Mr v. Torture Claims Appeal Board

HCAL 2155/2018

[2021] HKCFI 96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2155 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for judicial review be granted;

2.  The Applicant’s costs be in the cause of the application; and

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Pakistan who entered Hong Kong illegally on 20 December 2008 and was arrested by police on 3 April 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his wife’s family for allegedly abducting her and forcibly converting her religion from Islam to Christianity and/or by the police and/or the Muslim community as it was considered as a serious criminal act and a blasphemy in Pakistan. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in a Christian family in Village Tarowal, Tehsil Wazirabad, District Gujranwala, Punjab, Pakistan. After leaving school he worked in an office where he met a Muslim girl K with whom he later fell in love.

3.On 16 November 2001 they eloped to Sialkot City where the Applicant placed K in the care of his maternal grandmother, and returned to his home on the same day to avoid any suspicion from her family.

4.After her family found K missing, they made a report to the local police, and when they eventually realized that the Applicant was involved, her parents came to him to demand that he returned K to her family or else they would make sure that his family would disappear too.

5.To avoid further threats from K’s family, the Applicant’s parents moved their home to Gujranwala City, while the Applicant fled to his grandmother’s place in Sialkot to inform K of the threats from her parents, and as a result they decided to get married, and with the assistance of a pastor, K was baptized as a Christian on 16 April 2002, and 4 days later they quietly got married and moved into their new home in Sialkot where the Applicant found a new job, and subsequently raised a family of 2 children.

6.One day in 2004 when the Applicant was on his way home from work, he was suddenly confronted by K’s brother and another man who proceeded to beat him until some passers-by intervened and the Applicant managed to make his escape from the scene and fled home.

7.About 2 months later while the Applicant was waiting for the bus at Chand Da Quila, he was ambushed by K’s brother with another man who punched him and slashed his left arm with a knife before they fled after some passers-by tried to call the police, and the Applicant had to receive medical treatment for his injured arm.

8.After the knife attack, the Applicant moved with his family to Karachi to stay in a relative’s place before moving to Village Chak Satya in between Wazir Abad and Sodhra.

9.In June 2006 the Applicant accompanied K on his motorbike to meet with her mother in Nowshear Virkan where they talked for one and a half hour. Afterwards when they were on their way home on Gujranwala Road, a vehicle with several men approached them from behind and fired shots at them which did not hit them but caused their motorbike to crash, but the Applicant and his wife managed to run and hid in a nearby shop until the police arrived and their assailants then left.

10.In December 2007 the Applicant heard that the police from the Gujranwala station had come to Sodhra looking for him over a complaint that he had kidnaped a Muslim girl, and so he moved his family to a friend’s place in Kot Jaffar, but when later he was told by his father that there were people asking for his whereabouts, he became fearful for his life and sought help from a priest who advised that it would be too dangerous for him to remain in Pakistan due to the police charges of abduction and converting the religion of a Muslim to Christianity that not only the police but also the Muslim community would be going after him, and hence he must leave the country to save his life.

11.The Applicant therefore on 6 December 2008 departed Pakistan for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

12.By a Notice of Decision dated 16 April 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

13.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his wife’s family or the police upon his return to Pakistan as low due to the absence of or low intensity and frequency of past ill-treatment from them, that he had lived with his wife for years in Pakistan without being located by her family that it is doubtful that they had any real intention to harm or kill him or the resources to locate him all over Pakistan, that even if the police were looking for him over his abduction of K that it was normal police investigation with no evidence that they would as a result harm or kill him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Pakistan away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for his wife’s family to locate him.

14.On 16 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

15.In response the Applicant on 25 May 2017 submitted additional materials to the Director in support of his claim on all applicable grounds including reports of Christians in Pakistan being persecuted, killed or sentenced to death for marrying a Muslim wife or other acts of blasphemy.

16.By a Notice of Further Decision dated 8 June 2017 the Director again rejected the Applicant’s claim upon finding that the facts of his case either did not engage BOR 2 or that he failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 rights upon his return to Pakistan.   

