Cnm and Others v. Torture Claims Appeal Board

HCAL 2696/2019

[2022] HKCFI 312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2696 of 2019

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 Applicants 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 Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

Introduction

1.The Applicants are a family of a married couple with their 4 children, with the 1^st Applicant (“A1”) a Pakistani husband and the 4^th Applicant (“A4”) his Filipino wife, and their 2 daughters as the 2^nd and 3^rd Applicants (“A2” & “A3”) and their 2 sons as the 5^th and 6^th Applicants (“A5” & “A6”), with A1 having first filed a torture claim for himself on the basis that if he returned to Pakistan he would be harmed or killed by his family, his fellow villagers and the Muslim community as well as the Pakistani authorities for converting his religion from Islam to Christianity, while A4 separately filed a torture claim for herself, their elder son A5 and their 2 daughters A2 and A3 on the basis that if they returned to the Philippines, they would be harmed or killed by a former suitor of A4 in the Philippines for rejecting his courtship, and after their respective torture claims were rejected, A1 then sought non-refoulement protection on the same basis as before for himself and daughters A2 and A3, while A4 also sought non-refoulement protection for herself and elder son A5 on the same basis as in her torture claim, and upon the birth of the younger son A6 she also raised a non-refoulement claim for him on the same basis as hers. All the applicants have been released on recognizance pending the determination of their claims.

2.Their respective non-refoulement claims were separately considered and determined by the Director of Immigration (“Director”), and were rejected by separate decision of the Director of the same date of 29 June 2017. However, in their subsequent appeals to the Torture Claims Appeal Board (“Board”), A1’s non-refoulement claim included the 2 daughters A2 and A3,  while A4’s were for herself and the 2 sons A5 and A6, and their claims were then consolidated by the Board for hearing and determination, and upon the dismissal of their appeals by the Board which also confirmed the respective decisions of the Director, all the Applicants then jointly sought leave for judicial review of the Board’s decision under the present application on Legal Aid with Ms Allison Wong assigned as counsel for their application.

Factual Background of the 1^st Applicant  

3.A1, now aged 52, was born and raised as a Muslim in Sankiyan, Tehsil and District Hanipur, Pakhtoonkhwa Province, Pakistan. In 1991 he went to Saudi Arabia to work as a driver until 1996 when he went to work in Malaysia.

4.On 2 August 1998 he travelled to Hong Kong as a visitor with permission to remain up to 2 November 1998, but on 25 October 1998 he was arrested by police for indecent assault, criminal damage and assaulting a police officer, for which he was convicted and sentenced to prison for 2 months, and upon discharge from prison he was deported on 17 January 1999 to Pakistan.

5.On 12 August 1999 he again travelled to Hong Kong with a passport of a different identity with permission to remain as a visitor up to 26 August 1999 when he did not depart and instead overstayed, and on 25 December 2000 he was arrested by police for overstaying and indecent assault, for which he was convicted and sentenced for 3 months, and was thereafter on 6 March 2000 repatriated to Pakistan.

6.Less than 3 months later on 26 May 2001, he departed Pakistan for Singapore and Macau, and on 1 June 2001 arrived in Hong Kong under the passport of yet another identity with permission to remain as a visitor up to 15 June 2001 when he again did not depart and overstayed in Hong Kong, during which he met someone who introduced him to the religion of Christianity, in which he gradually became interested and started to attend services in various local churches.

Factual Background of the 4^th and other Applicants

7.It was around this time that A1 met and formed a relationship with A4 who was then a foreign domestic helper working in Hong Kong, and who was born and raised as a Christian in Dagupan City, Pangasinan, the Philippines. After leaving school she worked in a fast food restaurant in Dagupan City, and in 1997 a friend of her brother by the name of Roberto who was then a soldier in the army wanted to pursue her as his girlfriend, but A4 was not interested, and to avoid his courtship she left the Philippines to work in Taiwan, and in 2000 she came to Hong Kong to work as a foreign domestic helper, and subsequently formed a relationship with A1.

