MALIK MUHAMMAD SARFRAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 85/2024

[2024] HKCFI 3359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 85 of 2024

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

Following:

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

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 8 January 2024 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 December 2023 (the “2023 Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 November 2015 (the “2015 Notice”) and Notice of Further Decision dated 16 June 2017 (the “2017 Notice”).

2.  The Applicant is a Pakistani national, now aged 45. He entered Hong Kong illegally on 30 March 2013. He surrendered to the Immigration Department on 7 May 2013. He made a non-refoulement claim on 6 March 2014.

3.  His claim was assessed under the Torture Risk[1]; BOR 3 Risk[2] and Persecution Risk[3] grounds then available under the United Screening Mechanism (the “USM”) and was rejected by the Director’s 2015 Notice. By the 2017 Notice, the Director also rejected his claim under BOR 2 Risk[4] ground. His appeal against these two Notices were dismissed by the Decision of the Board dated 19 September 2019 (the “2019 Decision”). He then successfully obtained leave to apply for judicial review of the 2019 Decision[5]. By consent, the 2019 Decision was quashed and the appeal was remitted to the Board for re-determination. His appeal was heard by a differently constituted Board on 25 April and 2 August 2023. He was legally represented by the Duty Lawyer. On 15 December 2023, the Board issued its 2023 Decision to dismiss his appeal. The Applicant now seeks leave to apply for judicial review of the 2023 Decision.

Legal aid stay

4.  The leave application was scheduled to be heard on 2 October 2024. Notice of hearing was sent to the Applicant by post on 20 September 2024. At the hearing, the Applicant applied for adjournment to await the outcome of his legal aid application.

5.  The Applicant has been in Hong Kong for 11 years. He is no stranger to the non-refoulement proceedings and to the legal aid regime. Having applied for legal aid before, he must have known that it usually takes six weeks to process a legal aid application. Yet he chose to make his legal aid application on 30 September 2024 which was the very last working day before the scheduled hearing date. Any reasonable person with the kind of background as his and who intends to proceed with his leave application regularly would have made the legal aid application on the same day as he filed his leave application 10 months ago. The Applicant’s explanation for the delay is that he had to wait for the advice from his counselor from the Justice Centre before making the application but his counselor was out of Hong Kong. The Court does not consider that a credible or reasonable explanation. It does not think the counselor would have made herself unavailable for such a long time without making alternative arrangements to cover her absence. Nor was waiting a reasonable course to take as there was nothing to suggest he could otherwise obtain legal representation. If subsequently the counselor advises against accepting legal aid, the Applicant could simply abandon his legal aid application or decline to accept the assistance, if offered. The Applicant’s conduct speaks loudly of an intention to derail the proceeding. Accordingly, his application to adjourn was refused.

6.  However, as the hearing commenced, the Applicant said he needed time to prepare. He claimed he had not received the notice of hearing and that he attended because he was verbally informed of the hearing by the court staff on 20 September 2024. This is not an entirely reasonable request because even accepting what he said is true, he had 12 days to prepare for the hearing. However, having regard to the high standard of fairness and giving him the benefit of doubt, the Court adjourned the hearing.

7.  Though the Memorandum of Notification of an Application for Legal Aid has not yet been filed with the Court, accepting that the Applicant had applied for legal aid on 30 September 2024, in the normal course, his leave application shall be stayed until 11 November 2024, pursuant to Section 15 and Regulation 7A of the Legal Aid Ordinance. For reasons as explained in the above paragraphs, despite those provisions, the Court uplifted the stay and adjourned the hearing to 7 October 2024.

The Applicant’s case

8.  Paragraphs 53 to 72 on Pages 15 to 40 of the Decision is a fairly comprehensive summary of his claim which was mainly based on the information he provided in his non-refoulement claim form. The Applicant claims he will face three sources of fear, if returned to Pakistan. First, he will be harmed or killed by his cousins, AM and MI for having disclosed to the United Kingdom (“UK”) authorities MI’s status as an illegal immigrant and his illegal activities in selling forged UK passports and making false insurance claims which resulted in MI’s arrest and imprisonment in the UK. Second, he will be arrested, ill-treated and prosecuted by the Pakistani authorities for a false case of murder and he will not receive a fair trial. Third, having established his family in Hong Kong, he will suffer harm of separation from his family, if refouled.

9.  The Applicant was born in Baghban Pura Lahore, Pakistan. He received 17 years of formal education and obtained a diploma in electrical technology. He had 11 years’ working experience as a director in a company trading electronic goods. Whilst in Hong Kong, he had an affair with an Indonesian woman, and together they have two daughters.

10.  The Applicant has a wealthy uncle (“AK”) who had three sons, ie his cousins, AM, MI and MT (whom he later claims to be the husband of another cousin instead). AM is a lieutenant colonel in the Pakistani army and a personal guard of a former president of Pakistan. He is powerful and influential. MT previously worked for the Federal Investigation Agency (“FIA”). He has power within the Pakistani police and federal system.

11.  In July 2003, the Applicant went to the UK on a two year working holiday visa. He stayed with MI, and later became aware of MI’s status as an illegal immigrant and his illegitimate activities such as creating false bank accounts and making false insurance claims. He believed MI transferred the proceeds from those activities to fund AM’s purchase of properties in Pakistan.

12.  There was an occasion when MI invited the Applicant to join him in those illegal activities, but the Applicant refused. Then MI demanded rent from him. When the Applicant said he had no money, MI assaulted him. This happened three to four times. He did not report the assaults to the police because MI promised not to do it again and his father also told him to keep quiet.

