Mp v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 367/2017

[2018] HKCFI 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 367 OF 2017

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J U D G M E N T

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1.This is an application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board. This applicant is a Pakistani national who entered Hong Kong illegally and lodged a torture claim on 26 March 2009. His claim was dismissed by the Director of Immigration (“the Director”) on 29 May 2015 and 14 December 2016 (the latter date relates to the BOR 2 risk claim). The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 5 December 2016 and rejected it on 6 April 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 6 July 2017 and requested an oral hearing.  The applicant applied for legal aid but it was refused as was his appeal against that decision.  Counsel and solicitors appear on behalf of the applicant in this application on a pro bono basis.

3.This application was heard together with HCAL 394/2017 at the request of the solicitors because, although not connected, both the applicants were Ahmadi Muslims, the grounds were very similar and the adjudicator of the TCAB the same.  Both the appeals were considered by the adjudicator at about the same time, they certainly overlap as that appeal was heard about three weeks before this appeal.

Background

4.The basis of this applicant’s claim was that if he were to return to Pakistan he would be harmed and killed by people persecuting him for being an Ahmadi Muslim, by the bully in his village called Tariq as well as his deceased wife’s family.  All his fear and troubles stemmed from his faith and being an Ahmadi Muslim.  Both the Director and the adjudicator set out the applicant’s evidence and claim in full in their decisions so I only intend to summarise it here.

5.The applicant was a manual labourer but then owned an electrical appliance shop between 2004 and 2007.  Since 1996 he was also an assistant to the Ahmadi preacher in his village mosque.  There were five or six other families living in the village following this faith.  His was an elected post in their mosque.  In 1997, there was a sudden attack by a large mob on the Ahmadi Muslims in the applicant’s village; luckily his family were at home at the time and could barricade themselves safely inside.  Their mosque was damaged and tombstones broken.  Guns were fired at the applicant’s house and into the air.

6.A broadcast over their own mosque loudspeaker was made to the whole village asking the public and other villagers to shun the village Ahmadis; to stop selling them daily necessities which they did.  Later, some kind Sunni Muslim neighbours told the applicant that the mob had come in from a few nearby cities.  Because of the boycott, the Ahmadis had to travel outside of their home area to buy necessities; to shops where the store owners did not know them or know that they were Ahmadi Muslims.  Some Ahmadis from further away who heard of their predicament sent them daily necessities to help out.

7.After the attack, the discrimination against the Ahmadis became very obvious.  People would stand in front of them in the streets and verbally abuse them.  Rumours were rife that similar mob attacks were imminent to try and scare them to drive them out of the country, especially the younger ones. It was said the old ones did not matter as they would die soon.  The applicant and his fellow Ahmadi families did not report the attack or boycott to the police because of the belief nothing would be done about it.  This discrimination and persecution went on for six to seven years and they had to endure it.

8.Tariq was a local bully in the area and the applicant as well as other Ahmadis avoided the areas controlled by him.  Once he beat up the applicant’s uncle and cousin, both Ahmadis, putting his cousin in hospital but when his uncle complained to the police, not only did the police stand by and witness Tariq slap his uncle again and do nothing, the police arrested him for assaulting Tariq.  The applicant’s uncle was even charged with assaulting Tariq.

9.In 1998 the applicant fell in love with his wife who was from the sect of Ahle-Sunnat, the same sect as Tariq.  At first their relationship was kept secret but then his wife dared to convert to become an Ahmadi Muslim much to the chagrin of her family.  They married in 2000 and she did not see her family again.  Not long afterwards, they met Tariq on the street who threatened to kill them.  The applicant assumed it was because he converted his wife and married her.  They were both slapped and hit by Tariq.  Tariq was wearing knuckle dusters and broke two of the applicant’s teeth.  The applicant tried to make a complaint to the village Councillor but to no avail.

