One of the purposes of the enactment of the law was not only to distinguish those who are Ahmadi Muslims, it is also in practice allowing the government to turn a blind-eye on those oppressive actions against the Ahmadi Muslims, i.e., the government would not take any action towards the persecution against Ahmadi Muslims. In fact, the government would even take part in the persecution of the Ahmadi Muslims themselves, for example, groups of uniformed police destroyed an Ahmadi mosque about one month ago in the area of Pachnand, District Chakwal. (Article: Pakistan authorities demolish parts of Ahmadi Muslim mosque referred)

11. Besides the enactment of the law to distinguish the identity of Ahmadi Muslims, all other Muslims religion groups regardless of their religious nature, would spread out the teaching of discriminating Ahmadi Muslims including but not limited to killing the Ahmadi Muslims and receive a reward for the achievement. The general belief of the Islam is that they do not encourage killings those who do not believe in Muslims, however, they would encourage the killing of Ahmadi Muslims which is totally against humanity. (CD-Rom video clips referred). The video clips show that speeches given by various famous Muslims scholars and religion leaders (non-Ahmadi) that killing Ahmadi Muslims is an honourable act.”

Personal Background

3.  As or the personal background of the Applicant, he was born and raised as claimed an Ahmadi Muslim in Village Durmiyal, Mahalla Shumali Guard, Tehseel Chowa Saidan Shah, Chakwal, Punjab, Pakistan where he and his family members as well as people from his village never disclosed their Ahmadi religious belief to the general Muslim community to avoid trouble.

4.  When he was 18 and applied for his identity card, the Applicant concealed his Ahmadi faith as he wanted to join the Army, which he subsequently did in 1990 and was stationed in various places without being discovered by the Army that he was an Ahmadi, during which he married his first wife and has a daughter from that marriage which later ended in a divorce.

5.  While in the Army, the Applicant would from time to time return to his home village for holidays, during which he would pray at the local Ahmadi mosque, and sometimes also volunteered as a security guard for the mosque. On one occasion in 2007 when he was praying in the mosque with his fellow Ahmadi villagers, they were confronted and attacked by a group of Sunni Muslims who accused them as non-Muslims and threatened to kill all of them, but the Applicant managed to make his escape unharmed, and later returned to the Army.

6.  In 2008 upon completing his 18 years of service in the Army, the Applicant returned to his home village and married his second wife with whom he also has a daughter, and worked in a cement factory in Khairpur.

7.  In February 2009 he left his job in the cement factory after being threatened and beaten by some members of the Muslim fundamentalist and extremist religious group Khatam-e-Nabuwat (“KN”) which is particularly against the Ahmadis faith and who suspected him to be an Ahmadi, and returned to his home village to work as a security guard for the local Ahmadi mosque.

8.  One day in early 2010 a group of Sunni Muslims came with some policemen to demand that the Ahmadi mosque be locked down so that no worshipping of the Ahmadi faith would be allowed to take place, and warned the Applicant that he would be killed if he continued to work as a security guard of the mosque.

9.  After the threats the Applicant quitted his job and went to Rawalpindi District where he found another job as a security guard for a local Ahmadi mosque, but the Sunni Muslims there also harassed and threatened those Ahmadis who tried to pray in the mosque, and to avoid becoming a target of their attack the Applicant as the security guard was afraid to stop the Sunni Muslims from coming to the mosque and would only warn his fellow Ahmadis to run away once he noticed that the Sunni Muslims were approaching the mosque.

10.  After the news of a particularly violent attack of a Ahmadi mosque in Lahore in May 2010 by Sunni extremists with guns and bombs which killed some 150 Ahmadis which shocked and frightened the Applicant terribly, and as he continued to receive death threats from the Sunni Muslims and KN members, the Applicant felt it was no longer safe to remain in Pakistan, and so he applied for his passport for which he was required to declare his Ahmadi faith, and made plans to leave the country, which he eventually did on 3 February 2012 when he departed for China, and from there he later sneaked into Hong Kong, and after his arrest by the police on 9 February 2012 he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.  Upon being released on recognizance on 20 April 2012 pending the determination of his claim, the Applicant had been attending the only Ahmadi mosque in Hong Kong in Tai Po which was established in 2003, and on one occasion he was approached by a Police Sergeant from the Tai Po Police Station for discussions about potential problems and security risks faced by Ahmadis in Hong Kong, and thereafter the Police Sergeant together with his colleagues were arranged by the Applicant to hold further discussions with leaders of the Ahmadi mosque on safety issues of Ahmadis in Hong Kong.