13.  In May 2005, the Applicant wanted to extend his stay in the UK, as his visa was expiring. MI’s friend offered to sell him a “genuine British passport” from the Newcastle passport office which would make it easier for him to work in Canada. He bought the passport, but was subsequently arrested for using a forged passport when he attempted to leave the UK en route to Canada. He was sentenced to nine months’ imprisonment in the UK. He claimed he gave information about the illegal activities of MI and his friend to the UK authorities which shattered a syndicate trading in forged passports.

14.  Before his trial in the UK, his father told him that MI had returned to Pakistan and was looking for and threatening to kill the Applicant claiming he was owed £300,000 in losses due to his arrest in the UK. While he was in jail custody, his solicitor told him that MI was sentenced to 5 to 7 years’ imprisonment and deported from the UK. The Applicant was released on 28 October 2005.

15.  After his release, the Applicant received a threatening telephone call from an anonymous caller. He made a complaint to the UK police which led to the arrest of the caller. The Applicant believes the caller was connected to MI’s illegal activities.

16.  For fear of his safety after his return to Pakistan, the Applicant applied for asylum in the UK. His application was refused. Though the asylum regime in the UK permits him to re-apply, he abandoned that course. He returned to Pakistan on 17 January 2006 because his father who had heart surgery twice in January 2006 pleaded his return.

17.  On 27 January 2006, he visited his brother (“S”) in his shop. That afternoon, four tall, muscular unknown men entered the shop. One of them whom he now knows is named MA pointed a gun at him, while another grabbed him. The other two men pretended to be customers making a complaint. The Applicant took hold of the gun to stop it from being fired. However, MA fired. The bullet missed the Applicant but ricocheted killing one of the other three men (“MI2”) standing next to MA (the “first shooting”). He later learned that MI2 was the brother of MA and MA was the driver of AM.

18.  Later, the police arrived and arrested the Applicant. MA and S also went to the police station. MA complained to the police that the Applicant produced a gun and shot MI2. On that complaint, the police charged the Applicant and S with murder. The Applicant believed that the four men were sent by AM and MI to kill him and when that plan failed, MA framed the Applicant for the murder of MI2.

19.  S was released after three to four weeks, but the Applicant remained in police custody for another 16 days before he was transferred to prison custody. While he was in police custody, he was beaten, deprived of food and water, and tortured. The detention condition was appalling. He believed that AM was behind his ill-treatment by the police.

20.  S was subsequently acquitted by the Court after providing an alibi. The Applicant’s trial was repeatedly adjourned because prosecution witnesses failed to attend the hearing. He believed that was arranged by MI and AM so that his family had to incur extra legal fees.

21.  Because of the delay, the Applicant was granted post-arrest bail by the High Court of Lahore on 9 February 2012. After his release, he encountered three attacks. The first attack occurred when two men on a motorcycle shot at him while he was standing on the second floor balcony of his house (the “second shooting”). The shots missed. The motorcyclists then robbed his sister-in-law who was standing outside the house.

22.  The second attack took place at a bus stop while the Applicant was waiting for S. The assailant left when a security guard intervened.

23.  The third attack took place while the Applicant and S were waiting at a bus stop. Two people arrived in a vehicle in front of them and fired (the “third attack” or “third shooting”). The Applicant was not injured, but S was shot in the leg.

24.  The Applicant does not believe the Pakistani police will protect him because of AM’s and his relatives’ influence. He also does not consider internal relocation feasible as AM could locate him by using his influence. Out of fear for his safety, the Applicant decided to leave Pakistan. He obtained a visa and flew to Mainland China in January 2013. Then he sneaked into Hong Kong in March 2013.

The finding of the Board: its approach and preliminary findings

25.  The Board held a directions hearing on 25 April 2023 in which it raised with the representatives of the Applicant and the Director a number of issues which it considered relevant to the appeal, such as the evidence at the hearing before the previous Board, a report from a Pakistani lawyer, new evidence to be adduced at this hearing, evidence from the Applicant’s partner and various other procedural matters. The Applicant and his partner subsequently gave evidence at the hearing on 21 May 2018. The parties made pre-hearing and post-hearing submissions.

26.  The Board considered the truth in this case falls into one of the following three scenarios: (1) that the Applicant was charged for a murder which he did not commit; (2) that he was charged for a murder which he did commit; and (3) that he was not charged for any murder at all, false or otherwise. It began with making findings relevant to the third scenario first, because it was only after finding there is a genuine murder charge will it become necessary to assess the Applicant’s risk of harm under the first or the second scenarios.

27.  Before embarking on its investigation of the truth, as an acute acknowledgment of the seriousness of the Applicant’s claims and as a further acknowledgment of the weight this issue has on the Board’s mind, the Board started with assessing, assuming what the Applicant said is true, whether he will face the death penalty if convicted of murder under Article 302 of the Pakistan Penal Code. It found that the death penalty is not mandatory but a possible sentencing option. The court has discretion to order a custodial sentence and the deceased’s relatives may also elect to waive the death penalty and to receive compensation from the perpetrator. On the basis of that finding, the Board considered it highly possible that if the Applicant is genuinely facing a murder charge in Pakistan, it is highly possible that he is able to substantiate a claim under BOR 2. The Court does not find it necessary to go into details of the Board’s reasoning as these findings are all in favour of the Applicant.