10.In about 2006 the applicant’s wife fell pregnant and she received a message from her family asking her to visit them for the first time since she married.  She walked to her family home about 20 minutes away.  She did not return that night and the applicant was too scared to go there himself to find her.  The next day her family sent a message saying she had died of a heart attack.  The applicant was convinced she had been murdered by poison by her family.  The applicant reported the murder to the police but since her brothers were supporters of the Pakistan Muslim League (Q) and were rich and powerful they were released very soon after they were arrested.  They were members of the same cast as the village Councillor who told the applicant afterwards he had to pay for making a complaint to the police or else his family would be killed.

11.Not long after this, the applicant’s business failed because the villagers were ordered not to visit his shop and buy from him; then his landlord was told not to rent the shop to him any longer.  On several occasions, he received threats from Tariq and the Councillor; Tariq beat him on the several occasions that he passed through Tariq’s area.  Eventually the applicant had to move out of the village in mid-2007 because he continued to have difficulty in buying food and daily necessities.  He went to Lahore.

12.The applicant hid in Lahore for several months until he saw Tariq one day and where he experienced the Ahmadi mosques being attacked even there.  Whilst he was there, his father was hit by a tractor at home which left him injured on the side of the road.  He could only  receive treatment in an Ahmadi run hospital in Rubwah, an area inhabited by many Ahmadis.  His parents lived there for one month whilst he recovered.

13.After he saw Tariq in Lahore, the applicant then went to Karachi to live for a few months where he continued to feel discrimination against his faith and religion.  His mother told him that his wife’s family heard he was in Karachi and were making their way to Karachi.  His mother advised him to leave Pakistan.  His brother helped him apply for his passport which was issued in October 2007.  He left Pakistan on 9 January 2008.

14.After eventually arriving in and spending some time in the Mainland, the applicant entered Hong Kong illegally.  The applicant has joined an Ahmadi association and mosque in Hong Kong; he actively prays and meets there regularly.  He then saw Tariq in Hong Kong in 2010; he ran away when he first saw him.  He has since seen him several times in Hong Kong and been threatened by him.  Tariq warned him he will be killed when he returns to Pakistan.  The applicant does not want to report him to the police in Hong Kong in case he causes trouble or harms his parents in Pakistan.

15.His parents now live in an Ahmadi community in Rubwah and his brother has sought asylum in the United Kingdom.  He has studied there and qualified as an Ahmadi priest.

The TCAB decision

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

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

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

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

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

17.The adjudicator of the TCAB is required to treat the appeal/petition as a rehearing.  It requires a fresh and independent decision of the claim by the adjudicator; X v TCAB HCAL 143/2013, 4 September 2014 Zervos J §29.  The adjudicator does not discharge an appellate role.  The applicant was legally represented during the appeal.

18.The adjudicator identified the applicant as having three sources of fears; the applicant fears being harmed or killed by Sunni Muslims because he is an Ahmadi, he fears being harmed or killed by a thug in his home village called Tariq and he fears being harmed or killed by the two brothers and/or family members of his deceased wife.  The wife he converted to his faith and the wife he suspected her family killed because of this.

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

20.The adjudicator made a finding on the applicant’s own facts that he had no claim under the torture, BOR 3 or BOR 2 grounds.  He also went on to make a finding there was no persecution risk because there was no evidence/medical evidence the applicant had suffered severe injury or serious harm which would place him within the criteria of persecution.  He found no substantial ground to believe he would face any substantial future risk of serious harm.  The adjudicator said the requirements for non-refoulement under persecution are “virtually the same” as under BOR 3, hence those findings.

21.The adjudicator added the applicant was safe to live in Pakistan, “at least other than in his home village, which is a reason in addition to, and independent of, the reason in the paragraph above for a claim under persecution risk to fail”.  Which may be true if internal relocation is analysed properly but different considerations may apply to the applicant who is an Ahmadi who practices his faith openly which the applicant claims he does.  This will need to be looked into in light of the country guidance case of MN.  There is no mention of this here in the decision.

