A v. Torture Claims Appeal Board

HCAL 109/2016

[2021] HKCFI 2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 109 of 2016

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 granted;

2.  costs be in the cause; 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 37-year-old national of Iraq who was deported from Singapore to Hong Kong on 5 May 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Iraq he would be harmed or killed by his uncle who blamed him for the accidental death of his uncle’s son and/or by a former member of the Islamic Army in Iraq (“IAI”) who had extorted money from his family and/or by the Iraqi Security Force (“ISF”) for having been involved with the US Army and IAI in the past. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mosul, Iraq as a Sunni Muslim. After leaving school he assisted in his father’s window frames business, and also worked as a part-time taxi driver in his home district.

3.In 2007 his father and uncles carried out some window framing work for the American Army stationing in Iraq after their invasion in 2003 which they had kept a secret from the local community for fear of reprisal for assisting the enemy.

4.However, later in the same year a man by the name of Abu Marwah (“Marwah”) who used to be a member of IAI, one of the Islamist militant groups formed after the US invasion in 2003, and threatened the Applicant’s father and uncles that he would exposed their secret to the local community unless they paid him money, and when they refused their shop was burnt down, and after the police failed to help, his father and uncle eventually paid the money which Marwah demanded, but the Applicant remained in fear that Marwah may blackmail them again or that the local community may discover his father’s secret and would come to harm him and his family.

5.One day in February 2008 while the Applicant was driving his father’s car together with his cousin Omar on the way to the Al-Yarmuk District, they ran into a column of US army trucks when a roadside bomb exploded and the US soldiers started firing their guns at everyone which hit and killed Omar, and after they stopped shooting, they grabbed the Applicant and searched his car, and when they found a gun which his father had kept in the car for self-defense, they started hitting and kicking the Applicant until he lost consciousness.

6.Upon his discharge from the hospital for the injuries he received from the US soldiers, the Applicant was taken to the US military base in Jawsaq District where he was interrogated about the gun found in his father’s vehicle and was detained there for 7 months as the American soldiers were not satisfied with his explanation that he knew nothing about the gun as it was his father’s car, and eventually the Applicant told them about Marwah being a IAI member extorting money from his family that he was finally released and returned home.

7.However, after learning from him about how Omar was killed, his uncle blamed the Applicant for his son’s death, and one day his uncle fired a shot at him with his gun but missed him, and since then he became fearful of any further revenge attack on his life by his uncle.

8.One evening on 23 April 2009 while the Applicant was visiting some friends in their house, a fire fight broke out between IAI and ISF in their neighbourhood, and suddenly some ISF members broke in and searched their place, and when they found a gun in one of the bedrooms, they accused the Applicant and his friends of being terrorists and took them to their camp base at Al-Kendy where they were detained, interrogated and tortured for almost four months, during which the Applicant was beaten so severely that he had to be brought to a hospital for medical treatments.

9.Eventually the Applicant was released by ISF and returned home where he learned that the ISF agents had also come to search his home during his detention and interrogated his father and brothers.

10.One day in late 2009 the Applicant ran into his uncle in their home district who still blamed him for his son’s death, and tried to hit him with his car but the Applicant managed to escape without harm, but as he was fearful of his uncle’s revenge as well as the ISF, he therefore departed Iraq on 19 April 2010 for Turkey where he overstayed and was repatriated to Iraq on 8 May 2010.

11.A few days later the Applicant left for Syria and in transit to Turkey, and on 27 May 2010 he arrived in Cyprus where he made a refugee application to the European Union, during which he stayed in a refugee camp near Nicosia and relied on the local welfare assistance while his application was being processed, but when Cyprus later stopped the welfare assistance for asylum seekers in 2012, the Applicant departed on 11 December 2012 and returned to Iraq.

12.One week later on 18 December 2012, the Applicant left Iraq again for Malaysia where he found a job working in a restaurant, but one day in March 2013 he was robbed by some gang members in the Taman Milati District including his Iraqi passport, and when he tried to apply for a replacement at the Iraqi embassy, he was only given some travel document and was told that he needed to return to Iraq to apply for a formal replacement of his passport, but as he was afraid to return to Iraq, he therefore sought some local help and obtained a fake Egyptian passport with which he then travelled to Indonesia on 9 December 2013, and from there he took his first trip to Hong Kong as a visitor.