8.In March 2002 when her then employment contract was terminated, A4 left Hong Kong to return to the Philippines, but shortly thereafter in April 2002 she travelled to Hong Kong again but this time as a visitor under another identity, and when she overstayed her visa she then went underground to cohabit with A1, and when she became pregnant with their eldest child A5, she surrendered to the Immigration Department in June 2003, and was repatriated to the Philippines where she subsequently gave birth to A5 on 15 December 2003. When Roberto learnt about it, he was very unhappy but did not then do anything against A4.

9.Two years later on 5 November 2005, A4 left A5 in the care of her mother in the Philippines and returned to Hong Kong by herself to resume her work as a foreign domestic helper under a new employment contract, and carried on her relationship with A1.

10.On 28 December 2005 A1 was arrested by police for theft, possession of another person’s identity card and breach of his condition of stay, and was subsequently convicted and sentenced to prison for 2 years, during which he continued to pursued his interests in Christianity, and eventually in December 2006 he converted his religion to become a Christian despite being warned by other Muslim inmates in prison not to do so, and for which he was even attacked on one occasion by one of them, and after he had informed his mother and family on the phone about his conversion to Christianity and his relationship with A4 as a Christian, they were furious and renounced him for dishonoring the family, filed a FIR report to the local police for blasphemy for converting his religion and for subsequently marrying a Christian, and threatened to kill him when he returned to Pakistan as a ‘fatwa’ had been issued against him by a Mullah in their home district, which thus caused A1 to subsequently raise a torture claim to the Immigration Department.

11.After his discharge from prison, A1 was released on recognizance pending the determination of his torture claim by the Immigration Department when he resumed his relationship with A4, and on 14 October 2008 they formally registered their marriage in Hong Kong.

12.Meanwhile A4 continued with her job as a foreign domestic helper, and gave birth to elder daughter A2 in 2010, younger daughter A3 in 2012, and younger son A6 in 2015, and in February 2011 A4 also brought her elder son A5 from the Philippines to Hong Kong after being told by her mother that Roberto had threatened to harm A5 by sending his dogs to attack him in revenge for A4’s rejection of his courtship, and had also made threats against A4 on the phone, and so A4 became fearful for her life and for A5, and after A5 had overstayed in Hong Kong, she then raised a torture claim for both of them as well as her daughters A2 and A3 on the same basis, and after their torture claims were rejected, she then sought non-refoulement protection for herself and A5 and A6 upon his birth in 2015, while A1 also did the same after his torture claim was rejected, but for which he also included his 2 daughters A2 and A3 in his claim, and with legal representation from the Duty Lawyer Service (“DLS”) which also represented his wife and sons in their non-refoulement claim.      

Director’s Decision on claim by A1, A2 and A3     

13.By a Notice of Decision dated 29 June 2017 the Director rejected the claim of A1, A2 and A3 on all the remaining applicable grounds other than torture risk including risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

14.In his decision the Director took into account of all the relevant circumstances of their claim and assessed the level of risk of harm from A1’s family, people in his home village and the Muslim community upon their return to Pakistan as low as the laws in Pakistan prohibit the use of blasphemy against Christians and other religious groups, that the statistical figures did not show that Christians were particularly vulnerable to being accused of blasphemy, that A1’s fear is based on his mother’s responses over the telephone and not on any personal or real experience in Pakistan and in the absence of any documentary evidence of any police warrant or ‘fatwa’ being issued against him by the Pakistani authorities, that state or police protection would be available to him and his daughters 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 201 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his daughters to other part of Pakistan away from his home district in large cities such as Lahore where it would be difficult if not impossible for them to be located.