28.  Next, the Board considered whether the Applicant will have a fair trial and the prison condition while held in custody pending trial or after being convicted. Having regard to international jurisprudence[6] and the Court of Appeal decision in Mohammad Palash[7], the Board was not persuaded that the delays and failures in the criminal justice system of Pakistan are so flagrant that they amount to a fundamental breach amounting to a nullification of the Applicant’s right to a fair trial.

29.  On the basis of country of origin information (“COI”), it also found detention conditions under judicial custody while on remand or serving a prison sentence is not much of a concern. The main issue is overcrowding and insufficient amenities, which the Board assessed to be on the lower end of the scale of seriousness. Detention under police custody is more of a concern, but the Board considered it more likely than not that the Applicant will be returned to judicial custody and not police custody, if refouled. Hence, the Board considered the harm the Applicant may suffer if he is imprisoned will not attain a sufficiently high and demanding level as would amount to persecution, or a breach of BOR 3 or the Persecution Risk.

30.  I have no criticism of the Board’s finding of the law and of facts above. The Court also does not find it necessary to analyse the Board’s reasoning as those findings would only become relevant if the Board found as a fact that the Applicant’s case falls under scenario 2 or scenario 3, which the Board did not so find. The Court mentioned the Board’s approach only to demonstrate the seriousness, the high standard of care and the high standard of fairness with which the Board carried out its assessment of the Applicant’s credibility and made its finding of fact.

The finding of the Board: assessment of credibility

31.  Having made the above preliminary findings of fact, the Board proceeded with its analysis of the Applicant’s evidence. It considered all the available evidence and weighed those in support of the Applicant’s claim against those which is unfavourable to the Applicant. It appreciated the consistencies in the Applicant’s evidence, the volume of supporting documents, his Pakistani lawyer’s report and the evidence which the Board obtained from its own search of the website of the Pakistani court. It found from the website reference to a case bearing the same case number, the Applicant’s name, the name of the judge as shown in the Applicant’s documents and the date when bail was granted as claimed by him, but not the offence for which he was charged. There is no need to repeat the evidence which is summarised in Paragraphs 156 to 169 of the 2023 Decision. The Board then tested the evidence against common sense, inherent probability and the COI. It found on balance the multiple and material concerns about the credibility of the Applicant individually and cumulatively all weighed in favour of not accepting his claims to be credible.

32.  The Board had concerns about the Applicant’s general credibility. The Applicant accused AM, MI and MT orchestrated the delay of his trial, but the court records show comments about the Applicant’s failing to pay his lawyers and advocates and judicial strikes as reasons for the delay in the trial. This shows the Applicant had not been forthright with the Board about the circumstances surrounding the claimed delay in the trial.

33.  He produced an online complaint by his brother S about his wife being threatened by armed men who are the same men who harmed the Applicant in the past. The complaint bears a manually affixed wet stamp which is inconsistent with it being a print out of an online complaint. As S was absent at the pertinent time, the Board queried his status as the complainant and, more importantly, how he was able to conclude that the armed men were the same men who harmed the Applicant in the past. Having regard to the COI that fraudulent documents are readily available in Pakistan, the Board placed less weight on the documents from Pakistan produced by the Applicant. This does not apply to the documents he produced which originated from the UK.

34.  The Board commented about the inconsistencies in the Applicant’s evidence about his failure to produce supporting evidence of the rank that AM holds in the army or MT holds in the FIA. The Applicant was confused whether MT was in the army or in the FIA and that MT is not his cousin but the husband of his cousin. The Board was concerned about the inconsistency between the primary focus of the Applicant’s feared harm in the present claim and that in his UK asylum application. In the present claim, he said he fears harm from AM, but in his UK asylum application he stated that his fear was from MI and mentioned nothing about AM. His explanation is that he did not realise AM’s involvement until after the shooting (Paragraphs 186 to 189 of the 2023 Decision). These are very trivial aspects of his evidence.

35.  More importantly, the Applicant said before his trial in the UK, his father told him that MI had already returned to Pakistan and made threats against the Applicant. The timing of MI’s return to Pakistan after having served his sentence obviously does not tie in with the Applicant’s evidence that he was told by his father about MI’s threats prior to his trial or his evidence that he was told about MI’s sentence while he was serving his own sentence. The inconsistency and implausibility weigh heavily against his credibility generally (Paragraphs 94 and 95 of the 2023 Decision).

36.  More importantly too, is that he denied knowing the UK passport he purchased from MI’s friend was fraudulent. This is inconsistent with his admission at the time of his arrest at the airport as recorded in the Sussex police case summary. The Board found he seemed willing to say anything truthful or not, if he thought it would advance his case (Paragraph 191 of the 2023 Decision).

37.  The Board also had credibility concerns about the false case or false charge of murder for three reasons. The first concern is what the Board described in short as the ‘magic bullet’ (Paragraphs 198 to 204 of the 2023 Decision). The Applicant’s case is that MA fired at him face to face but the bullet missed him, hit the wall behind him and ricocheted killing MI2 standing next to MA). The medical and forensic witness statements stated that the body of MI2 had entry and exit wounds to his chest. The Pakistani court records stated that forensic officers photographed and took measurements of the scene of the shooting. The photographs and measurements were not in the appeal bundle before the Board. The Applicant was aware of the police taking photographs and measurements and on the Board’s request offered to attempt to get them from the court file. But he never produced them nor did he ask for time to do so. His legal representative quoted from ballistics textbooks about the possibility of a bullet ricocheting in such circumstances. That was rejected by the Board as submissions couched at an attempt to create a reasonable doubt only which is not sufficient to remove the doubt in the Board’s mind that the bullet could ricochet off the wall behind the Applicant and rebound back, akin to a rubber ball to hit MI2. To the Board’s mind, the issue is the angle at which the Applicant claimed the bullet could ricochet off the wall directly behind the Applicant to hit MI2 who was standing beside the shooter. The Board also found it odd that the Applicant did not suffer any pain to his ear if a gunshot was fired arm’s length from his head.