Director’s Decisions

12.  By a Notice of Decision dated 30 October 2015 and a Notice of Further Decision dated 3 November 2016 the 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”).

13.  In his decisions 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 Sunni Muslims or religious extremists such as KN or the Muslim community upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that the Applicant had been specifically targeted by any of them or by the Pakistan authorities for religious reasons, that in the absence of any state or official involvement in those alleged incidents that state or police protection would be available to the Applicant if resorted to, that the relevant country guidance show that it is possible in general for Ahmadis to practice their faith on a restricted basis either in private or in community with other Ahmadis without infringing domestic Pakistan law, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Pakistan with a large population of 196 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 where it would be difficult if not impossible for anyone to locate him.

Applicant’s Appeal to the Appeal Board

14.  On 11 November 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board, and on 15 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

Applicant’s Leave Application for Judicial Review

15.  The Applicant then sought leave to apply for judicial review of the Board’s decision, which was subsequently granted by Deputy High Court Judge Woodcock on 28 February 2018 under HCAL 394/2017, whereupon the Applicant issued his originating summons and served his application on both the Director and the Board.

Board’s Second Decision

16.  On 5 March 2019 by consent of the parties, the Applicant’s appeal was remitted to a differently constituted Board for fresh determination, and for which the Applicant attended another oral hearing on 26 September 2019 with the same legal representation from DLS before a different Adjudicator during which he again gave oral evidence and answered questions raised of his claim and with submissions made by his lawyer to the Board. On 1 April 2020 his appeal was again dismissed by the Board which also confirmed the Director’s decisions.

17.  In its decision the Board adopted the approach of the UK Upper Tribunal in its country guidance set out in MN & Ors (Ahmadis – Country Conditions – Risk) Pakistan CG [2012] UKUT 389 (IAC) 14 November 2012 by asking the following 3 questions when faced with claims based on Ahmadi faith:

(1)  Is the Applicant an Ahmadi?

(2)  If so is the Applicant able to demonstrate that it is of particular importance to his religious identity to opening practice his faith in Pakistan?

(3)  Even if the answer to (2) is negative, whether he faces a real risk of serious harm as a result of his religious belief?

18.  In applying the MN approach the Board found the Applicant’s accounts not credible and rejected them as untruthful, and that upon considering his evidence and all the circumstances in the round that it was not persuaded that the Applicant is an Ahmadi, and that even assuming that he is indeed an Ahmadi that he has failed to establish that the restrictions on Ahmadis in Pakistan on the practice of his faith are of particular importance to his religious identity or to show either an intention or wish to defy such restrictions, and that the Board also found that the Applicant will not practice and manifest his faith openly in defiance of the Pakistan Penal Code and so will not engage in those behaviour set out in the headnote of the MN case, and that there is no issue of the Applicant having to modify his behaviour on return to Pakistan.

Applicant’s Second Leave Application for Judicial Review

19.  On 17 April 2020 the Applicant again filed a Form 86 in these proceedings now before me for leave to apply for judicial review of this second decision of the Board, and with the same legal representation now on Legal Aid he put forward the following grounds for his intended challenge:

(1)  That the Board erred in focusing only on whether the Applicant had suffered serious physical injury in the assessment of persecution risk;

(2)  That the Board’s assessment and determination of state protection was irrational based on cherry-picked COI reports;

(3)  That the Board misdirected itself in law and/or failed to conduct the credibility assessment properly;

(4)  That the Board misapplied MN in requiring the Applicant to show that he would practise and manifest his faith “openly and in defiance of the Pakistan Penal Code”;

(5)  That the Board failed to properly apply MN in assessing that internal relocation is possible for the Applicant to move to areas with more Ahmadi to avoid persecution.