17.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 28 April 2015, and for which he attended an oral hearing on 9 April 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

18.In its decision the Board found the Applicant sneaking into Hong Kong shows dishonesty and that he was unreliable for coming to such a far-away place in the absence of serious ill-treatment or severe injury or serious harm in Pakistan, that there is no evidence of any personal experience of any ill-treatment of him by the Pakistani police hence no evidence to support his claim of any substantial future risk of harm from the police under any of the applicable grounds, that he would not be classified as a refugee from any proper or legal action which may be brought by the police against him but rather as a fugitive of the law and would not be entitled to non-refoulement protection, that there is no evidence of him having committed blasphemy for which he may be liable to criminal penalty for acting against the Muslim faith, that it did not accept that his wife’s family would after all these years still have any interest or resources in locating him all over Pakistan, and that in any event with state protection as well as reasonable internal relocation for him to move to other part of Pakistan away from his home village without any risk of being located by his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.        

19.On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and upon subsequently being granted legal aid and with legal representation, he put forward the following amended grounds for his intended challenge:

(1) Failure to properly assess the Applicant’s risk arising from Pakistani authorities/police;

(2) Failure to properly consider the relevant COI;

(3) Failure to properly assess the Applicant’s persecution risk;

(4) Erroneous finding on state protection; and

(5) Credibility/reliability findings are irrational and/or procedurally unfair.  

Ground (1) Failure to properly assess the Applicant’s risk arising from Pakistani authorities/police

20.For this complaint it would be relevant to first note in full of what the Adjudicator had stated in the decision [2] as to his findings on the primary basis of the Applicant’s claim as follows:

“ 2.1 The Appellant says he has 2 sources of fear: (1) he fears harm or being killed by family members of his wife K because they regard the marriage as a disgrace, and (2) he fears being arrested by the Pakistani Police because K’s family had filed a report accusing him of abducting K and forcefully converting her from Islam to Christianity, both of which events occurred shortly before the two were married.

2.2 Alleged source of fear “(2)” is not a basis to support a claim for non-refoulement and should be disposed of immediately because, first, there is no personal experience of ill-treatment on the Appellant by the Pakistani Police hence there no evidence to support the thesis of any substantial future risk of serious harm from the Pakistani Police whether under the principles of Torture or BOR3 or BOR2 or Persecution. Secondly, even if he should be convicted, legal sanction is excluded from the definition of Torture under CAT (see below). He says he fears being put in prison if arrested and/or after conviction, but Country of Origin Information (“COI”: see later) shows lack of support for this “fear”. Furthermore, as a fugitive from the law, he is not classified as a “refugee” under refugee law: see UNHCR Handbook (1979) Chapter II at §56. Accordingly, alleged source of fear “(2)” is dismissed, and from now on I shall only focus on alleged source of fear “(1)”.”

21.In assessing the Torture Risk of the Applicant’s claim, the Adjudicator proceeded to state what he termed as the “Legal Element 4 : the State Agent” as follows:

“ 7. The case is about a private matter with no evidence of any hostile act having been instigated or authorized by the Government. The event stated in the middle of paragraph 3.4 above clearly showed absence of “official acquiescence”. And there is no evidence of “passive acquiescence” in this case: MI CACV 69/2014, FAR HCAL 76/2015 §36 to 38.

8. The Appellant has never been arrested, detained or imprisoned in Pakistan, nor had any of his family members or close friends (Non-Refoulement Claim Form at QA 44). He departed Pakistan via proper immigration channels without any problem from the Government (Record of Interview at QA 35). Although these features are not decisive, they at least do not suggest that he was targeted for torture by the Government.

9. The stated facts do not show harm or threat of harm as instigated by anyone qua the capacity of the Government, nor was there harm or threat of harm done or uttered under the colour of state authority. “Element 4” is absent, and there no substantial risk of it existing in future. This aspect alone dismisses the appeal under “Torture Risk”.”

22.The Adjudicator then found that the Applicant was not entitled to protection as a fugitive from the law as he was not a refugee under refugee law upon referring to the UNHCR Handbook (1979) as he stated:

“ 10. There is a further issue, i.e. the Appellant had fled Pakistan to avoid arrest and the due process of the law while being a wanted by the Pakistani Police. Whether he is innocent or guilty is not for this Appeal Board to say, but legal sanction is not “Torture” within “Element 4”.

11. Furthermore, a fugitive is not a “refugee” under refugee law: see UNHCR Handbook (1979) Chapter II at §56. The Appellant is not entitled to be classified as a refugee.

