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

HCAL 81/2017

[2020] HKCFI 2950

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

LIST NO 81 OF 2017

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J U D G M E N T

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Introduction

1.On 7 September 2017, I granted leave to the Applicant to apply for judicial review against the decision[1](“the Decision”) of the Respondent[2] (“the Board”) dismissing the Applicant’s appeal against the decision of the Director of Immigration refusing the Applicant’s non-refoulement claim.  I also granted leave for the Applicant to amend his Form 86.

2.On 5 March 2018, the Department of Justice, acting on behalf of the Interested Party, sent a letter to this court indicating that the Interested Party takes a neutral stance in this application.  In the letter the Department of Justice observed that in the Decision the Board might not have properly considered the argument of the Applicant that the arrest warrant produced by the Applicant was a piece of evidence in support to his claim that he was wanted for blasphemy.  

3.In the same letter the Department of Justice sought the court’s leave to allow the Interested Party to be excused from attending the hearing.  Leave was duly granted. 

4.The judicial review was heard on 27 July 2018 and at the end of the hearing, I indicated that judgment be reserved to be handed down.

5.On 19 February 2019, solicitors for the Applicant wrote to this court saying that the Applicant has been approved for permanent residence in Canada and arrangements have been made for his departure.

6.Hence, the present application has become academic. 

The Applicant’s claim

7.The following factual background is essentially adopted from the skeleton argument filed by Ms Souza, counsel for the Applicant.

8.The Applicant is an Ahmadi muslim.  He and his family are members of the minority Ahmadi religious community in Pakistan. 

9.It is the Applicant’s case that since childhood, he had been subjected to discrimination by reason of his religious belief.  He and his family members were attacked by others out of discrimination and the attacks continued to intensify, leading eventually to threats of death against them.

10.The Applicant fled from Pakistan on 29 May 2009 and arrived at Hong Kong on or about 8 June 2009. In 2011, he came to learn that a First Information Report was filed against him and an arrest warrant was issued against him, alleging that he preached the Ahmadi faith and had acted contrary to anti-blasphemy provisions of Section 298B and 298C of the Pakistan Penal Code.  A person convicted under these provisions of the Pakistan Penal Code can face severe penalties ranging from lengthy terms of imprisonment to the death penalty.

11.The Applicant has joined the Ahmadi community in Hong Kong.

The Decision

12.In assessing the credibility of the Applicant, the Board has the following to say in their written determination[3]:

“6. The Appellant’s thesis being the basis of his application for non-refoulement, we find not to be credible. For other reasons we also find him of dishonest propensity, his alleged story unreliable, and that he is not a genuine claimant. The relevant aspects are now listed below.

7. The Court of Appeal has said that a claimant who does not raise a torture claim as soon as he arrives in Hong Kong, it is only after he is arrested that he decides to do so, casts doubt on the veracity of the claim: see Usman Butt, Sunil Koirala, Wasim Ashraf & others: HCMA 70, 114, 244, 379, 402/2010 (the case was a Magistrates Appeal decided in the Court of Appeal) judgment at §41. Various aspects on credibility are enacted in Section 37ZD of the Immigration Ordinance, Cap. 115 (“the Ordinance”), and one should pay attention to the same.

8. The Appellant did not raise any claim when he arrived in Mainland China, nor did he do so for a month when he was there, nor did he do so on arrival in Hong Kong, nor did he do so for 10 days when he was here: Section 37ZD(1)(c) of the Ordinance. He decided to sneak into Hong Kong, which he must know was an unlawful and dishonest act: Section 37ZD(3). Instead of approaching any official or to raise his alleged dire fears, he chose to do stay undected, yet 2 days after arrest he now raised such a claim: Section 37ZD(1)(e). When asked about this at the oral hearing his reply was “I had no information while in China”. But “information” is irrelevant and only an excuse for doing nothing. If he was genuinely in fear for his life, he would have grasped a police officer, or any government official, or indeed anyone while in Mainland China to cry for help. But he did nothing.

9. Regarding his sneaking into Hong Kong, at the oral hearing he said he had done this “on foot” after crossing a nullah or stream at night, went inside a pipe, through a hole in the fence, and walked into Hong Kong. He agrees that he knew this method of entry was unlawful, but he then denied dishonesty by saying “I did not think”. His denial of dishonesty in the circumstances of his illegal act shows dishonesty.

10. Discrimination, per se, is not a basis for an application for non-refoulement unless it is accompanied by “serious harm” which puts a claimant into the category of Torture, CIDTP and/or Persecution. Membership of a religious group which leads to serious violence and harm indeed comes into one of the “Convention Categories” in refugee law, but mere discrimination, without more, is not sufficient to found non-refoulement. In the instant case, even on the Appellant’s own story, he had never suffered “serious harm” to put him into Torture, CIDTP or Persecution.