20.  On the basis of the Skeleton Submissions of Mr Albert Wong, counsel assigned by the Director of Legal Aid for the Applicant who also represented him in his previous application, and as identified in the decision by the Board ([34] of Decision), the questions for the Court in the consideration of the Applicant’s leave application are these:

(1)  Is it reasonably arguable that the Board had erred in law or in facts in finding that the Applicant’s account of being an Ahmadi not credible or that such finding is irrational or Wednesbury unreasonable in the circumstances of and on the basis of the evidence before the Board;

(2)  If the answer to (1) is no, and hence the Board was correct to reject the Applicant’s claim to be an Ahmadi, that would be the end of his leave application as it would not be necessary for the Court to consider his other grounds;

(3)  If on the other hand the answer to (1) is yes, then is it reasonably arguable that the Board, in proceeding on the assumption that the Applicant was indeed an Ahmadi, failed to apply or misapplied MN in finding that he will not engage in religious behaviours that would expose him to the risk of persecution or that state protection and/or internal relocation would be available to him to negate or avoid such risk.

Proper Approach and Guidance

21.  Before proceeding to examine in details those findings by the Board and to answer these questions, it would be relevant to first refer to the guidance and legal principles applicable to claims by Ahmadis in Pakistan as set out in MN, a decision by the UK Upper Tribunal which provided the basic country guidance on the situation for Ahmadis in Pakistan, the relevant country condition which the decision-maker is required to take into consideration: see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at 206), and a particularly important one in the present case in order for the Board to have a proper understanding of the behaviour and actions of the Applicant prior to his departure of Pakistan in its assessment of the credibility of his claim to be an Ahmadi at risk of persecution in his home country, starting with the following brief introduction in the headnote of the MN decision of the country information regarding the religious practices of Ahmadis historically and up to the presence, and the persecutions of them specifically in Pakistan:

“1. The Ahmadiyya sect was established in 19^th century India by its eponymous founder Hadrat Mirza Ghulam Ahmad (1835-1908). On his death, the situation of Khalifat was established providing for the members of the sect to elect a successor to carry on his work and to be the spiritual and worldly head of the community. The current Khalifa is based in the United Kingdom where the headquarters were established in 1984. The Ahmadis have had a presence in this country since 1913. There are Ahmadi centres worldwide including the United States, Mauritius, Germany, Canada, Russia and Japan.

2. A core belief of the Ahmadi is that their founder is the Imam Mahdi and the promised Messiah. His advent was prophesied by Mohammed the prophet. This is a heresy to mainstream Sunni Muslims whose fundamental belief is that God no longer speaks after Mohammed, (Khatamun Nabiyyeen – literally, the last prophet). The Ahmadi claim that although all Muslims are required to propagate their faith, the Ahmadi are required to do so by personal example and by encouragement with no compulsion. They call this tabligh. The Ahmadi contend that for mainstream Muslims, the jihad (holy war) is an obligation to be pursued with force. Mainstream Muslims regard the Ahmadi as non-believers and non-Muslims.

3. Following independence in 1947 when British India was divided along religious lines, Ahmadis established themselves in West Pakistan later Pakistan. Tensions have grown in Pakistan between the Ahmadi and non-Ahmadi, particularly with the development of Khatme-e-Nubuwat (the Association for the Safety of the Finality of Prophethood). Their aim is to exclude the Ahmadi sect from the “pale of Islam”. In 1953 the religious right in Pakistan declared Ahmadis as non-Muslims. In 1973 the Pakistan parliament amended the constitution, effectively declaring Ahmadis (together with a number of other minority religions) to be non-Muslims. Legislation passed in 1984 limited the ways in which Ahmadis were able to express and propagate their faith (Ordinance XX of the Pakistan Penal Code (the PPC)). This included making it an offence to hold oneself out as a Muslim when not entitled to do so. Ahmadis are not permitted to refer to their centres of worship as mosques nor are those centres permitted to demonstrate their Islamic heritage by, for example, calling the faithful to prayer or portraying the Kalma (proclamation of faith) above the entrance to their mosque. In 1986 an amendment to the PPC (and the Code of Criminal Procedure) made it an offence to make derogatory remarks that defile the Prophet Mohammed (the blasphemy law) punishable by death or life imprisonment and a fine.”

22.  The Tribunal then listed various risks of persecution as a result of legislation in Pakistan faced by Ahmadis in paragraph 2 of the headnote:

“(i) The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able to openly to practice their faith. The legislation not only prohibits preaching and other forms of proselytizing but also in practice restricts other elements of manifesting one’s religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytizing. The prohibitions include openly referring to one’s place of worship as a mosque and to one’s religious leader as an Iman. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed. There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.

(ii) It is, and has long been, possible in general for Ahmadis to practice their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.”

23.  The Tribunal proceeded to set out in the headnote the following country guidance for the determination of claims by Ahmadis set against such country situations in Pakistan:

“5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmations from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.