38.  Second, the Board was concerned that the Applicant had never raised his fear about facing the death penalty if refouled to Pakistan (Paragraphs 205 to 210 of the 2023 Decision). When asked by the Board, he put the blame on his Duty Lawyer. He claimed his own defence lawyer had never told him that either. He said he never discussed possible sentences with his defence lawyer and it was his brother who spoke with his defence lawyer. He said he did not ask because it did not interest him and did not wish to think about it. The Board considered the risk of facing the death penalty is such a significant issue which should actually be part of the centrepiece of the Applicant’s claim. It was not raised until the pre-trial hearing by the Board. The Board considered its absence strongly suggests that there is no murder charge, falsely or otherwise, against the Applicant for the shooting to death of MI2.

39.  Third, even after the murder trial had commenced and two months after he was granted post-arrest bail, the Applicant was issued a passport in April 2012, which enabled him to come to Hong Kong and issued another one in March 2017. The Board found the issue of his passport in April 2012 is very difficult to reconcile with the Applicant’s claim that he was genuinely on bail in the course of a murder trial at that time. Similarly, it is difficult to accept that the Pakistani consulate in Hong Kong would issue another passport to him in May 2017 when he claims the Pakistani court has issued a warrant for his arrest after breaching bail, especially as, according to him, he is a declared proclaimed offender. The issue also undermines his claim that AM and MT have the level of influence over the Pakistani authorities that he claimed they had.

The finding of the Board: the conclusion

40.  In conclusion, the Board found the preponderance of the evidence undermines the Applicant’s claims that he is genuinely facing a murder charge for the shooting to death of MI2. The Board found him incredible and rejected the entirety of his evidence relating to the false charge. The most significant reason is he never raised any claims related to the fear of facing the death penalty. The second significant reason is the Pakistani authorities twice issuing new passports to him after he claims to have been bailed while facing prosecution for such a serious criminal offence. The third significant reason is the overall inconsistencies and implausibilities in his evidence which undermined his credibility.

41.  The Applicant’s feared harm of separation from his girlfriend and two daughters is made on the basis of Article 19 of Section 8 of the Hong Kong Bill of Rights Ordinance in respect to family and marriage (“BOR 19”) as well as the United Nations Convention on the Rights of the Child (“CRC”). The Applicant and his girlfriend have not registered their marriage in Hong Kong or their Islamic marriage. His girlfriend had registered the births of their two daughters with the Indonesian consulate in Hong Kong, but has not obtained Indonesian passports for them yet. In her testimony, she said that the Applicant had asked her and the two daughters to follow him if he is refouled to Pakistan. At the second hearing, she repeated she and the two daughters would follow the Applicant to Pakistan if he is refouled. The Board accepted that the Applicant will suffer emotional and psychological harm if he is forced to separate from his girlfriend and their two daughters. However, it found any harm arising under BOR 19 or CRC due to such separation is not for a Convention reason to support a claim based on Persecution Risk or any other risks to support his non-refoulement claim.

42.  Applying the law applicable to its findings of facts in the Applicant’s case, it found the Applicant had failed to establish the factual basis in support of his claim under any of the four applicable grounds under the USM. Hence, it dismissed his appeal and affirmed the decision in the Director’s 2015 and 2017 Notices.

Legal principles applicable to judicial review

43.  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[8].

Grounds for judicial review

44.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he annexed a three-page submission setting out his grounds and arguments which all revolve around errors of law, procedural unfairness or irrationality in the Decision. On the second day of hearing, he produced a well-prepared seven-page submission which he said supersedes his earlier submission. He confirmed his latest submission contains all his grounds and arguments in support and he had nothing else to add. The Court therefore considers his grounds of application on the basis of his latest submission.

Paragraphs 1 to 4 of his submission: the Board’s finding of the Applicant’s credibility is irrational, speculative or unfair

45.  The Applicant argues that there is no basis to support the Board’s adverse finding of his credibility as its finding is speculative, not based on objective sources of information but on the Board’s own theory about what ought to have happened or how a claimant or other relevant person would or should have acted. He cited the following observations of Bingham MR in (1985) 38 Current Legal Problems 14:

“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.”

The Court has no disagreement with Bingham MR’s observation, which has been often cited and even adopted as a principle or test of objectivity: see, for example, Australian Government, Guidance on the Assessment of Credibility[9]. Speculative argument not founded on objective and reliable sources of information which reflects the decision-maker’s own theory about how the claimant or others could or should have acted, or about how certain events could or should have unfolded, violates the principle of objectivity. The decision maker should focus on what is objectively or reasonably believable in the circumstances. The Applicant quoted three instances when the Board impugned his credibility in breach of this principle.