22.After the adjudicator found the applicant had not succeeded under any of the four applicable grounds on his own facts and evidence as if they were true, he then went on to consider the issue of credibility which he said was independent of his determination.  He found the applicant so unreliable he would have failed to establish his claim, irrespective of the fact that “all the alleged misfortunes, even if it existed, failed to establish any substantial risk of torture or of CIDTP or of persecution”.  He went on to point out why he found the applicant dishonest and unreliable.  The fact the applicant did not raise a torture claim as soon as he arrived in Hong Kong and only did so after he was arrested casts doubt on his credibility.  The fact he did not raise any claim when he passed through Bangkok or the Mainland did the same.  The fact he entered Hong Kong illegally rather than through Immigration channels shows he is dishonest.  Why he left Pakistan and why he chose Hong Kong affected his credibility.  The fact in his first written representation dated March 2009 he made no mention of the fact he was an Ahmadi until his non-refoulement claim form nine months later affected his credibility.  The adjudicator unfortunately did not say whether the applicant’s evidence as to what happened to him in Pakistan is credible and if not, why. It is unclear whether he believed he is an Ahmadi Muslim or not.  The adjudicator then confirmed the decision of the Director.

Leave to apply for judicial review

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

24.Mr Wong, Counsel for the applicant identifies the central issue in this application for judicial review succinctly.  The applicant says he belongs to a faith that has been identified by the International community as being persecuted for their beliefs; the persecution is the worst in Pakistan.  The UK has issued country guidance specifically relating to the persecution of the Ahmadi Muslims. That country guidance was last updated in 2012 from 2008.  Mr Wong identifies the issue here as a failure by the TCAB to take the proper approach in assessing the persecution risk of an Ahmadi according to that country guidance which takes into account the current situation in Pakistan.

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

26.One of the grounds of appeal to the TCAB was that the Director did not consider religious persecution; a failure to take into account religious persecution of Ahmadis.  The applicant’s duty lawyer wrote in her submissions to the TCAB that the Director failed to analyse the persecution faced by the Ahmadis Muslims in Pakistan and in turn, the applicant, despite the COI information indicating that they were subject to serious discrimination/oppression in Pakistan.

27.The duty lawyer submitted there was a failure to consider the risk to the applicant who held a religious position and professed his religion openly as an assistant preacher and practising Ahmadi which meant he faced a high risk of persecution and government prosecution since there was legislation targeting and persecuting the Ahmadis.  This was how the duty lawyer put forward the applicant’s case.  She made direct reference to and quoted from the case of MN, the Country Guidance case.  Counsel in this application submits this was all ignored by the adjudicator; no reference was even made to this submission.  It was not even rejected.  This is ground 1.

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

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

Ground 1

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

31.It would seem from a reading of the decision the adjudicator did accept the applicant was an Ahmadi; at para 19, the adjudicator says internal relocation does not help the applicant as an Ahmadi if he causes trouble by taking part in violent protests because there are anti-Ahmadi people all over Pakistan who will go after him if he does so.  This means if the applicant is discreet about his faith and only practices it in private then internal relocation is available to him.

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

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

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

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

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

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

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

39.There is heavy criticism from the adjudicator that the applicant and/or his duty lawyer produced a pile of over 100 articles and publications as his COI information and his legal representative has not listed which pages are relevant for his consideration.  However, I have had sight of the duty lawyer’s written skeleton arguments she submitted and find citations of sections, pages and paragraphs for COI information she wished to draw to the attention of the TCAB.  I have the list of authorities exhibited and find a total of 22 authorities and COI, which included articles were submitted.  It would appear the criticism is unfounded.

Ground 2

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

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

Ground 3

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

43.It would seem the credibility or lack of, comes from him entering Hong Kong illegally and his answer that he did not know such entry into Hong Kong was unlawful.  The adjudicator was of the view that this answer showed he was dishonest.  The adjudicator found him dishonest and his story unreliable.

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

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

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

47.Therefore, having heard this ex parte application and submissions, I find the three grounds are reasonably arguable and I give leave to the applicant to judicial review the decision of the Torture Claims Appeal Board dated 6 April 2017.

Mr Albert N B Wong, instructed by Daly, Ho & Associates, for the Applicant