12. Hence even only from the foregoing the appeal under “Torture Risk” must be dismissed.”

23.It is the Applicant’s complaint that from these findings the Adjudicator had wrongly determined that he had no fear of harm from the Pakistani police, i.e. state authorities, and materially erred in finding that he has “no evidence” to support that he has any future risk of harm from the police because he has “no personal experience of ill-treatment” from them, and that even if he is convicted under the Pakistani Penal Code, this would come under the principle of legal sanction and thus exclude him from refugee protection.

24.Ms Denise Souza of counsel assigned by the Legal Aid Department for the Applicant submits that it is well established in authority that there is no requirement to provide evidence of a prior exposure to torture in order to establish a future risk of harm, but that the Adjudicator had repeatedly made this error in his findings, and that he had also unduly limited the scope of the Applicant’s claim to one which did not involve any risk of harm from any state agents by mischaracterized it as concerning a mere “private matter” involving no acts authorized or instigated by the Pakistani government, and rejected his claim on this basis.

25.Ms Souza submits that the Adjudicator wholly failed to assess whether the Applicant would upon return to Pakistan face arrest and prosecution under the blasphemy laws in the Pakistan Penal Code in view of his actions in encouraging and causing his wife to convert to Christianity which may lead to prosecution by the police given that her family had made complaints to the police against him for abduction and/or forced conversion.    

26.Ms Souza further submits that the Adjudicator also erred in his finding that even if the Applicant had a legitimate fear of arrest that he would be “a fugitive from the law” and is therefore “not classified as a “refugee” under refugee law, when a proper examination of the provisions of the UNHCR Handbook cited by the Adjudicator reveals that he had misapplied the principles on lawful sanction and quoted only selectively from it.

27.For establishing a torture risk, McWalters J (as he then was) in AM v Director of Immigration [2014] 1 HKC 416 held that a past exposure to torture or harm is a relevant consideration in assessing torture risk upon return to the home country but not a requirement to establish such risk, as he elaborated in his judgment as follows:

“117. … The question is simply whether there are substantial grounds for believing that if Hong Kong returned the applicant to Pakistan he would be in danger of being subjected to torture? Answering this question will, firstly, require a consideration of the applicant’s claim so that some appreciation can be gained of why the applicant says such a danger exists and from whom that danger would come. If he claims to have been the victim in the past of torture or other forms of harm from the same persons or entities whom he claims will subject him to torture on his return then that will clearly be relevant when answering the question. What weight should be given to this past harm, however, may depend on a whole range of matters such as the gravity of the past harm, how recent it was, whether the authors of the harm are still alive and active and how extensive their ability is to cause harm in the home country.

118. The Adjudicator, after describing the two past incidents of violence in which the applicant had been involved, said:

‘Legal ‘Element 1’: ‘Severe pain and suffering’ as stated in the common law

17. None of the injuries sustained in either Incident 1 or Incident 2 had been serious, as the Petitioner had only required dressing and oral medication, and he needed not even be admitted into hospital. There was nothing which was ‘severe pain and physical or mental suffering reaching the minimum level of severity’ such as assessed and stated in the common law cases: see for example Huri-Laws v Nigeria Afr Comm HPR, Comm 225/1998 (23 October-6 November 2000) at §41.

18. Accordingly, this case consists of no act which establishes ‘Element 1’ in the definition of Torture, hence the Petition also fails because of a reason independent of what was stated in para 15 above. This factor independently dismisses the petition.’

119. The reasoning of the Adjudicator suggests that he was of the view that that there had to be past exposure to torture in order to establish substantial grounds for believing there is a future danger of torture. I would have quashed the Adjudicator’s decision on this ground as well.” 

28.It is the same Adjudicator in the present case who made the same suggestion in the decision that there had to be past exposure to torture by the Applicant in order to establish substantial grounds for believing there is a future danger of torture, and in doing so the Adjudicator also relied on the basis that the facts of the claim were about a private matter which did not satisfy the ‘state agent’ limb of the claim, but without assessing whether the Applicant would upon return to Pakistan face arrest and prosecution under the blasphemy laws in the Pakistan Penal Code notwithstanding the Applicant’s evidence about the complaints made by his wife’s family against him to the police of her abduction and forced conversion of her religion from Islam to Christianity, as clearly stated as the reason for his fear of harm from the police and authorities in his claim to the Director, and also in his notice of appeal to the Board as well as his skeleton submissions ([21(e)], 22/211, HB1) and closing submissions ([6]-[9], 28/248. HB2) made before the Board by his lawyer. 