46.  First, the Applicant referred to Paragraph 173 of the Decision in which the Board says, “it is difficult to reconcile that a printout of the online complaint would also contain a manually affixed wet stamp … which is highly incongruous with an online complaint system.” He submits that there is a clear explanation why an online complaint would have a wet stamp. He complains that rather than giving him an opportunity to explain, the Board relied on its own assumptions about how police complaints work in Pakistan to discredit him. Though the Board did not invite the Applicant for an explanation, in fact it had borne that explanation in mind, but considered it incredible as it is incongruous with an online complaint system. But that explanation was omitted by the Applicant in his quotation, see the complete quote of Paragraph 173 of the Decision below). The Board is entitled to test that explanation against common sense and inherent probability. Online applications and online payments through FPS are very common in these day and age. The common form of acknowledgement is an online confirmation reply from the recipient of the application or the agent effecting the transfer of payment, instead of physically attending the office of the recipient or agent to obtain a receipt. Making an online complaint and then going to the police station to obtain a stamped copy is indeed incongruous with an online complaint system. The Board did not reject his evidence out of its own prejudice or preconceived idea. It had in effect considered the Applicant’s explanation, tested it against common sense and inherent probability. It was open to the Board to find S’s evidence about the online complaint incredible.

47.  Second and more importantly, the Board’s observation was made under the heading of “Further observations about credible evidence”. In Paragraph 173, it was testing S’s evidence against inherent probability. The Board had admitted into evidence, inter alia, a witness statement of the Applicant’s brother S, the online complaint he made and his letter to the police dated 4 May 2018[10] (the “police letter”). In the police letter, S asserted that the Applicant faced many life-threatening attacks in Pakistan and was illegally implicated in a murder case, that people had come to S’s house looking for the Applicant three or four times. He said the most recent visit occurred on 2 March 2018 when S was not at home and the armed people threatened his wife when she was unable to tell them the whereabouts of the Applicant and those men seemed to be the same people who harmed the Applicant in the past. This is the evidence which the online complaint and the police letter which S sought to adduce and the circumstances under which the Board’s finding (against which the Applicant now complains) was made. The Board said in Paragraph 173:

“173. I noted above there are additional concerns about the evidence of brother S. Together with the police letter, the [Applicant] provided a printout of the online complaint that brother S made. Although it supposedly is an online complaint, on the face of it the document available to me appears also to bear a manually affixed wet stamp of the police. It is difficult to reconcile that a printout of the online complaint would also contain a manually affixed wet stamp, as that would require taking the printed page of the online complaint to a police station for the stamp to be affixed, which is highly incongruous with an online complaint system. Furthermore, the police letter states brother S was absent at the time the armed men threatened his wife, which causes me to query why brother S is the complainant in the online complaint. His absence at the pertinent time too draws into question, how brother S is able to conclude in the police letter that the armed men are the same men who harmed the [Applicant] in the past.” (My emphasis added)

In Paragraphs 174 to 176, the Board considered other unsatisfactory aspects of S’s evidence. Then, it concluded in Paragraph 177:

“The above are all reasons why I place less weight on the evidence of brother S.”

48.  Thus from Paragraphs 173 to 177, the Board was considering the evidence of S contained in his police letter and the credibility of his evidence about making the online complaint. It was not discussing about the Applicant’s credibility in these paragraphs, particularly not in Paragraph 173 relied on by the Applicant. In short, the Board did not find the Applicant incredible because of the presence of the wet stamp on the online complaint. The wet stamp is only one of the many other factors which weighed on the Board’s mind in its assessment of S’s credibility or the reliability of his evidence. The other factor is S’s assertion that the men who threatened his wife are the same men who had previously attacked him and the Applicant, which is inherently incredible as he was not present when the men threatened his wife.

49.  Third, the wet stamp or S’s credibility are not the determinant factors in the Board’s assessment of the Applicant’s credibility. After discussing about S’s credibility in Paragraphs 173 to 177, the Board went on to make other observations about prevalence of document fraud in Pakistan in Paragraphs 178 to 184, general concerns about credibility in Paragraphs 185 to 197, and credibility concerns about the false case of murder which is the centrepiece of the Applicant’s claim. Then, in Paragraphs 218 to 227, it concluded its discussion with a finding that the Applicant has not given a credible account that he is facing any charge arising related to the murder of MI2 and that there is no real risk of proscribed harm under any applicable grounds under the USM, if he is refouled to Pakistan. The Board’s observation in Paragraph 222 is pertinent. It said:

“222. However, the preponderance of the evidence before me undermines the [Applicant’s] claims that he is genuinely facing a murder charge for the shooting death of MI2 in the first shooting. Most significant is his never raising any claims related to fear he will face the death penalty if removed to Pakistan prior to the directions hearing. Additionally significant is the Pakistani authorities twice issuing new passports to him after he claims to have been bailed while facing prosecution for such a serious criminal offence as murder. Together with the overall inconsistencies and implausibilities in his evidence undermining his credibility. In addition, to a lesser degree, the inherent implausibility in the ‘magic bullet’ he claims caused the death of MI2. As well as [the Applicant’s] past behaviour in obtaining the UK passport demonstrating his willingness to use improper means obtain an immigration advantage. I am unwilling to give the [Applicant] the benefit of the doubt. I reject as not credible that the [Applicant] was arrested for, or charged with, the shooting death of MI2after the first shooting. …” (My emphasis added)

Thus, in the Board’s mind, the two most important reasons or basis for its finding the Applicant incredible and rejecting his evidence are his never raising any claims of fear that he will face the death penalty if refouled and the Pakistani authorities twice issuing new passports to him. The third most important reason is the many cumulative inconsistencies and implausibilities in his evidence. And then to a lesser degree, the implausibility about the ‘magic bullet’. The wet stamp was not mentioned at all. Even if it is one of the factors erroneously taken into account by the Board as contributing to its finding of inconsistencies and implausibilities in the Applicant’s evidence, fades out into insignificance.