Director’s Decision on Claim by A4, A5 and A6

15.By a Notice of Decision of the same date of 29 June 2017, the Director also rejected the claim of A4 and her sons under the remaining applicable grounds including BOR 2, BOR 3 and Persecution risks except for A6 which also included torture risk by taking into account all their relevant circumstances and assessed the level of risk of harm from Roberto upon their return to the Philippines as low due to the absence of any ill-treatment inflicted on them by him or his men in the past which is indicative of a small future risk of harm upon their return to the Philippines, that after all those years of A4’s departure from the country that it is doubtful that Roberto would still have any adverse interest in her or her children, that in any event it was a private personal dispute between them without any official involvement that state/police protection would be available to A4 and her children if required, and that reliable and objective COI show that reasonable internal relocation are available in the Philippines with a large population of 100 million spread across a vast territory of more than 300,000 square kilometers that it would not be unduly harsh for A4 as an able-bodied adult with working experience to move safely with her sons to other area away from her home district in large cities such as Manila where it would be difficult if not impossible for Roberto to locate them.         

Appeals to the Board

16.A1 and A4 then lodged their respective appeal for themselves and their children to the Board against the Director’s decisions, which were then consolidated by the Board for hearing and determination, and for which they attended 2 oral hearings on 24 May 2019 and 19 July 2019 before the Board with legal representation from DLS but somehow for A1, A2 and A3 only, during which both A1 and A4 gave evidence and answered questions raised of their respective claim by the Adjudicator for the Board. On 16 August 2019 their appeals were dismissed by the Board which also confirmed the decisions of the Director.

The Board’s Decision

17.In its decision the Board found in the case of A1 and his daughters that he had exaggerated the risks and danger of his return with his family to his home country, that his evidence in his NCF and screening interviews before the Immigration Department and those given at his appeal hearing before the Board full of inconsistencies especially as to the timeline of his conversion to Christianity, his disclosure to his mother and family, and his mother’s FIR report to the police in Pakistan, while his assertions of being discriminated by his fellow Pakistani on the streets in Hong Kong due to his conversion were exaggerated, incredible and implausible that it doubted the credibility of his claimed fear of harm due to his conversion to Christianity, that in any event religious conversion of a Muslim person by itself is not an offence in Pakistan, and while blasphemy is an offence under the blasphemy law, there has been no police warrant issued against A1 for the offence or any evidence that he is a wanted person in Pakistan either because of the FIR made against him by his mother or of any ‘fatwa’ being issued against him for blasphemy, that as long as he does not practice any act of blasphemy or actively preaching his religion in public that he and his daughters should be able to live in peace in Pakistan, and that the new ruling party led by Imran Khan has promised changes and reforms to the country’s corruption that situation in Pakistan has begun to improve, while he and his daughters can also safely relocate to other part of the country away from his home district without any risk of being located by his own family or any villagers in his home village that their claim for non-refoulement protection failed on all applicable grounds.

18.As for the appeal of A4 and her sons, the Board also found inconsistencies and exaggerations in her evidence of claimed fear of harm from Roberto for still being angry with her for rejecting him some 14 years ago, and doubted that he now in his 50s would still be pursuing A4 who is in her late 40s with 4 children and whom he has not seen for close to 20 years, that it is also unlikely that a man with little influence in a small village in the Philippines would pursue all over the country for A4 when he could have done so between 2003 and 2005 when she returned to her home village to give birth to A5 but never even made any verbal threats against her, that the alleged incidents of dogs attack on A5 could well be just an accident, and that in the unlikely event of A4 and her children should be at risk from Roberto upon their return to the Philippines, state or police protection would be available to them as well as reasonable internal relocation for them to move safely to other area away from her home district without any risk of being located, and with supports and assistances from various NGOs to help them with adaptation that their claim for non-refoulement protection also failed on all applicable grounds.       