29.Further, when the Adjudicator relied on the UNHCR Handbook to find that the Applicant had fled Pakistan to avoid arrest and due process of the law while being wanted and hence not entitled to non-refoulement protection as a fugitive rather than a refugee, it seems reasonably arguable that he did not apply the principles on lawful sanction properly, and had quoted selectively from the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), reissued in February 2019 which explain the distinctions between fear of punishment from a common law offence and fear of persecution in relation to entitlement to protection as a refugee as follows:

“ 56. Persecution must be distinguished from punishment from a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of justice, not a fugitive from justice.

57. The above distinction may, however, occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.

58. Secondly, there may be cases in which a person, besides fearing a prosecution or punishment for a common law crime, may also have “well founded fear of persecution”. In such cases the person concerned is a refugee. It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.

59. In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.”

30.Furthermore, it is clearly the Applicant’s case that blasphemy laws in Pakistan are considered to be a breach of the fundamental right to freedom of religion and applied in a discriminatory manner, as reported by Freedom House in “Policing Belief: The Impact of Blasphemy Laws on Human Rights” at page 73:

“Pakistan’s blasphemy laws are incompatible with international human rights standards not only because they impose undue restrictions on freedom of expression, freedom of religion, and other human rights, but also because they are discriminatory in their effect. Moreover, they lack the necessary safeguards against abuse, providing no clear definition of what constitutes blasphemy, weak evidentiary standards for convictions in lower courts, and no mens rea (criminal intent) requirement. This makes it possible for the laws to be exploited to persecute minorities or exact revenge in personal disputes. The blasphemy laws have also been invoked to instigate and justify sectarian or communal conflict, with allegations of blasphemy often serving as the trigger for mob violence that has in some cases been implicitly, if not explicitly, condoned by police and government officials.”

31.The International Commission of Jurists also expressed similar views in its report on “On Trial: The Implementation of Pakistan’s Blasphemy Laws (November 2015) at page 5:

“Since their promulgation, these oppressive and frequently misused blasphemy laws have been denounced by Pakistani civil society activists and human rights groups; academics and members of the judiciary and government. Concerns about these laws have also been raised during the review by UN Member States of Pakistan’s human rights mechanisms and international human rights organizations, who have all observed that Pakistan’s offences against religion violate its obligations under international human rights law and have urged that Pakistan repeal or radically amend them.

The UN Special Rapporteur on the independence of Judges and Lawyers, for example, following a mission to Pakistan in 2012, found that

These laws serve the vested interests of extremist religious groups and are not only contrary to the Constitution of Pakistan, but also to international human rights norms, in particular those relating to non-discrimination and freedom of expression and opinion.

…

The International Commission of Jurists (ICJ) opposes the criminalization of the exercise of the rights to freedom of expression and religion or belief in Pakistan in the shape of the blasphemy laws and considers them a flagrant violation of Pakistan’s international human rights obligations, including its obligations to respect the rights to freedom of thought, conscience and religion; freedom of expression; and the right to equal treatment before the law. Furthermore, the retention of the mandatory death sentence as a penalty upon conviction for a crime, including under 295-C of the Penal Code, violates Pakistan’s obligations under the International Covenant on Civil and Political Rights (ICCPR), including to respect the rights to life, to a fair trial, and to prohibit torture and other cruel, inhuman or degrading treatment or punishment.”         

32.In the decision the Adjudicator did not appear to have made any such assessments of the Applicant’s potential arrest and prosecution under the blasphemy laws in the circumstances of his case at all.

33.In the premises I agree it is reasonably arguable that the Adjudicator had erred in law under this ground which satisfies the threshold for leave to be granted for judicial review.

Ground (2) Failure to properly consider the relevant COI

34.Here the Applicant’s complaint is that the Adjudicator did not adequately assess his risk with appropriate regard to the COI before the Board, of which the Adjudicator wholly failed to identify and assess his risk arising from his relationship with K and his having caused her conversion from Islam to Christianity, and thus the risk of severe harm or death from her family, and/or from the Muslim community at large, and in particularly from extremist Muslims who would consider his actions to be apostasy punishable by death, and/or arrest, detention, prosecution and/or death by the police or authorities for those actions against blasphemy laws under the Pakistan Penal Code.