50.  For the above three reasons, there is no substance in this ground of application based on the Board’s assessment of S’s incredibility by reason of its finding relating to the online complaint.

51.  The second instance relied on by the Applicant under this ground is the Board’s finding in Paragraphs 194 and 195 of its Decision that “it is difficult to perceive a plausible explanation where the UK authorities would deport MI, rather than prosecute him.” It is arguably unfair for the Board to rely on this alleged implausibility when the UK immigration authorities could have valid reasons for deporting someone who has also been convicted of an offence. The Applicant also claims that the UK currently has a policy called “Early Removal Scheme” which allows the UK government to remove foreign national offenders from the country before the end of their prison sentence.

52.  The Applicant’s evidence is that at the time of his arrest for using the false UK passport, he informed the UK police that MI was involved in illegal activities including immigration, banking and insurance fraud which led to the arrest of 20 to 27 other people. In his NCF, he said that before his trial in the UK commenced, his father told him that MI was in Pakistan making threats against the Applicant. This is consistent with his witness statement to the Home Office and the Asylum and Immigration Tribunal (the “AIT”) in the UK that MI was deported from the UK. However, he also told the Board that while serving his sentence in the UK, his solicitor informed him that MI was convicted and sentenced to five to seven years’ imprisonment. This evidence is plainly impossible and inconsistent with his other evidence that MI had been deported from the UK and making threats about him before his trial in the UK commenced. The Board said in Paragraph 195:

“195. … If MI was genuinely involved in such serious fraud and conceivably would have been a witness of some nature in the trial of the 20 to 27 other people, it is difficult to perceive a plausible explanation where the UK authorities would deport MI, rather than prosecute him. That implausibility, together with the inconsistencies in whether MI was in Pakistan before the Applicant sought voluntary removal to the UK (sic) or whether MI was serving a length prison sentence in the UK at the time the [Applicant] returned to Pakistan are further parts of the [Applicant’s] evidence that weighs against his credibility generally.”

As for the other valid reasons and the Early Removal Scheme which the Applicant suggests could explain MI’s removal to Pakistan, not only were they mere assertions not supported by credible evidence, they were never before the Board. The Applicant is asking the Board to speculate. Even if MI had been removed to Pakistan, that could not explain the inconsistencies in the Applicant’s evidence. In one version of his account, MI had returned to Pakistan before the Applicant’s trial commenced, while in another version of his account, the Applicant was told much later while he was serving his nine months’ sentence that MI was convicted and serving a five to seven years’ sentence, which could not have been fully served while the Applicant was still serving his nine month term. One wonders why in the circumstances, he would not have questioned his solicitor as to the truth of what his solicitor said. Besides, it also begs logic that the Applicant who was convicted of a minor offence of simple possession of a false UK passport calling nine months’ imprisonment was not returned while MI who was convicted of more serious offences and sentenced to five to seven years’ imprisonment was. The Applicant’s story is simply one which was not well-concocted and not credible. There is no substance in this complaint.

53.  The third instance relied on by the Applicant in this ground is the Board’s observation about the ‘magic bullet’ and his evidence that he did not suffered any pain to his ear despite a gunshot was fired at arm’s length from his hand. He challenges the Board’s adverse finding of his credibility based on these observations as irrational and speculative.

54.  The Board discussed the evidence about the magic bullet in Paragraphs 198 to 204 of the Decision. It made its assessment on the basis of the sketch of the site of the shooting drawn by the Applicant and the relative position of MA, MI2 and himself at the time the gun was fired. It considered the concerning issue is the angle at which the Applicant claims the bullet could ricochet off the wall directly behind him to hit MI2 who was standing beside the shooter. It was mindful that the sketch was a rudimentary one based on the Applicant’s memory of something he claimed to have occurred almost 20 years earlier. It had considered the quotation from ballistic textbooks referred by Applicant’s representative about possibility of a bullet ricocheting in the circumstances claimed by the Applicant. It also took into account the Applicant’s evidence that he did not suffer any pain in his ear as a result of shooting. After considering all these matters, it came to the conclusion that it was not persuaded by the Applicant’s account of the shooting incident and theory as to how MI2 was shot. The Board exercised extreme care before reaching its conclusion. The conclusion is a finding of fact open to the Board to make on the available evidence, which this Court may not intervene by way of judicial review.

55.  The Court repeated its observation in Paragraph 50 that the ‘magic bullet’ is just one issue of lesser significance which the Board took into account in reaching its decision on the Applicant’s credibility. It also emphasised the importance that finding of fact must be based on the entirety of the available relevant evidence as submitted by the applicant and gathered by the decision maker by its own means. This finding is not to be impugned merely because some finding of less significance is found to questionable while the overwhelming evidence in support stands.

56.  In conclusion, there is no merit in this ground of application.

Paragraphs 5 to 9 of his submission: Rejecting material facts for want of documentary evidence

57.  The Applicant complains under this ground that the Board erred in wrongly impugning his credibility by rejecting some material facts on the basis that he was unable to provide documentary evidence. He relied on two instances mentioned in Paragraphs 188 and 202 of the Decision. He submits that it is hardly possible for a refugee to prove every part of his case and the relevant approach to evidence allows the decision-maker to accept an asserted material fact as credible even where there may be no other corroborative evidence to support the fact. He quotes the following passage from Paragraph 196 of the UNHCR Handbook[11] in support of his proposition:

“… 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. … In such case, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

58.  This approach is accepted by the Court of Appeal in Hidayah[12], which held that although a claimant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on a claimant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible. But, it should be noted that the guideline in UNHCR Handbook is not a rule of law nor is it intended to be a tight jacket. Its application depends on the circumstances, in particular the circumstances under which the applicant fled his home country. Similarly, in Hidayah, the principle applies subject to no adverse finding of credibility against the claimant. Though the claimant’s burden is to prove his case on a low standard, it does not mean whatever he asserts is not to be taken with a grain of salt.