13.On 20 December 2013 he departed Hong Kong for South Korea where he applied for asylum based on his fake Egyptian passport, but during his screening process before the South Korean immigration department, he became worried about the serious legal consequences of being charged for using the fake passport, he therefore abandoned his application, and before leaving South Korea, he obtained a soft copy of the bio-data of his Iraqi passport from his friend in Cyprus, and left for Hong Kong on 24 April 2014.

14.The Applicant stayed in Hong Kong as a visitor for 8 days before departing on 3 May 2014 for Singapore where he threw away his fake Egyptian passport at the airport and used the copied bio-data of his Iraqi passport to apply for asylum to the Singaporean immigration department, but his application was refused and on 5 May 2014 he was deported back to Hong Kong, and when he was refused entry by the Immigration Department, he then produced the copied bio-data of his Iraqi passport for his identity and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

15.By a Notice of Decision dated 4 December 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then 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”).

16.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 perceived enemies upon his return to Iraq as low due to doubt over the credibility of his claim and in particularly his failure to establish his claimed Iraqi identity or to produce acceptable documentary evidence in support of such claim, that there is no reliable evidence of any official acquiescence of his claimed ill-treatment by ISF, that in the absence of any official involvement in his claimed risk of harm from Marwah or his uncle that state or police protection would be available to him if resorted to upon his return to Iraq, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Iraq with a large population 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 Iraq away from his home district in region such as Erbil where it would be difficult if not impossible for his perceived enemies to locate him.

17.On 15 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 February 2015 before the Board with legal representation from DLS during which he gave oral evidence and answered questions put to him by the Adjudicator for the Board and with submissions made by his lawyer for his appeal. On 9 March 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

18.In its decision the Board found the Applicant’s failure or inability to establish his claimed identity as a national of Iraq from Mosul despite ample opportunity to do so as a striking feature of his case that it was not persuaded that his identity and home city were as he claimed them to be, that his assertions that his father and uncles of being extorted by Marwah and his fear of harm from him whom he had never met is far-fetched and unconvincing largely based on hearsay, while his assertion of fear of revenge from his uncle for the death of Omar if true arose from the personal emotional feelings of his uncle and did not advance his case, and as for his claim of fear of harm from the ISF, giving its findings in relation to the general credibility of the Applicant, the Board was not persuaded that he had been detained in the circumstances he described or that he had been ill-treated by the ISF as he asserted, or that he had established that he would face any risk of ill-treatment by the ISF or any other harm that he had claimed if refouled to Iraq that his claim for non-refoulement protection failed on all applicable grounds.  

19.On 14 June 2016 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but before his application could be heard, the Director on 10 January 2017 invited him to submit additional facts which may be 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”), and his leave application was allowed by Deputy High Court Judge Kent Yee to be adjourned pending the Director’s decision on his BOR 2 claim.

20.Upon receiving additional grounds and information provided by the Applicant through his lawyer from DLS, the Director by a Notice of Further Decision dated 5 February 2018 also rejected the Applicant’s claim under BOR 2 risk.

21.On 15 February 2018 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which he again attended an oral hearing on 24 October 2018 before the Board with his lawyer from DLS during which he gave further oral and documentary evidence as proof of his claimed identity as a national of Iraq and answered further questions put to him by the same Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 3 July 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

22.In this decision the Board upon considering the additional evidence from the Applicant accepted that he is an Iraqi and a Sunni Muslim from Mosul as claimed but found no reason to alter its previous findings of fact in relation to his past experience in Iraq or to reconsider his USM grounds other than BOR 2 Risk, and that since he had never been involved in politics in Iraq and that there is no evidence to support his claimed fear of being arbitrarily killed by Marwah or the ISF or of being deprived of his life in contravention of BOR 2 or of any additional risk of harm due to his religious faith as a Sunni Muslim if refouled to Iraq that his claim for non-refoulemnent protection also failed under the BOR 2 ground.     

23.On 14 January 2021 the Applicant was granted leave to re-re-amend his Form 86 to include leave to apply for judicial review of this Second Decision of the Board as well, and accordingly with additional grounds for his intended challenge of both decisions, starting with those against the First Decision as follows:

(1)  That the Board erred in rejecting the Applicant’s identity claim and credibility;

(2)  That the Board failed to properly assess the Applicant’s fear of serious harm if refouled to Iraq;

(3)  That the Board failed to properly assess the torture and persecution risks due to the behavior of the ISF; and

(4)  That the Board failed to properly investigate all the relevant COI in assessing the future risks to the Applicant.  