35.Ms Souza submits that there are ample reports as well as specific guidance on risks to Christians and Christians converts in Pakistan which were placed before the Board, but which the Adjudicator failed to properly consider or to take into account when assessing the Applicant’s risk.     

36.Ms Souza further submits that the situation has since deteriorated for Christian converts in relation to accusations of apostasy resulting in blasphemy charges and the extreme hostility faced by society and Islamists, but that the Adjudicator conducted a wholly inadequate assessment and failed to entirely engage the relevant risk profiles of the Applicant’s case, and that the conclusions that he drew from the purported assessment is irrational, or at least fall far below the standards required of any rational assessment of COI and are Wednesbury unreasonable and/or amount to a failure to give adequate reasons.

37.In the decision the Adjudicator’s assessment of such risk to the Applicant is given in [22]:

“Duty Lawyer in her pre-hearing submissions cited criminal penalty for blasphemy against the Muslim faith, but there is no evidence of the Appellant himself having committed blasphemy. I do not accept that S of more than 11 years ago is interested in locating the Appellant all over Pakistan, and that is even if S should have huge resources and manpower, as well as is willing to expend same to look for a needle in a haystack, especially when the Appellant has lived in Pakistan as a Christian for many years without having encountered any serious ill-treatment or severe injury or serious harm to theorise that he will have any substantial future risk of serious harm. I find no substantial risk or any substantial basis of fear. There are many places in Pakistan, at least other than the Appellant’s home village of Tarowal and district Sheikhupura, where as a 37-year old and able-bodied young man with work experience he can safely live without undue hardship, which is another independent reason for the appeal to fail.”

38.It has been well established that in assessing the potential risk of a claimant’s claim, high standards of fairness require that all relevant matters be considered including the conditions in the country concerned, and that an understanding of country conditions at the time of the alleged risk in the past as well as at the present time is usually relevant to the assessment of the claim: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [52] and [55].

39.While an examination of those COI cited in the preceding paragraph [20] of the decision shows that the Adjudicator did refer to blasphemy laws in Pakistan, but it seems that he did so only selectively and/or fail to consider those COI supplied and relied on by the Applicant, and given the complaint under Ground (1) above against his failure to properly identify the Applicant’s risk of prosecution under blasphemy laws, I agree it is reasonably arguable that the Adjudicator also failed to properly and/or sufficiently consider all the relevant COI in his assessment of such risk.      

Ground (3) Failure to properly assess Persecution Risk

40.In his assessment of the Applicant’s Persecution Risk, the Adjudicator stated in paragraph 33:

“ … The Appellant has not suffered serious ill-treatment or severe injury or serious harm which points to any substantial future risk. Furthermore the COI shows reasonable availability of State protection from such harm. In addition S, even including his half a dozen offsiders, do not come within the meaning of ‘populace’ in refugee law. Hence the situation falls far short of establishing ‘Persecution Risk’.”

41.The Applicant complains that the Adjudicator had erred, similarly as in Ground (1) above, in imposing a requirement of the need for previous experience of ill-treatment to establish a future risk of harm, and that the Adjudicator committed a further error in dismissing his claim on a risk of persecution outright in finding that his situation “falls far short” of establishing a risk of harm under this limb.  

42.Ms Souza submits that the facts and evidence presented by the Applicant required a proper assessment on the basis of religious persecution, in particularly the facts that he was a Christian and was accused of having abducted and forcibly converted his wife to Christianity which would render him liable to arrest and prosecution under the blasphemy religious offences of the Pakistan Penal Code which carry severe penal consequences including life imprisonment and death penalty and which are in and of itself persecutory, as well as risk of harm arising from other members of his wife’s family and the larger Muslim community in Pakistan as evidenced by those COI placed before the Board demonstrative of threats, attacks and murders to similarly-situated persons but which the Adjudicator failed to take into account or to assess the Applicant’s claim on any of such risk profiles or at all when he instead simply brushed aside such risk as above.

43.The UNHCR Handbook provides the following guidelines on persecution risk:

“ 51. There is no universally accepted definition of ‘persecution’, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violation of human rights – for the same reasons – would also constitute persecution.

52. Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.

53. In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.”

44.The guidelines also refer specifically to various forms of persecution for reasons of religion as follows:

“ 71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.” 