6. The next step (2) involves an enquiry into the claimant’s intentions or wishes as to his or her faith, if returned to Pakistan. This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention of wish to practice and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity. The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is likely to be in need of protection.

7. The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage in paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.

8. Ahmadis who are not able to show that they practiced their faith at all in Pakistan or that they did so on anything other than the restricted basis described in paragraph 2 (ii) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return, as described in paragraph 2(i) above.

9. A sur place claim by an Ahmadi based on post-arrival conversion or revival in belief and practice will require careful evidential analysis. This will probably include consideration of evidence of the head of the claimant’s local United Kingdom Ahmadi Community and from the UK headquarters, the latter particularly in cases where there has been a conversion. Any adverse findings in the claimant’s account as a whole may be relevant to the assessment of likely behaviour on return.

10. Whilst an Ahmadi who has been found to be not reasonably likely to engage or wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need to consider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile.”

24.  In the later case of WA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 302, on an appeal from the Upper Tribunal, the UK Court of Appeal criticized the guidance given in the headnote and body of MN as misleading in failing to direct the decision-maker to consider “why” the Ahmadi in question did not, or will not, practise their faith in Pakistan “other than on a restricted basis”, as decision-makers who focus on the headnote in that case will not be stimulated to address the “why” question, which was in fact the fundamental question which the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 at 647 held that where a case gives rise to the question whether someone will live “discreetly” and thus avoid persecution, then the question why they will do so must be considered by the decision-maker.

25.  The UK Court of Appeal in WA proceeded to summarize the appropriate guidance for decision-makers in paragraph 60 of the judgment as follows:

“i) Is the Claimant genuinely an Ahmadi? In answering that question the guidance set out in paragraph 5 of the headnote in MN is well expressed.

ii) The next step involves an inquiry into the Claimant’s behaviour if he or she is returned to Pakistan. Will he or she actually behave in such a way as to attract persecution? In answering that question, the decision-maker will again consider all the evidence and will, where appropriate, expressly consider whether the behaviour claimed by the asylum-seeker is genuinely an expression of their religious belief and is an authentic account of the way they will behave if returned.

iii) If the decision-maker’s conclusion is that the Claimant, if returned to Pakistan, will avoid behaviour which would attract persecution, then the decision-maker must ask the question why that would be so. Many possibilities arise. The individual may genuinely wish to live quietly, and would do so whether or not repression existed in relation to the expression of his or her Ahmadi faith. The individual may have mixed motives for such behaviour. If such a quiet expression or manifestation of genuine Ahmadi belief is merely the result of established cultural norms or social pressures, then it is unlikely there will be a basis for asylum. However, if a material reason (and not necessarily the only reason) for such behaviour will be to avoid persecution, then it is likely that the Claimant will have a valid claim for asylum. There 1s no requirement that public expression of Ahmadi religious faith, of a kind which is likely to attract persecution, should be of “particular importance” to the Claimant. Such a requirement is inconsistent with the test as laid down in HJ (Iran).”

Board’s Findings and Conclusions

26.  In the present case, as noted above that the Board adopted the approach of MN but declined to follow WA despite being invited by the Applicant’s lawyer to do so for the reasons given in the decision, of which I will no doubt return later when I come to consider the relevant proposed grounds of the Applicant, and that the Board proceeded to consider the Applicant’s claim by asking those 3 questions raised in MN, starting with the first one as to the credibility of his claim to be an Ahmadi.

27.  In its determination of the Applicant’s credibility as such, the Board made detailed assessments of the following aspects of his account ([36] of Decision):

(a)  the Applicant’s behaviour when he was 18 years old and before;

(b)  the Applicant’s behaviour during his 18 years with the army;

(c)  events encountered by the Applicant at his home village;

(d)  events encountered by the Applicant at Rawalpindi;

(e)  the Applicant’s activities in Hong Kong;

(f)  each of the documents submitted by the Applicant.