24.As for his challenge of the Board’s Second Decision, the Applicant’s proposed grounds are:

(1)  That the Board erred in not considering Article 5 (Liberty and Security of the Person) or Article 10 (Right to fair Trial) in relation to the Applicant’s claim under BOR 2 Risk;

(2)  That the board’s refusal to alter its previous findings of fact in relation to the Applicant’s claimed past experience in Iraq is unfair and unreasonable;

(3)  That the Board failed to give reasons or proper reasons for dismissing the Applicant’s claim of fear of personal risk of harm;

(4)  That the Board’s finding that the Applicant would be in a position to obtain a new Iraqi passport and with the assistance of his family to be able to apply for a Civil Status Identity Document was without basis and contrary to the evidence of the COI reports available to the Board; and

(5)  That the Board failed to consider key COI materials in finding that the Applicant would not be at risk as a Sunni Muslim or that having considered the materials that its finding was perverse and untenable.

25.From these complaints of the Applicant, it seems obvious to me that the first question to ask is this: Given the findings of the Board in the First Decision that it was not persuaded that the Applicant is a national of Iraq and a Sunni Muslim from Mosul as he claimed, and hence he failed to establish that he had suffered serious ill-treatments in the past in Iraq as claimed or any real chance that he would suffer such serious harm in the future ( [96] of First Decision), but in the Second Decision upon hearing and seeing further evidence from the Applicant, the Board accepted that he is indeed who he claimed to be, a national of Iraq and a Sunni Muslim from Mosul, should the Board not have proceeded to re-consider the Applicant’s claim on all the other applicable USM grounds in addition to BOR 2 Risk given its previous adverse findings on credibility were due to his failure to prove his identity?    

26.To answer this question, which would in my view be relevant to the consideration of all the Applicant’s proposed grounds against the Board’s First Decision as well as his Ground (2) against the Second Decision, I propose to consider them together as follows.

Grounds (1) – (4) against First Decision & Ground (2) against Second Decision: Credibility

27.In the First Decision, the Board started with the assessment of the Applicant’s identity and credibility by highlighting his failure to produce any reliable proof of his claimed identity as a striking feature as follows:

“46. A striking feature of the Claimant’s case is that he has failed to produce any proof of his own claimed identity despite having been given ample opportunity to do so. It is noted that, even after having contacted his family while he was detained in Hong Kong, the Claimant was unable to produce any official document issued in Iraq to establish his claimed identity…”

28.The Board proceeded to find it unable to attach any weight to the various documents produced by the Applicant in support of his claimed identity as their authenticity was questionable, and that it was not persuaded that his identity and home city were as he claims them to be:

“58. Whilst I am mindful that a person who has fled his country of origin in an emergency may be unable to produce a passport or other official proof of identity, the Claimant’s failure to produce any evidence (my italics) of his claimed true identity greatly damages the general credibility of the claimant.

59.  On the totality of the evidence, I am not persuaded, even to the low standard applicable, that the Claimant’s identity and home city are as he claims them to be. At best, the Claimant can only establish that he is an Arabic speaker seeking non-refoulement protection in Hong Kong.”   

29.The Board also referred to the Applicant’s previous applications for refugee status in Cyprus and South Korea before making his first entry to Hong Kong in December 2013, and found his reasons for not raising his non-refoulement claim in Hong Kong on that occasion contradictory, and that his failure to apply for protection at the earliest opportunity further damaged his general credibility (see [60] – [65]).

30.It was on those bases that the Board proceeded to consider the Applicant’s claim under the Unified Screening Mechanism (“USM”) in respect of each of his claimed fear of harm, starting with that from Marwah:

“70.  The Claimant’s evidence in relation to the claimed extortion by Marwah from the Claimant’s father and uncles is based largely on hearsay. On the Claimant’s own evidence, he never saw or met Marwah in person but says that he heard Marwah’s voice during 2 telephone calls. All other assertions by the Claimant relating to Marwah are based on hearsay. The Claimant’s assertion that Marwah belongs to the “Islamic Army” which now controls the city of Mosul is based solely on speculation which is unsupported by any other credible evidence.