45.It is clear from the decision that the Adjudicator had accepted that the Applicant was a Christian, but given the accusations made against him to the police as noted above, and given the COI available before the Board of similar and deteriorating situations in Pakistan, I agree for the reasons given that it is reasonably arguable that the Adjudicator had erred in his assessment of the Applicant’s Persecution Risk on any of his risk profiles.

Ground (4) Erroneous finding on State Protection

46.The Applicant complains that the Adjudicator’s finding on state protection available in his case was made without proper inquiry into whether the Applicant would in his circumstances be able to access effectively, including his potential arrest and prosecution under blasphemy laws upon return to Pakistan which would render him under persecution or serious harm from the state and therefore unable to avail himself of state protection, and hence such finding on state protection by the Adjudicator is wrong in fact and in law.

47.In his assessment of COI as to the availability of state protection in Pakistan, the Adjudicator referred to the UK Home Office Report on Pakistan, 1 January 2018, and stated at page 9 of the Board’s decision:

“In § 2.2.7 the report says “The reported case of AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC) (26 January 2011), heard on 11 November 2010, found that there is ‘systemic sufficiency of state protection’ in Pakistan. 2.2.8 The country evidence available since AW was heard indicates that in general access to effective state protection remains possible. However each case must be considered on its facts. The onus is on the person to demonstrate that they would not be able to seek and obtain effective state protection.”

48.The Adjudicator then went on to find for each of the applicable grounds in the Applicant’s case that COI shows “reasonable availability of state protection from such harm” that inter alia his claim failed on each of those grounds.

49.The Adjudicator did not however appear to have make proper inquiry into whether the Applicant would, in the particular circumstances of his case of being accused of forcibly converting his wife’s religion from Islam to Christianity, still be able to access effective state protection, or for that matter as to the availability of internal relocation, of which the said UK Home Office Report provides the following guidelines for Christian converts:

“2.5 Protection: Christian Converts

2.5.1 People who are known to have converted to Christianity suffer serious societal discrimination and acts of violence, as well as discrimination by the authorities.

2.5.2 As such, Christian converts would not generally be able to seek and obtain effective protection from the state against acts perpetrated against them by non-state actors.”

…

2.7 Internal Relocation: Christian converts

2.7.1 Where a person’s fear is of ill-treatment/persecution at the hands of the state or non-state actors on the basis that they are a Christian convert, they will not be able to relocate to escape that risk.

2.7.2 Given that ill-treatment towards Christian converts is prevalent throughout Pakistan, internal relocation to escape such treatment is unlikely to be a viable option, particularly where the person is known to have converted to Christianity.”

50.In considering whether internal relocation alternative is available in any particular case, Lord Bingham described the analogous task of the decision-maker in the following terms in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 21:

“ … The UNHCR Guidelines of July 2003 similarly observe, at para 7I(b):

“National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available.”

There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. The decision-maker, taking account of all  relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant’s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.”

51.Given the Applicant’s complaint of the Adjudicator’s failure to properly and/or correctly identify his risk arising from the Pakistani authorities/police under the blasphemy laws as noted above, it seems to me reasonably arguable that the Adjudicator’s findings on state protection and internal relocation as noted above were made without proper inquiry into whether the Applicant would in his circumstances be able to access effectively either of them, and that it is reasonably arguable that such findings are wrong in fact and in law.

Ground (5) Credibility/Reliability findings against the Applicant are irrational and/or procedurally unfair     

52.In the decision under the heading of “Credibility/Reliability”, the Adjudicator made the following findings against the Applicant:

“ 35. The Appellant sneaked into Hong Kong in a small boat, without first clearing Chinese immigration, in the darkness of night, the boat having no navigation lights, and with the coxswain gesturing to him (and other passengers) to bend down, which show dishonesty: Section 37ZD(3) of the Immigration Ordinance Cap 115.

36. After studying the case I find the Appellant unreliable. Why he left Pakistan, why he chose Hong Kong, why in the absence of serious ill-treatment or severe injury or serious harm when an obvious and a cheaper method to avoid S was to simply move elsewhere in Pakistan, yet he would travel 4700 km to such a far-away place as Hong Kong, and for what real purpose he chose to sneak into Hong Kong illegally, the answers to all these matters he himself would naturally know, but as the burden of proof is on a claimant, he who is unreliable fails to establish his claim.”