28.  Indeed, such detailed analysis and assessments by the Board occupied 20 pages of its decision, of which I propose to summarize its findings as follows:

(1)  that it is implausible that the Applicant could have concealed his Ahmadi belief from the local authority when he applied for his national identity card upon reaching the age of 18 when he claimed to be a third-generation Ahmadi and that since his childhood he and his family had all regularly prayed at the local Ahmadi mosque in his home village;

(2)  that his assertion of having declared his Ahmadi belief when he registered his first marriage at the local marriage registry during his service in the Army was contrary to his claim that he needed to conceal his Ahmadi belief from the Army;

(3)  that his assertion of volunteering as a security guard for the Ahmadi mosque in his home village during his holiday leaves from the Army was inconsistent to his claim of having concealed his such Ahmadi belief from the Army during his 18 years of service;

(4)  that it is incredible that the Applicant had never been injured while working as a security guard for the Ahmadi mosque in his home village after retiring from the Army despite the many violent attacks on the Ahmadi villagers by the Sunni Muslims and KN religious extremists;

(5)  that the Applicant’s claim of moving from his home village to Rawalpindi to save his life but where he again worked as a security guard for another Ahmadi mosque is contrary to his alleged purpose of moving to Rawalpindi;

(6)  that the Applicant obtained his passport in November 2010 but only departed Pakistan more than one year later in February 2012 is inconsistent with his assertion that he applied for his passport with the sole intention of leaving Pakistan to seek international protection;

(7)  that since his arrival in Hong Kong in 2012 there was no objective evidence substantiating that the Applicant had proselytized his Ahmadi belief;

(8)  that although the Applicant was found to have reasonable level of knowledge of the Ahmadi belief, it was not an important or central part of his life as he had not told others of his Ahmadi belief in Hong Kong, and that he had subsequently moved from the Tai Po District to the Tai Kok Tsui District far away from the only Ahmadi prayer centre in Hong Kong that substantially reduced the frequency of his weekly attendances;

(9)  that the Applicant’s claim that in 2003 (when he was still in the Army) when he applied to the Pakistan government authority to renew his national identity card that he did declare his religious belief to be of Ahmadi faith which was contrary to his assertion that he earlier concealed his Ahmadi belief in fear that such belief might affect his career in the Army;

(10)  that there was discrepancy in the date of his birth between those stated in his passport, his NCF and his Pension Book that it is not accepted that the Applicant could not have noticed such error notwithstanding his low level of education;

(11)  that there was such discrepancy as to the time when the Applicant applied and obtained a letter from Jamaat-e-Ahmadiya Rawalpindi (“Rawalpindi Letter”) in support of his claim to have worked as a security guard at the Ahmadi mosque in Rawalpindi that little weight should be attached to it;

(12)  that it is implausible that the Applicant would declare his Ahmadi religion when he applied for his passport in November 2010 for the purpose of fleeing his country due to his religious faith without any concern of the risk of being refused by the passport office of its issue undermined the fact that his Passport stated his religion as “Ahmadiyya” that it is not considered as conclusive evidence of his Ahmadi membership;

(13)  that the UK Prayer Letters submitted by the Applicant merely acknowledged his requests for prayers and do not confirm or verify his Ahmmadiyya membership;

(14)  that despite being given ample time and with legal representation the Applicant failed to seek verification of his Ahmadiyya membership from the UK Ahmadi headquarters (“AMAUK”) or from the local Ahmadi branches in Pakistan, and instead could only produce a letter from the Ahmadiyya Muslim Jamat Hong Kong (“AMJHK”) to verify his attendances of activities organized by AMJHK to which only little weight was to be attached;

(15)  that the Applicant’s explanations as to why some of his Donation Receipts of donations made to various groups as corroborations of his Ahmadi religion were not produced earlier to the Board were unsatisfactory that little weight was to be given to such evidence.

29.  In addition to such findings, the Board also took into account of other available information and the relevant COI as follows:

“107. There is COI indicating that the Pakistan state does not persecute those Ahmadis who practise or manifest their faith discreetly, the sanctions imposed by the Pakistan Penal Code being reserved for those who do so openly and in disregard of the religious tradition of the wider community. An Ahmadi may be targeted by non-State actors such as KN members but this tends to be where the person concerned has a prominent religious, social or business profile. The Appellant is neither a “Quaid” (religious leader) nor a “Musi” (religious teacher) in Pakistan. The Board does not accept that the Appellant’s personal profile attracts KN members to adversely target him.

108. Moreover, according to the Appellant during the Hearing, his mother, wife, younger daughter, and all siblings (except one who had already converted to Sunni Muslim) are Ahmadis and currently residing at his home village. He confirmed that they had never been physically assaulted by KN members but from time to time they had to move from one place to another within his home village.”