71.  His assertion that his father and uncles handed over US$30,000 to Marwah whom they had never met or seen, is far-fetched and unconvincing even in the chaotic situation which existed in Iraq at the relevant time. On the totality of the evidence, I am not persuaded, even to the low standard applicable, that Marwah, or any other person, made any demand for money from the Claimant’s family as the Claimant asserts, or at all, and I am not persuaded that the Claimant’s family did, in fact, hand over any money to Marwah or any other person.”

31.As for the threats from ISF, which is in essence the core of the Applicant’s claim, the Board’s assessment is as follows:

“76.  According to the Claimant, he was detained for about 4 months by the ISF and was, on several occasions, interrogated and assaulted. He says that he believed that the ISF had beaten him “not only for the purpose of interrogation but to express animosity against us being Sunnis since most of the Iraqi Force members are Shias.” [HB 191, paragraph 36].

77.  He says that, about 1 month before he was released, he was told by those detaining him that they had found no evidence against him. He says that “The Iraqi Force soldiers told us that they were still looking for evidence against us and they would arrest us any time later”. [HB 193, paragraph 42] 

78.  Whilst the situation in Iraq was, in general, chaotic during the period referred to by the Claimant, given my findings in relation to the general credibility of the Claimant, I am not persuaded, even to the low standard applicable, that he was detained in the circumstances he describes or for the period he claims, or that he was ill-treated by the ISF as he asserts, or for the reasons claimed, or at all.” 

32.After also finding that the Applicant’s claimed risk of harm from his uncle was essentially a personal family dispute which would be negated by state/police protection, the Board arrived at the following conclusion regarding the issue of future risk to the Applicant:

“88. The Claimant fears that he will be framed with a false accusation by the ISF and that he would not receive reasonable state protection because he is a Sunni Muslim.

89. Even if it is assumed, for the sake of argument, that the Claimant is a Sunni Iraqi citizen (which he has failed to establish) most of the Claimant’s evidence regarding future risk is based on hearsay and speculation which is not supported by any other credible evidence.

90. The Claimant also says “There is now an army called Al-Mahdi, which is a Shia army that hunt down Sunnis. They have a price list of hunting down individuals of Sunnis”. {HB 147, paragraph 69}

91. On the basis of my findings regarding the general credibility of the Claimant, I am not persuaded that the Claimant has established, even to the low standard applicable, that he would face any risk of ill-treatment by the ISF or that he might have false charges laid against him by the ISF.

92. For the same reasons, he has failed to establish that he would face any risk of harm at the hands of an “army called Al-Mahdi” as he claims, and he has also failed to establish that he would not receive adequate protection from the Iraqi authorities because the authorities are controlled by Shias.

93. For the reasons stated, and taking the evidence as a whole, the Claimant has failed to establish, even to the low standard required, that he is a Sunni Iraqi citizen. Consequently, he has failed to establish that there is a real chance that he would face a risk of serious harm in the future, even if he is refouled to Iraq.” 

33.Of these findings the Applicant complains that the Board has erred in rejecting his identity claim and thereby undermining his credibility in that:

(a)  It applied an unfairly high standard in categorically rejecting the identity document provided by the Applicant for being blurred, dark and only a photocopy without considering whether in his circumstances as a torture claimant fleeing from his home country that it may have been all that he could possibly obtain; 

(b)  That it failed to discharge its duty in the “joint endeavor” to verify the applicant’s identity, as high standards of fairness require that the Board ought to have taken reasonable steps to procure a clearer copy of the Applicant’s passport which the Applicant had produced to the Singaporean authorities before he was deported to Hong Kong if the Board considered that documentary proof was indispensable to the Applicant’s identity claim, and without conducting further investigation into the matter, the Board simply made a finding against the Applicant based on allegedly blurred photocopy of his passport;

(c)  That the Board failed to consider the fact that the Applicant was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and hence unable to obtain clearer or better copy of the bio-date of his passport or to seek help from his friend in Cyprus to do so; and

(d)  That the Board placed undue emphasis on documentary proof and wrongly ignored other factors supporting the Applicant’s identity claim and failed to take into consideration or make proper finding as to the detailed information provided by the Applicant as to his family background and information regarding his home district in Mosul or of Iraq.     

34.Ms Margaret Ng, assigned by the Director of Legal Aid to act for the Applicant, submits that the Board’s finding that it was not persuaded of the Applicant’s claimed identity was Wednesbury unreasonable in that:

(a)  It failed to consider the fact that on 13 May 2014 the Applicant asked to be returned to Iraq as he thought that his mother was terminally ill which would not make sense if he were not a national of Iraq as doubted by the Board; and

(b)  It did not find that the Applicant had fabricated his identity or that he was in fact a national of another country yet at the same time he would be sent back to Iraq if his claim failed.    