11. In relation to “Incident 1”, the Appellant says that while at school he was merely trying to put the Muslim sticker back onto the notice board, in other words doing the correct thing by the Muslims, yet he says that Yunis and other students had proceeded to assault him. This we find it illogical and contrary to commonsense and unworthy of belief. When asked about this at the oral hearing, he maintained that he was “being a good boy” to put back the notice onto the board, yet he was assaulted. When asked at the oral hearing as to whether he complained to his teacher or the principal about this injustice, he evaded the question and merely repeated his alleged version of events.

12. Furthermore, when “Incident 1” is examined its proper perspective (if the incident had occurred at all), even on the Appellant’s own version he was assaulted only because of a false belief by his classmates that he was pulling off a notice, but not because he was an Ahmadi. If he had been assaulted because he was an Ahmadi, this incident would not have been “Incident 1” but perhaps “Incident 50” because he was able to study up to Class 10 despite the fact that he was an Ahmadi. It is inconceivable that he could have “survived” thus far without any or any significant incident for 10 years, and especially when, even on his own version, people had known that he was an Ahmadi long before then (see Non-refoulement Claim Form, QA.35, at paragraph 10). We find the Appellant’s story regarding causation in “Incident 1” fabricated and not credible.

13. In order to add strength to his thesis of “persecution against Ahmadis”, he says that in the FIR he was accused of having preached Ahmadi beliefs and used Muslim utterances which were prohibited for Ahmadis (see Record of Interview at QA.48), but this is no more than a bare assertion, for he admits to be unable to produce the relevant FIR. Coupled with the Country of Origin Information (“COI”) to which we will refer later in this Decision, we find the Appellant to be fabricating evidence exaggerating and embellishing his case.

14. He did not dispute the fact that there are “2M to 4M Ahmadis living in Pakistan” (Record of Interview at QA.54), and he confirmed this at the oral hearing. When asked why, if his thesis was true, 3M Ahmadis can still be alive in Pakistan without being wiped out, he first said “This is because people do not know the 3M were Ahmadis”. When asked how the figure of 3M came to light, he said passport officers would know because a special application form has to be completed by Ahmadis. When asked if that was so, and the allegedly anti-Ahmadi Government knows the names, addresses, and personal data of these passport applicants, why in that event there are still 3M Ahmadis alive in Pakistan, he evaded the question and could provide no answer. We do not accept the Appellant’s thesis that he is subject to killing because he is an Ahmadi. If he was not a troublemaker he would not have been expelled by his school, nor would he have been recommended to leave College. If he was not being wanted by the police under warrant, and is now a fugitive from legal sanction, we fail to see why he is not able to live in Pakistan similar to the other 3M Ahmadis.

15. Although the content of the DVD which he produced (see paragraph 4 above) shows incitement to violence, and violence against Ahmadis by certain extremist groups, it equally and clearly shows that the Pakistani Constitution and the Government do not accept intra-religious clashes. This explains why there are 3M Ahmadis who can reside in Pakistan and are not wiped out. The totality of the evidence clearly shows that the Appellant is not singled out for Torture or CIDTP or Persecution because he is an Ahmadi.

16. Furthermore, when he was studying at College his fellow classmates had known he was an Ahmadi for a significant length of time “trying to convert him into being a Muslim” but there is no allegation of serious harm such as to put him into the category of Torture or CIDTP or Persecution. Even on his own version he only says the classmates had “treated him unfairly”, but he has not spoken of serious harm (Record of Interview at QA.18). This was confirmed by him during the oral hearing.

17. On the Appellant’s own version of the story his family members are all Ahmadis, but his parents, who are in their mid-sixties, have not been harmed or killed due to their being Ahmadis. Furthermore, at the oral hearing he admitted that his colleague Qamar (in the courier company) who was a Muslim, “got along with me very well”. The picture does not indicate the Appellant had suffered or will substantively risk suffering from Torture or CIDTP or Persecution qua an Ahmadi.

18. In addition to twice being “expelled” from educational institutions, the Appellant is now accused of having assaulted Abbas’ brother. The Appellant claims he had done absolutely nothing wrong, but that he was only a victim on the receiving end. This does not accord with common sense. We find the Appellant to be the cause of his own troubles, only he refuses to admit any blame.

19. Worse still, in relation to “Incident 3” he says he was assaulted “until his father came and begged the assailants to stop”, and the assault had then stopped. If the assault had really been because he was an Ahmadi, then the assailants would not have stopped merely because his father, also an Ahmadi, had begged them to stop. When asked about this in the oral hearing, he said “maybe because of many people who came to the scene, and my attackers were afraid (to do more)”. But on his own thesis the Pakistani Police and the Government were in acquiescence condoning violence committed on Ahmadis, hence there would have been no reason for the assailants “to be afraid to do more”. When asked about this the Appellant could not explain. We do not accept the Appellant’s story and his thesis, both of which are inconsistent within his own version.

20. Why did the Appellant leave Pakistan? Why did he sneak into Hong Kong illegally? Why had he not raised any claim over his alleged fears for 2 months since departing Pakistan, and why did he choose to remain undetected in Hong Kong for 10 days, yet after arrest he raised a claim 2 days thereafter? The answers to all these matters no doubt the Appellant himself knows, but as the burden of proof is on a claimant, he who is not honest and genuine fails to establish his case, which dismisses the claim, irrespective of the fact that all the alleged misfortunes, even if existed, did not establish a substantial risk of Torture or of CIDTP or of Persecution.