30.  On the basis of these findings and materials the Board proceeded to arrive at the following conclusions that the Applicant’s claim to be an Ahmadi was not credible, and that even if he were an Ahmadi that he will not engage in those behaviours as set out in paragraph 2(i) of the headnote of the MN case, and hence he will not face any risk of persecution if refouled to Pakistan:

“112. After considering all circumstances of the Appellant’s case and the COI in the round, the Board finds that there is insufficient evidence that the Board may rely on to accept the Appellant’s material assertions and his explanations for the discrepancies or inconsistencies of evidence regarding those material assertions in the Representation, NCF, RI, Additional Statement, and during the Hearing unsatisfactory, and the Board does not accept them.

113. The Board finds the Appellant’s account not credible and his account is rejected as untruthful. After considering the Appellant’s evidence and all circumstances in the round, I am not persuaded by the evidence that the Appellant is an Ahmadi. He has not discharged the burden of proof upon him that he has a well-founded fear of persecution for a Refugee Convention reason or that there is a real risk of his suffering torture or ill-treatment on return. Moreover, even assuming it is established that he is an Ahmadi, the Appellant has failed to demonstrate that the restrictions on Ahmadis in Pakistan on the practice of his faith are of particular importance to his religious identity and he has not shown either an intention or wish to defy such restrictions. The Board finds that the Appellant will not practice and manifest his faith openly in defiance of the Pakistan Penal Code and so will not engage in those behaviour set out at paragraph 2(i) of the headnote of the MN case. There is no issue of the Appellant having to modify his behaviour on return to Pakistan.

114. Bearing in mind the above burden and standard of proof, the Board does not accept that: (a) the Appellant is an Ahmadi believer; and (b) the Appellant will engage in those behaviour set out at paragraph 2(i) of the headnote of the MN case, if he was refouled to Pakistan. The Board does not accept that the Appellant had been ill-treated in Pakistan. There was no reliable evidence that the alleged acts of torture had inflicted on the Appellant pain or suffering of certain severity or gravity.”

Applicant’s Challenges

31.  As noted above, this is the Applicant’s second challenge by way of judicial review of a decision by a differently constituted Board after obtaining leave from the Court to quash its first decision for whatever errors that the previous Adjudicator might have made, and perhaps for that reason one would expect the second Adjudicator to have taken particular care to address all those issues in this decision, and which he certainly did in what appears to me a very well-crafted one covering 49 pages and 176 paragraphs of detailed consideration and analysis of the Applicant’s claim.

32.  However, so far as the application now before me is concerned, the threshold test remains the same as laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and as summarized by Cheung J (as he then was) in Re Cheng Kar Shun [2009] HKCFI 581, HCAL 79/2009, 14 July 2009 as follows:

“3. … the test is one of reasonable arguability. It is not a particularly high threshold. As the Court of Final Appeal, in setting the test, has explained, it is a test designed to screen out unmeritorious, frivolous, vexatious and purported challenges that are not reasonably arguable.

4. The test does not mean that leave should be refused if there appears, on the materials before the Court, respectable counter-arguments to those relied on by the applicant. The focus is really on whether the applicant has shown, by the materials he or she has chosen to place before the Court, contentions that are reasonably arguable.”

33.  On such basis I shall now proceed to consider the Applicant’s proposed grounds, starting obviously with Ground (3) over the Board’s determination of the credibility of his claim to be an Ahmadi.

Ground (3) Credibility

34.  Mr Wong for the Applicant complains that the Board failed to follow the proper approach when assessing the Applicant’s credibility and hence was wrong in finding that he is not an Ahmadi by:

(a)  placing too much focus on documentary proof and going too far in analyzing inconsistencies in dates and other details of various documents, such as the time and date of the issue of the Applicant’s passport, the discrepancy of the Applicant’s date of birth in his Pension Book, and the font and other discrepancies in the Rawalpindi Letter;

(b)  unreasonably criticizing the Applicant for not producing the UK Prayer Letters and Donation Receipts which were available at the time to the Board when it was reaching the previous decision and therefore placing too little weight on such documents which goes against the spirit of the law on credibility that recognizes that an applicant may not be able to produce documentary proof;

(c)  placing too much focus on so-called inconsistencies and common sense based on the Board’s subjective view of what constitutes common sense and how the Applicant’s behaviour deviates from that which is unfair to the Applicant and wrong in law;