35.Ms Ng also submits that the Board had erred in finding that the Applicant failed to establish any future risk of ill-treatment by the ISF upon his return to Iraq in that:

(a)  The Board did not carry out any COI inquiry in assessing the likelihood that the Applicant was ill-treated by the ISF and dismissed the ISF risk essentially based on its doubt as to the general credibility of the Applicant;

(b)  That the Board’s dismissal of the ISF incident on the ground that it was no more than hearsay and speculation is contrary to high standards of fairness demanded in assessing non-refoulement claim; and

(c)  That the Board in finding that the ISF incident did not occur when it failed to consider the existence of any physical evidence of past torture or ill-treatment such as the scar on his forehead and other materials previously provided to the Director.     

36.Ms Ng further submits that the Board erred in failing to investigate properly or at all the relevant COI in assessing future risk to the Applicant, as it did not refer to any COI materials on such vital issue of assessing future risk, not did it make any reference to any COI materials that the Applicant failed to establish the claim that he would not receive adequate protection from the Iraqi authorities as they were controlled by the Shias.     

37.Of this last submission regarding the Board’s failure to properly assess or investigate the Applicant’s claim that he would not receive protection from the Iraqi authorities because they are controlled by the Shias, it is relevant to first note that such concern was in fact supported by those COI referred to by the Director in paragraph 18 of his first decision as follows:

“ ... You claimed that you did not think the authorities in Iraq could protect you if you returned because the ISF had abused you during detention and the police in Iraq could not even protect themselves. Your said assertion has been considered in the COI:

(a) There is information which corroborate your said assertion:

(i) The US Department of State (“USSD”) stated in its “Iraq 2013 Human Rights Report” [Section 1d of Item 1 of Appendix] Iraq were carried out without a legal warrant.”

(ii) The 2013 UK Boarder Agency (“UKBA”) Report [paragraph 9.08 of Item 2 of Appendix] cites the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers From Iraq dated 31 may 2012 that protection by national authorities, against non-state actors, was unlikely to be available in most cases given their limited capacity to enforce law and order. The source cited the ISF’s vulnerability to corruption, infiltration by militants, political disunity and the fact that the security forces were themselves a main target of insurgent attacks, as limiting factors to the effectiveness of the ISF.

(iii) You claimed that you had been ill-treated by the ISF during the detention period. According to the 2013 USSD Report, it stated that “As in previous years, credible accounts of abuse and torture during arrest and investigation, in pretrial detention, and after conviction, particularly by police and army, were common. According to former prisoners, detainees, and human rights groups, methods of torture and abuse included putting victims in stress positions, beatings, broken fingers, suffocation, burning, removing fingernails, suspended victims from the ceiling, overextending victims’ spines, beatings on the soles of the feet with plastic and metal rods, forcing victims to drink large quantities of water while preventing urination, sexual assault, denial of medical treatment, and death threats. There were also reports during the year of detainees dying of “electric shock” torture while under interrogation, and local human rights organizations posted unconfirmed videos of electric shock torture in detention centers in Muthanna Province.” (Section 1c of Item 1 of Appendix)”

38.In BA v The Secretary of State for the Home Department [2017] UKUT 00018 (IAC), in which the UK Upper Tribunal also referred to reports of common view among Iraqi Sunnis that the authorities were unable or unwilling to help them because police officers are largely Shia: 

“103. The most recent US State Department report stated that civilian authorities did not always maintain effective control of the security forces, regular armed forces and domestic law enforcement bodies including the PMF. Information about abuses by government officials and members of the security forces was not publicly available. Impunity effectively existed for government officials and security forces personnel. In many cases the Shia PMF operated independently and without oversight or direction form the government. Security forces made limited efforts to prevent or respond to societal violence. The government did not effectively implement civil or administrative remedies for human rights violations.