21. For the above reasons we find the Appellant not a credible witness.  We place no credence in his story, and there is nothing to support his claim and the appeal.  We realise that even if a large part of the alleged story is not believed, the Appellant may still be at risk on return.  However we have considered his story in the round.  As we find the Appellant not credible, there is no reliable set of facts to found a case for non-refoulement, and the Appellant has not discharged his burden of proof.”

13.Essentially, the Board noted that the Applicant has delayed in filing his non-refoulement claim after he sneaked into Hong Kong, he was being evasive in answering the Board’s questions at the hearing, his alleged maltreatments by others at school were not because of his being an Ahmadi, and there was insufficient evidence to show the Applicant was singled out for torture or persecution because he is an Ahmadi.

14.Regarding persecution risk, in particular, the Board has the following findings[4]:

“50.   For reasons stated, there is no evidence, less still any medical evidence, to show that the Appellant has suffered any severe injury or serious harm which would place him within the criteria of Persecution.  In any event, for reasons stated we find no substantial ground to believe that he will face a future risk of serious harm.  Furthermore the COI shows reasonable availability of State protection from such harm.  Furthermore, two private citizens Yunis and Abbas, even including the unspecified “priests”, do not come under the meaning of “Populace” in refugee law.  The situation falls far short of establishing “Persecution Risk”, and the appeal fails under this topic even on the Appellant’s own alleged set of facts.

51. Further and in any event, he is safe to reside in Pakistan, at least other than in his home locality, which is a reason in addition to, and independent of, the reason in the paragraph above for a claim under “Persecution Risk” to fail even on the Appellant’s own alleged set of facts.”

15.In conclusion, the Board said[5]:

“52. On the Appellant’s own admission he is a fugitive of the law who sneaked into Hong Kong illegally in order to hide his tracks which we find to be his real purpose of departing Pakistan. There is no evidence to substantiate his thesis or to show that he personally has any substantial risk of Torture or CIDTP or Persecution is he returns to Pakistan.

53. Independent of the Appellant’s lack of credibility as a result of which his claim has fallen away, even on his own alleged set of facts, for numerous and independent reasons the Appellant fails to establish non-refoulement whether under the principles of Torture or BOR3 or Persecution.  The appeal is dismissed, and the decision of the Immigration Officer, dated May 2015, is hereby confirmed.” 

The Applicant’s grounds of judicial review

16.The Applicant has advanced 6 grounds of review in her Amended Form 86 which are as follows:

(1)  the Board failed to properly investigate/take account of/accord appropriate weight to relevant country of origin information (“COI”);

(2)  the Board failed to properly review and assess relevant evidence in the assessment of the Applicant’s claim in assessing all grounds of non-refoulement protection;

(3)  the Board erred in its approach to assessing credibility and made improper credibility findings against the Applicant;

(4)  the Board failed to properly assess and recognise persecution risk on the enumerated convention grounds as set out in the 1951 Convention on the status relating to Refugees;

(5)  the Board erred in its approach in assessing state protection/internal relocation; and

(6)  the Board erred in its application of the principles of state involvement/state acquiescence.

Discussion

17.I am not minded to address each of the above grounds one by one.  As indicated by the Department of Justice in their letter to this court, the Board has obviously neglected a piece of very important evidence in assessing the Applicant’s claim.  This piece of evidence is an arrest warrant issued against the Applicant in March 2011 for a violation of the anti-blasphemy laws under the Pakistan Penal Code. 

18.In fact, apart from the arrest warrant, the Applicant had submitted other documents which might help proving persecution because of his Ahmadi faith:

(a)   a copy of the Applicant’s passport confirming the Applicant’s status as an Ahmadi;

(b)  a letter from Ahmadiyya Jamat Hong Kong confirming the Applicant’s status as an Ahmadi; and

(c)   letters from the UNHCR and UK Home Office granting refugee status to family members of the Applicant from Pakistan who are also of the Ahmadi faith based on similar fears as alleged by the Applicant.

19.None of the above mentioned documents have been referred to in the Board’s written determination.

20.As submitted by Ms Souza, the Board’s failure to properly consider these documentary evidence, which are highly relevant and material, amounts to an error of law and is therefore rendering the Board’s finding of facts Wednesbury Unreasonable.

21.The warrant of arrest and other documents are forceful evidence which are inconsistent with the Board’s findings that there is no risk of persecution and that internal relocation is available.  The Board must provide good reasons in disregarding them. 

Disposition

22.The Applicant’s judicial review should be allowed.

23.The Board’s Decision be quashed.

24.Costs of the application be to the Applicant.

Costs order nisi

25.I order that costs of this application be to the Applicant to be taxed if not agreed.

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

Ms Denise Souza, instructed by Daly & Associates, for the Applicant