(d)  making its own assumptions in finding the Applicant’s declaration of his Ahmadi faith on various government documents and his work as a security guard for Ahmadi mosques during his career in the Army as inconsistent and/or contradictory to his desire to conceal his Ahmadi belief from the local authority or from the Army by assuming that there is a system for cross-referencing different registries between different government departments in Pakistan or that the government is diligently tracking attendees of Ahmadi mosques when there is no COI supporting such assumptions;

(e)  wrongly assuming that it is unreasonable for the Applicant to apply for a passport whilst declaring his Ahmadi belief and then thereafter delayed his departure for months while openly practicing his faith in Rawalpindi without considering the possibilities that the Applicant might have thought that the threats and harassments from Sunni Muslims and KN members in his home village might not be repeated in Rawalpindi and that he might be reluctant to leave his country unless he had no other choice;

(f)  wrongly assuming that the Applicant could avoid persecution and would therefore not be at risk by hiding his Ahmadi belief or living discreetly while ignoring the fact that having to do so due to a well-founded fear of persecution in and of itself is persecution which warrants protection;

(g)  wrongly assuming that while in Hong Kong that living near the AMJHK prayer center is central to the Applicant’s belief and/or indication of the importance of Ahmadi faith in his life, and conversely that moving away from the AMJHK prayer center in Tai Po to Tai Kok Tsui is not without considering that it was for economic and practical reasons for the Applicant to do so;

(h)  failing to give the Applicant sufficient weight or credit for the external consistencies of his evidence which are supported by relevant COI or known facts including persecutions by Sunni Muslims and KN members against the Ahmadis, the need to declare religious belief when applying for national identity card or passport or registering marriage and/or to give him benefit of the doubt in assessing the credibility of his claim.

35.  In considering whether these complaints are reasonably arguable, it would be helpful to also remind myself of the relevant and applicable principles, starting with the well-established one that the burden of proof of a non-refoulement claim lies on the claimant, while the duty to ascertain and evaluate all the relevant facts and evidence is shared between him and the decision-maker, as stated in the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, February 2019, which sets out the applicable principles and methods as follows:

“195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.

196. It is of general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowances for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198. A person who, because of his experience, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case …

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the other, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” …

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may not be an “underserving case”.”

36.  These principles were affirmed by the Court of Final Appeal in Prabakar supra at [21] of its judgment, and in which Li CJ proceeded to state that all relevant matters of the applicant’s case should be considered, and with high standards of fairness to be complied when considering individual cases.

37.  Henceforth, in assessing and making credibility finding in such claims, all the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants. In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: see Section 2.2.1 and 2.1.2 of the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004.

38.  Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p41.

39.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him, as stated in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015 at s 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

40.  In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected; and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant.

41.  Such views and approach have been adopted by the Hong Kong Courts, and in ST v Betty Kwan [2014] 4 HKC 419, [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a non-refoulement protection claim, as Cheung CJHC (as he then was) elaborated at para 43:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. ... As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

42.  Furthermore, it has been recognized that authoritarian or unstable states can act in unpredictable ways, and in a manner that defies apparent logical analysis, as it was stated in RAA v The Secretary of State for the Home Department, Upper Tribunal, PA/07424/2018, 31 May 2019, citing the situation in the case of Abdul Omar Suleyman v The Secretary of State for the Home Department 16242 (1998) at para 33:

“It is clear to us that a repressive regime … may well act in ways which defy logical analysis. A person who is genuinely a victim of such a regime may well find that the partial account he is able to give of its activities as they have affected him is not something which will stand up to a strictly logical analysis. The regime may seem to govern by confusion; it may engage in other activities, of which the Appellant knows nothing; it may simply behave in a way which a person sitting in safety in the United Kingdom might regard as almost beyond belief.”

43.  In Y v SSHD supra, Keene LJ identified the dangers of a decision-maker being influenced by his own views on what is or is not plausible in approaching the issue of credibility, and that it is important that the decision-maker should seek to view a claimant’s account of events in the context of the conditions in the country from which the claimant came, as his Lordship observed at para 25:

“There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’

44.  In the present case, there is no question from the COI available before the Director and the Board that in Pakistan, an Islamic Republic with Islam as the state religion and with Sunni Muslims comprising the majority population, that there are laws and policies many considered as repressive which contribute to a systemic and societal discrimination of Ahmadis within the country, discrimination which government officials often ignore and even publicly support, and which has caused many Ahmadis to flee to other countries.