104. The FIS report stated that it was a commonly held view among Sunnis that the authorities are unable or willing to help them because police officers are largely Shia. Police are unable to protect citizens against violent attacks. It is increasingly difficult for the police to perform their duties in densely populated areas such as Baghdad. The police are the most corrupted part of the Iraqi security force. The report goes on to say that, given the links between Shia militias and the authorities, it is understandable that people, especially Sunnis, are unwilling to report a crime committed by the militias. In some areas of Baghdad people have reported threats, assaults and kidnappings to the police but in most cases the police said that they were unable to help. One of the contributing factors is excessive workload and lack of resources, which prevent the police from investigating crimes.

105. The respondent did not seek to argue that the authorities in Baghdad are able to provide sufficient protection. The CIG guidance on Sunni Arab Muslims states the respondent’s policy position in relation to Sunnis. In general, if a Sunni is at real risk of serious harm from eth state and/or Shia militias, they will be unable to avail themselves of the protection of the authorities [3.1.3].”   

39.As complained by the Applicant, the Board did not appear to have made any factual finding on this particular issue of risk of persecution faced by him as a Sunni Muslim, one way or the other, without any reference to the COI available before it, and for which it seems to me reasonably arguable that the Board failed to discharge its duty under the “joint endeavor” approach to ascertain the future risk faced by the Applicant as a Sunni Muslim upon his return to Iraq given his claimed ill-treatment received during his detention by the ISF.

40.It seems to me that the Board did not do so mainly because of its adverse finding against the general credibility of the Applicant due to his failure to produce any proof of his claimed identity as a national of Iraq from Mosul, of which the Board found as noted above to be a striking feature of his case, that it appears to have just brushed aside or simply ignored altogether those relevant COI and materials before it in arriving at its conclusion that it was not persuaded that the Applicant would face any risk of ill-treatment by the ISF if refouled to Iraq or that he would not receive adequate protection from the Iraqi authorities because they were controlled by Shias.     

41.Which then brings me to the Applicant’s complaint that it was unfair and unreasonable for the Board not to re-consider or alter its previous findings against him after accepting his new evidence that he is indeed who he claimed to be: a Iraqi citizen and a Sunni Muslim from Mosul, Iraq, as it stated in [17] of its Second Decision that it would consider his claim only under the provision of BOR 2, and of which it proceeded to state as follows:

“Petitioner’s Nationality

27. Having considered the evidence of the petitioner and the new documents submitted by him at the BOR 2 hearing, and allowing the benefit of the doubt to the Petitioner, I am prepared to accept, on the balance of probability, that the photocopied image of the passport at page 222 of the Hearing Bundle (“HB”) relates to the Petitioner, and I am also satisfied that he is a Sunni Muslim.

28. … I am prepared to allow the Petitioner the benefit of the doubt and, on the totality of the evidence, I am satisfied, on the balance of probability, that the Petitioner is an Iraqi citizen as he claims.

29. The fact that the Petitioner has been able to obtain such supporting documents of identity from his family members indicates that his family members are willing to vouch for the petitioner if he is refouled to Iraq.

30. In the circumstances, the Petitioner would be in a position to obtain a new Iraqi passport, or other travel document. With the assistance of the Petitioner’s family, he would also be able to apply for a Civil Status Identity Document (“CSID”), either before, or after, his return to Iraq.

Future Risk to the Petitioner

31. On the Petitioner’s own evidence, he has never been involved in politics in Iraq, and never joined any protest against the Iraqi government, or any state authority in Iraq.

32. On the totality of the evidence, there is no reason for me to alter my previous findings of fact in relation to the petitioner’s claimed past experiences in Iraq.

33. He left Iraq on the first occasion in April 2010 but returned on two occasions subsequently which tends to contradict the petitioner’s claim that he fears that he will be arbitrarily deprived of his life, in contravention of BOR 2, if he is refouled to Iraq.

34. There is no evidence to support the petitioner’s assertion that he faces a real risk of being arbitrarily killed because he might be perceived as having opposed the Islamic State (“IS”). The IS has been defeated and no longer controls any part of Mosul, the Petitioner’s home town and the second largest city in Iraq.

35. The Petitioner says that he fears being arbitrarily killed by the Iraqi Security Forces (“ISF”) because of his “imputed political opinion” against the ISF, or in support of IS. Other than the Petitioner’s own speculation, there is no evidence to support the Petitioner’s assertion in this regard having regard to his evidence that he was not involved in any political activity, either for, or against, the Iraqi state or its authorities.

36. Equally, the Petitioner did not take part in any in any activity in Iraq which might have been perceived as being in favour of, or showing any support for, IS.