59.  In Paragraph 188 of the Decision, the Board said:

“Although I specifically requested he do so, the [Applicant] provided no supporting evidence that AM holds the ranks of major or lieutenant-colonel in army or that he was a former personal guard of a president of Pakistan. Nor did the [Applicant] follow my request to provide supporting evidence that MT worked for the FIA. I raised his not providing the requested evidence with the [Applicant]. He replied that he wanted to provide that evidence, but I refused the request to hear evidence from brother S. I noted he had already provided many documents via his brother S. He claimed it was not possible for his brother S to get the documents about AM and MT’s ranks. I noted he also had the assistance of a lawyer in Pakistan to obtain documents. The [Applicant] then had no further comment. While I remain mindful I cannot compel the [Applicant] to provide evidence to verify his claims, he has already provided a large amount of documentary evidence. That he did not provide any evidence to establish AM’s role with the army or Mt’s role with the FIA causes me to have doubt that either person holds the claimed rank. Particularly where the [Applicant] also claims they are his relatives and have held positions with the army/FIA at least since 2005. And particularly in the case of AM where the [Applicant] claims he was a person of such high status as a former president’s personal guard.” (My emphasis added)

60.  From the Decision, it is clear that the Applicant is not a person fleeing his home country from imminent threat to his life. He left Pakistan through usual check out point using his Pakistani passport and travelled by air like any international traveler. He has been in Hong Kong for 11 years pursuing his non-refoulement claim. He has been maintaining contacts with his family in Pakistan. He has a brother who has been assisting him in obtaining evidence and he has the services of a lawyer. Before he came to Hong Kong, he had been engaged in the legal proceedings relating to the murder charge for about seven years. Prosecution was ready, so must his defence. Though the trial was delayed, he says, by his cousins he must have all the materials relating to the case at the time he left Pakistan or access to the materials since his departure.

61.  At the pre-trial hearing, the Board specifically requested for the evidence relating to AM’s and MT’s position in the army or FIA. The Applicant’s initial response was that he wanted to provide that evidence, implying that the evidence could and would be available. He only put the blame on the Board for not allowing his brother to testify via video link. It was only when the Board replied that his brother had given a witness statement and produced a lot of documents that he said it was not possible for his brother to obtain the documents about AM’s and MT’s rank. It was only under those circumstances and after having regard to his claim that AM and MT are his relatives and have held positions in the army and FIA that the Board entertained doubts that his cousins held the ranks as he alleged. The Board did not reject that aspect of his evidence in its entirety. It accepted his evidence about the existence of his cousins as he asserted. The doubt is only limited to whether they held those ranks. The Applicant is not in the same situation as someone leaving his home country hurriedly running for his life. In my view, the above circumstances are good reasons for the Board to find the assertion not credible.

62.  The Applicant complains that the Board drew adverse conclusions about the shooting incident by pointing to the fact that he did not produce any police photographs of the site where the shooting took place and did not provide any photographs of his hand injury. In Paragraph 202, the Board said:

“The [Applicant] confirmed he was aware the police photographed and took measurements of the site of the first shooting adding he believed that was normal police practice. Noting these documents were not in the Bundle, he offered to attempt to get them from the court file in Pakistan. It is convenient to add the comment here that neither he nor the [Applicant’s] representative ever requested me to allow extra time to obtain those documents, and as at the date of this decision, there are no new documents from the Pakistani court file before me. I asked if he knew if any ballistics report was done on the bullet to match it to the gun. He claimed he was unaware. I asked if his hands were tested for gunshot residue. He claimed that he was not, because of injuries to his hands. He told me he had no other injuries which strikes me as being odd that he did not suffer any pain to his ear if a gunshot was fired arm’s length from his head. I am mindful too the [Applicant] has not provided photographs of any injuries or scars to his hands, which he claims suffered burn injuries from his taking hold of the gun. (My emphasis added)

63.  By no reading of this paragraph in isolation or the Decision as a whole can the Court find any support for the accusation that the Board drew adverse inference from the Applicant’s failure to produce photographs. What the Board did was to put a marker on the absence of the evidence or putting that absence in the weighing pan. It drew no inference, let alone an adverse one. After setting out the background, the law, the Applicant’s claim and the evidence, the Board started its analysis of the evidence at Paragraph 110. In Paragraphs 110 to 153, it made some finding of the law, including the death penalty under Pakistan law and discussed the approach to be adopted in making its finding of fact. It ended the discussion with the conclusion that it shall first consider whether the Applicant is genuinely facing any prosecution at all in Pakistan under scenario three. In Paragraph 155 to 169, it collated the evidence in favour of finding there is a case against the Applicant, including the consistencies in the evidence, the volume of supporting documents, the Pakistani lawyer report, the COI, and the result of its own search of the website of the Pakistani court. In Paragraphs 170 to 196, it collated the evidence against finding there is a case against the Applicant, including its observations about the inconsistencies and implausibilities in the above evidence, and the COI about widespread document fraud in Pakistan. It concluded in Paragraph 197 that the multiple material concerns with the credibility of the Applicant individually and cumulatively all weigh in favour of not accepting his claims to be credible. From Paragraphs 198 to 204, including Paragraph 202 complained of, the Board discussed about the evidence relating to the ‘magic bullet’. Up to this stage and even thereafter, there is nothing to suggest the Board drew any adverse inference against the Applicant because of the absence of documentary evidence or photographs. As already pointed out before, the ‘magic bullet’ is not a significant factor leading to the Board’s finding. The more significant factors which the Board placed more weight on are the Applicant’s lack of concern about the death penalty which he would face on his return to Pakistan, the twice issue of his passport, the freedom with which he could move in and out of Pakistan and the inconsistencies and implausibilities as discussed by the Board from Paragraphs 205 to 217. The Board weighed all the evidence carefully. Its comment in Paragraph 202 has been grossly blown out of proportion.