53.The Applicant complains that the Adjudicator dismissed his claim on the basis of these findings on his credibility and reliability are (i) irrational/Wednesbury unreasonable in that no reasonable decision-maker could come to such a finding on the facts, and (ii) procedurally unfair, in that none of the issues raised by the Adjudicator or the potential adverse findings made against him were put to him at the oral hearing which the Adjudicator wrongly insisted on being abbreviated.   

54.Ms Souza submits that the Adjudicator’s analysis on credibility/reliability falls squarely within the definition of unreasonableness as to his finding that an applicant must necessarily be considered incredible, and have the entirety of his factual accounts dismissed simply because he entered illegally, is a decision that no sensible decision-maker could reach, and one which displays wild prejudice or excessive lack of common sense.

55.While there is no question that the burden of proof rests on a claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to the claimed risk, this is subject to the requirement of high standards of fairness being observed by the decision-maker in the screening process, as held the Court of Final Appeal in Prabakar [51], and which also made the following authoritative observations of what high standards of fairness are required of the decision-maker:

“ 53 … First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the Refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned…

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognised by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”

56.In the UNHCR’s Guidelines “Beyond Proof: Credibility Assessment in EU Asylum Systems”, May 2013, it is provided that as part of the process of establishing the facts, applicants should be given a reasonable opportunity to address any issues that may result in adverse credibility findings by the decision-maker, as it elaborated under paragraph 2.6:

“As part of the process of establishing the facts, Member States should give applicants a reasonable …

This obligation to provide an opportunity to the applicant to comment on matters that may be the source of potentially adverse credibility findings flows from Article 4(1) QD, which provides that “(i)n cooperation with the applicant, it is the duty of the Member State to assess the relevant elements of the application.” Article 4(1) QD imposes a duty on the Member State to cooperate with the applicant in establishing the relevant facts and circumstances. The notion of cooperation implies “that the two parties will work together towards a common goal.” This entails far-reaching obligations to communicate for both the Member State and the applicant. The common goal is to have, as far as possible, a solid basis on which to assess the credibility of the asserted facts.

…

This is of particular relevance in national procedures to determine qualification for international protection:

“Indeed, in this type of procedure [for examining an application for international protection], which inherently entails difficult personal and practical circumstances and in which the essential rights of the person concerned must clearly be protected, the observance of this procedural safeguard is of cardinal importance. Not only does the person concerned play an absolutely central role because he initiates the procedure and is the only person able to explain, in concrete terms, what has happened to him and the background against which it has taken place, but also the decision will be of crucial importance to him.”

This standard is also reflected in national jurisprudence and guidance both within the EU and beyond. For example, Canadian guidelines state that it would be a breach of natural justice to base a negative determination on an adverse finding of credibility, if the claimant were denied the opportunity to know and address the case against him or her.

In the adjudication of claims for international protection, ensuring that an applicant has the right to comment on potential credibility problems in the claim requires that he or she be advised in clear terms of problems or issues and have the opportunity to refute, explain, or provide mitigating circumstances in respect of any evidence that appears inaccurate, contradictory, vague, implausible, or inconsistent with other evidence (for example expert evidence, evidence of other family members, and specific or general COI). It would also include the opportunity to address any concerns on the part of the determining authority regarding a lack of relevant elements, and/or concerns that any documentary or other evidence submitted by the applicant is not authentic or reliable. It may also require the determining authority to give the applicant the opportunity to bring further evidence, if appropriate or necessary.”  

57.In the Board’s decision the Adjudicator recorded at [4] that a hearing was held during which the Applicant gave evidence and answered questions, and upon careful examination of the transcript of that hearing (Item 33, BD 2), it appears to me that the Adjudicator never raised any of those matters with the Applicant or his lawyer during the hearing or anytime thereafter which he considered as the source or basis of his subsequent adverse credibility finding against the Applicant in his decision.  

58.As such and in the circumstances, I agree this ground is also reasonably arguable for the Applicant’s intended challenge of the Board’s decision.

Conclusion

59.In the premises, and for the reasons given, and being satisfied that his proposed grounds have met the threshold laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on those grounds stated above, and in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A direct that he shall file and issue an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

60.I also order that the Applicant’s costs be in the cause of his application, with his own costs to be taxed on Legal Aid Regulations.   

Dated the 2^nd day of February 2021.

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