The Petitioner’s Religious Faith

37. As already indicated, I have accepted that the Petitioner is a Sunni Muslim and an Iraqi citizen. He can establish his identity by virtue of the photocopy of his Iraqi passport, and he can submit the documents relating to his family members in further support of his identity.

The Situation in Iraq

38. I have carefully considered the large volume of COI reports submitted by the DL and by Government Counsel. The most recent reports indicate that the mere fact that the Petitioner is a Sunni Muslim would not, of itself, indicate that there is a real risk, or a real chance, that he would be arbitrarily deprived of his life, in contravention of BOR 2, if he is refouled to Iraq.

39. Looking at the evidence as a whole, I am not persuaded, even to the low standard applicable, that there are any other significant factors relating to the Petitioner which would place him at additional harm because of his religious faith as a Sunni Muslim, if he is refouled to Iraq.

40. On the totality of the evidence, the Petitioner has failed to establish, to the low standard required, that there is a real risk, or a real chance, that the Petitioner would be arbitrarily deprived of his life, contrary to BOR 2, if he is refouled to Iraq.”   

42.It is not clear to me from the above as to the totality of what evidence upon which the Board found no reason to alter its previous findings as to the Applicant’s USM claims, or why the fact that he had never been involved in politics in Iraq that the Board saw no reason to alter its previous findings as to his claimed past experience in Iraq in relation to those risks under his USM claim.   

43.It seems therefore to me, for all the reasons given above, reasonably arguable that the Board, having earlier rejected the Applicant’s claim under the USM grounds of torture risk, BOR 3 risk and persecution risk mainly on the basis of its previous findings against his general credibility due to his failure to produce proof of his claimed identity, upon later accepting his new evidence that he is indeed an Iraqi Sunni Muslim from Mosul, that it is unfair and unreasonable that the Board then refused to re-consider the Applicant’s claim under those grounds.

Ground (1) Against Second Decision – Erred in not considering Article 5 & 10 in relation to BOR 2

44.In his appeal against the Further Decision of the Director on BOR 2 Risk, it was the Applicant’s submission that his feared harm of arbitrary deprivation of life intersects with the feared violations of BOR 10 (equality before the courts and right to fair and public hearing) as well as BOR 5 (liberty and security of the person), including CIDTP, torture, arbitrary deprivation of life during detention, trial/prosecution and punishment.    

45.In its decision the Board refused to do so for the following reasons:

“15. At the outset of the hearing, the DL submitted that the Board should also consider the Petitioner’s case under the provisions of Article 5 (Liberty and Security of the person) and Article 10 (Right to Fair Trial) of Section 8 of the HKBORO.

16. Having heard argument from both parties on the issue, I ruled that the provisions of Article 5 and Article 10 of the HKBORO had not been declared to be absolute and non-derogable rights and did not, of themselves, provide grounds for non-refoulement protection under the laws of Hong Kong.”  

46.Ms Ng submits for the Applicant that even though Article 5 and 10 per se are not standalone grounds for non-refoulement protection, the Board has erred in ignoring them altogether since they have a direct bearing on the Applicant’s claim under Article 2 of the HKBOR, as both his status as a Sunni Muslim and his personal profile have placed him at risk of being subjected to arbitrary arrest or detention (contrary to Article 5), and have deprived him of the right to fair trial (contrary to Article 10), thereby rendering him liable to death penalty, of which the Board failed to consider the argument at all, and therefore just considered the Applicant’s case on Article 2 of HKBOR in vacuum without regard to his likelihood of being subjected to arbitrary arrest or detention, and to the state of fair trial he would receive in case of prosecution.

47.As held by the Court of final Appeal in Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743, and cited by the Director in his Further Decision, a person not having the right to enter and remain in Hong Kong and whose rights protected by the HKBOR are subject to the territorial limits of Hong Kong and would not avail that person a basis for challenging the deportation order except in respect of BOR 3 because of the absolute and non-derogable character of the prohibition of CIDTP and the severe and irreparable harm it entails, and that there are no other grounds for making such an exception in relation to  BOR 11(6) in availing that person as a basis for the challenge.