Paragraph 10 of his submission: The Board’s reliance on COI about fraudulent documents being readily available in Pakistan

64.  The Applicant says he is more troubled by the Board’s observation in Paragraph 183 of the Decision in which the Board said, “COI about fraudulent documents being so readily available in Pakistan … is another reason which leads [the Board] to place less weight on all the documents the [Applicant] has provided from Pakistan.”

65.  Credibility must be assessed on the basis of the entire evidence and not on a particular piece of evidence asserted or relied on by the claimant in isolation. The evidence must be understood and its credibility assessed in its context. Considering isolated incidents out of context may be misleading. Understanding the conditions and relevant risks in the risk state is a critical means of putting a claimant’s evidence in context: The Law of Refugee Status[13]. Invariably, a claimant flees from his home country to seek protection from the host country. Obviously, the conditions in the home country from which the risk of harm arose and everything capable of having a bearing are highly relevant and have to be considered and given weight, great or little. In an appropriate case, it may even be necessary, not just appropriate, to test his claim or his evidence against those conditions. The Board must look at all the evidence in the round, try and grasp it as a whole and see how it fits together and determine on that basis whether it is sufficient to discharge the burden of proof. The Board has no knowledge about those conditions. It is therefore necessary for the Board to have reference to COI from credible and authoritative sources.

66.  The COI referred to by the Board are from independent, authoritative and credible sources, such as the Australian Department of Foreign Affairs and Trade and the United Kingdom Home Office. The Pakistani documents which the Board had in mind are the First Information Report (“FIR”) relating to the shooting cause the death of MI2 in January 2006, the second FIR relating to the third attack on the Applicant after his release from bail in May 2012 when his brother S was shot in the leg, the court papers relating to the murder charge[14] and some other non-controversial documents such as the Applicant’s Pakistani identity card and a copy of the biodata page of the Applicant’s former Pakistani passport. The first two items, ie the FIRs, are the type of fraudulent documents specifically mentioned by the United Kingdom Home Office. The COI also explains the prevalence of this type of fraudulent document because corruption is widespread across all sectors and government institutions; and that some police accept bribes to register or verify false complaints. Though the COI did not mention court documents, in view of the widespread corruption, the environment and atmosphere across all sectors and government institutions, the same caution necessarily arose in respect of those documents. Clearly, such COI is part of the context which should be taken into account by the Board in assessing credibility of the Applicant, his documents and his case. The Applicant has not quoted any COI to contradict the two relied on by the Board. The Board’s reliance on the COI could not be criticised.

67.  Furthermore, the Board did not, as the Applicant tends to suggest, reject whole scale all the Pakistani documents submitted by the Applicant. What it did was to place less weight on those documents. A detailed consideration of the Decision as the Court analysed above shows that the Board put everything into the weighing pan and then looked at all the evidence in the round and grasped it as a whole to see how it fits together and determine on that basis whether it is sufficient to discharge the burden of proof. This is what a decision-maker is entitled to do and should do. The most significant concerns which led to the Board’s conclusion about the Applicant’s credibility are the absence of fear that he will be facing the death penalty on his return to Pakistan and the ease with which he could twice obtain a Pakistani passport while he claimed he was on post-arrest bail during the course of a murder trial and with which he could move in and out of Pakistan through proper immigration channels. The murder charge and associated issues such as the ‘magic bullet’, the court documents only formed the third significant element in the Board’s mind. In my view, the Board had properly considered the evidence, had correctly taken into account the COI and made a finding of fact which is solely within its province. As for the question of weight to be attached to each piece of evidence, it is also a matter solely for the Board. There was no procedural unfairness in the making of the credibility assessment and its finding is rational. The Board’s credibility assessment and finding of fact is one which this Court in an application for judicial review may not intervene.

Paragraph 10 of his submission: unfair, unstructured, biased and irrational

68.  This is a wrap up ground which has been fully considered above and will not be repeated. One matter raised by the Applicant which calls for a response is that while accepting that his core claim has remained consistent, the Board nevertheless relies on speculative reasons and arguable minor inconsistencies to impugn other parts of his claim and dismissed his claim. For reasons as explained, the Decision is a well considered decision. It is detailed and well-structured. All the evidence and documents are fully set out and analysed. Its findings are well explained. The Board has not relied on speculative reasons.

Conclusion

69.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review which is not permissible. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. Though it accepted part of his case, it found the Applicant incredible on the centerpiece of his case. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are findings of the law, they are absolutely correct. Insofar as they are findings of fact, they are 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 that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant 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. 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