45.  It is in this context of the conditions in Pakistan that the Board should seek to view the Applicant’s account of events in its assessment of the credibility of his claim to be an Ahmadi or of his Ahmadi faith, as well as to decide what weight should be given to the various documents submitted by him in support of his claim. Given those findings made by the Board and its reasons for rejecting the Applicant’s claim as noted above, I am satisfied that Ground (3) is reasonably arguable in that the Board had failed to apply the proper test or approach in assessing the Applicant’s credibility by relying on unfounded assumptions or its own subjective speculations or common sense, and/or by wrongly placing too much or too little weight on certain evidence and materials before the Board, and/or in failing to give the benefit of the doubt to the Applicant on the basis of the evidence and materials which supported his claim.

46.  I shall next consider Ground (4) which is inextricably linked to Ground (3) and to answer the 3^rd question posed in [20] above.

Ground (4): Misapplying MN

47.  In this ground Mr Wong for the Applicant complains that the Board wrongly assumed that the Applicant has to be openly defiant of the restrictions imposed by the Pakistan Penal Code to be eligible of non-refoulement protection which ignores the reality of persecution and the guidance in authorities such as WA, as it is submitted that the Applicant does not have to aspire to be a religious martyr, as his conflicted existence where he wishes to express his faith while having to be discreet for fear of persecution would be sufficient.

48.  The Board as noted above adopted the approach of MN but declined to follow WA for the following reasons in its decision:

“25. Ms McClellan submitted that the UK Court of Appeal case of WA which followed the MN case was also applicable to the present case. In essence, the court in the WA case adopted the approach in the MN case but expressly clarified that “there is no requirement that public expression of Ahmadi religion faith, of a kind which is likely to attract persecution, should be of “particular importance” to the Claimant. Such a requirement is inconsistent with the test as laid down in HJ (Iran)”. In short, the WA case held that there is only one question to be asked: Whether the Appellant is a genuine Ahmadi?

26. Ms Zhi submitted that the MN case and WA case being UK cases are not binding on the Board or courts in Hong Kong.

27. Bearing in mind all UK cases are not binding on the Board, the Board considers that it is appropriate to adopt the approach of the UK Upper Tribunal in the MN case, i.e. the Board will assess the present case by asking all questions to be asked in the MN case but will not restrict the scope of assessment to the one question in the WA case. …”

49.  Even leaving aside the obvious question as to why the Board chose to adopt the approach of MN, a decision of the UK Upper Tribunal, but not WA, a decision of the higher Court of Appeal which in fact held specifically, as noted above, that the guidance given in the headnote and body of MN is misleading and should not be followed, it seems to me that the Board may have simply misread or misunderstood WA by stating that it held that there is only one question to be asked: Whether the Appellant is a genuine Ahmadi, which is clearly not what the Court of Appeal stated in WA at [60 iii] of its decision and as referred to above ([25]) when it clarified that upon the decision-maker’s conclusion that the claimant if returned to Pakistan will avoid behaviour which would attract persecution, then the decision-maker must ask the question why that would be so, as the “why” question is an obligation laid on the decision-maker by the UK Supreme Court in HJ (Iran).

50.  For these reasons, and it seems to me that the Board never raised the “why” question upon finding that if the Applicant were indeed an Ahmadi that he will not practice and manifest his faith openly in defiance of the Pakistan Penal Code so as to attract the risk of persecution as obligated by HJ (Iran) and adopted by WA, I am satisfied that Ground (4) is also reasonably arguable for the Applicant’s intended challenge.

Grounds (1), (2) and (5) Misapplying State Protection and Internal Relocation

51.  Similarly for the reasons given, and in failing to apply the correct test or approach in assessing whether the Applicant will genuinely wish to engage in the paragraph 2(i) behaviour in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation that state protection and internal relocation may no longer be viable options, I agree that these grounds of the Applicant are also reasonably arguable for his intended challenge of the Board’s findings that they are viable to the Applicant upon his return to Pakistan as an Ahmadi.

Decision

52.  In the premises, and for the reasons given, I am satisfied that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan, and accordingly I grant leave for him to do so on the basis of his proposed grounds, and direct that he shall within 14 days file and issue his originating summons and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs to be in the cause, and that the Applicant’s own costs to be taxed on Legal Aid Regulations.

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