48.As BOR 5 and BOR 10 are both not included in section 5(2)(c) of the HKBORO, as neither is absolute or non-derogable and hence no non-refoulement duty would arise from those articles, as conceded by the Applicant in the present case, and as the risks of arbitrary arrest and detention (contrary to Article 5) and of deprivation of fair trial (contrary to Article 10) could be considered as part of CIDTP when the Board came to determine the Applicant’s claim under BOR 3 Risk in its First Decision, the Board was entitled not to do so in its determination of his BOR 2 Risk, and as such I do not agree that this ground is reasonably arguable for the Applicant’s intended challenge of the Board’s Second Decision on BOR 2 Risk.       

Ground (3) Against Second Decision – Failure to give reasons for dismissing the Applicant’s claim

49.This ground relates to the Applicant’s claimed imputed political opinion as a source of risk of harm, but of which the Board found no evidence to support his assertion, as “he was not involved in any political activity” in its Second Decision [35] as noted above. 

50.The Applicant accepts that he never claimed any actual participation in politics, but submits that should not prejudice his claim under imputed political opinion, as the real question that the Board should have asked itself was that whether in light of the situation in Iraq and the personal circumstances of the Applicant including his profile and Sunni Muslim identity that any such imputed opinion was likely to have arisen, and therefore the Board erred in failing to consider this crucial issue and instead dismissed the claim simply because it could not find any actual political involvement on the part of the Applicant, and without referring to any COI materials to justify any departure from the position that young Sunni men are more likely to be targeted as perceived IS supporters.

51.As noted above in its Second Decision (see [34] – [36] & [38]), and on the facts of the Applicant’s own case, the Board was in my view entitled to find no evidence of any real chance of BOR 2 Risk. Whether or not those other USM grounds such as BOR 3 Risk or Persecution Risk could be engaged on the facts of the Applicant’s case, I shall say no more at this stage in view of my finding that the Applicant’s Ground (2) is reasonably arguable against the Board’s Second Decision as to its failure to reconsider those USM grounds after having accepted the Applicant’s claimed identity on additional evidence.

52.As such and in the premises, I do not agree that this ground is reasonably arguable for the Applicant’s intended challenge against the Board’s decision regarding BOR 2 Risk.

Ground (4) Against Second Decision – Finding regarding the Applicant being able to obtain new passport and civil status identity without basis

53.The Applicant complains that the Board having found that he had been able to obtain identity documents from his family that they would vouch for him and assist him to apply for his Civil Status Identity Document (“CSID”) as mere speculation without any basis, and is contrary to available COI in relation to obtaining CSID in Iraq, and that in the circumstances of the Applicant there is in fact no reasonable likelihood of him obtaining a CSID, without which he would not be able to access to financial assistance from the authorities, employment, education, housing or medical treatment, and hence the Board’s decision must be quashed on this ground alone.

54.As noted in paragraph 41above, after receiving further evidence and documents from the Applicant and accepting his claimed identity and nationality, the Board formed the view that the Applicant would be able to apply for a CSID with the assistance of his family upon his return to Iraq, of which it was in my view entitled to do, but even if such view was wrong, it would still not engage the BOR 2 ground of which the Board, rightly or wrongly, decided to consider its provision only in its Second Decision. Accordingly I do not agree that this ground is reasonably arguable either. 

Ground (5) Against Second Decision – Failure to consider key COI in assessing the Applicant’s risk as a Sunni Muslim

55.Of this assessment by the Board ([38] – [39]) as noted above, the Applicant complains that the Board had cherry picked COI materials in its own favour, and also misunderstood his case which is not that he would be subjected to a real risk of serious harm merely because of his Sunni identity per se, but rather the cumulative effect of his profile, personal circumstances and events which altogether put him at a real risk of serious harm but which the Board merely approached with a broad brush and failed to properly address in its assessment, thus fell fouled of the high standards of fairness required.   

56.I agree that this ground would be arguable had the Board been assessing the Applicant’s BOR 3 Risk or Persecution Risk, but as clearly stated in its Second Decision [17], the Board, again rightly or wrongly, was to consider the Applicant’s claim only under the provisions of BOR 2, in which case even on the facts of the Applicant’s own case, and in light of the scope and threshold of a BOR 2 claim, there is no room for engaging the BOR 2 ground. As such I do not see how this ground can assist or advance the Applicant’s case or is arguable for his intended challenge.

Decision

57.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decisions is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I grant leave to the Applicant to apply for judicial review of both decisions of the Board on the bases of all of his proposed grounds against the First Decision and Ground (2) against the Second Decision.

58.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, and with costs be in the cause, with Legal Aid taxation.

Dated the 7^th day of July 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