Application for Judicial Review 

19.On 16 September 2019 A1 filed a Form 86 for himself and all the members of his family for leave to apply for judicial review of the Board’s decision, and with legal representation on Legal Aid they put forth the following amended grounds for their intended challenge:

(1) Cherry picking of the COI by the Board resulting in its failure to properly consider A1’s status and/or identity as a Christian convert instead of just being a Christian per se which led to a Wednesbury unreasonable or irrational decision that state protection and reasonable internal relocation would be available to the Applicants upon their return to Pakistan to negate such risk and/or failure to give adequate reasons;

(2) Error of law in considering that A1 should not practice his religion in public therefore wrongly conclude that by doing so he would not expose himself and his family to persecution risk in Pakistan;

(3) Error of law in requiring A1 to produce or in finding that he had failed to produce corroborating evidence for his claim for non-refoulement protection;

(4) Procedural unfairness and error of law in failing to properly or adequately consider the claims of A2, A3, A5 and A6 including those which may be specific to their circumstances as minor children; and

(5) Failure to properly assess the risks of A2 to A6 arising from their relationship with A1 as a converted Christian if they were to return to Pakistan as a family.  

20.Given the nature of these complaints, Grounds 1 and 2 can be considered together, as also with Grounds 4 and 5.

Grounds 1 & 2: Error of law and/or Wednesbury unreasonableness in assessing A1’s claim of risk as a Christian convert

21.It is A1’s submissions that the Adjudicator cherry picked COI and therefore failed to properly consider and assess his status and/or identity as a Christian convert instead of a Christian per se, that the cherry picking of COI on Christians in Pakistan instead of Christian converts tainted all aspects of the Board’s assessment of his claim for protection and that of his family, viz the risks of harm, the availability of state protection, as well as the viability of internal relocation, and consequently it made an irrational decision and/or failed to give adequate reasons.

22.In considering these complaints of A1, it would be necessary to first set out the relevant findings by the Adjudicator in the Board’s decision as follows:

“53. His religious conversion did not take place in Pakistan and there are no witnesses to his conversion in Pakistan. He had made the disclosure of his conversion to his mother and his brothers over the telephone and by letters to his family members. It was many months after his disclosure to his family that his mother took the step of reporting and denouncing him because of his relationship/marriage with a non-Muslim Christian woman to the police station in February 2007. At the oral hearing, he admitted he had informed his family that he had a son with the 4^th Appellant in 2004, therefore, his mother knew of his relationship with a non-Muslim woman three years before the FIR was laid. When confronted with the dates of his letters to his family informing them of his religion conversion in May and June 2006, the date of his completion of the Alpha course on 2 December 2006 and the date of his baptism in prison on 7 December 2006 and the date of his mother ‘s FIR on 15 February 2007, he changed the date of his telephone conversation with his mother to December 2006. The 1^st Appellant brought on to himself the possible risk of returning to his parents’ home at his home village by his confession to his family of his religious conversion in his letters to his family in May and June 2006, 6 months before his baptism. While most people would have kept quiet about the conversion of a member of the family living overseas, his mother took the unusual step of making a report at the police station against him after his brother Nawazish Khan wrote him a letter denouncing him and threatened to kill him forbidding him from returning to his home. While in 2006, he has yet to marry the 4^th Appellant though she had already given birth to the 5^th Appellant who was living in the Philippines until 2011 and she was back in Hong Kong working as domestic helper and residing at her employer’s home.

 54. Religious conversion of a Muslim person by itself is not an offence in Pakistan, only blasphemy is an offence under the blasphemy law in Pakistan.  Therefore, so long as the 1^st Appellant does not commit any act of blasphemy and actively preaching his religion in public, he should be able to live in Pakistan in peace. Reference can be found in the country surveys on apostasy laws of twenty-three countries in Africa, the Middle East, South Asia, and Southeast Asia of the U.S. Law Library of Congress …”     

23.The Adjudicator then arrived at her conclusion on the claimed risk of A1 after having referred to the UKBA Country Policy and Information Note Pakistan: Christians and Christian Converts Guidance, September 2018, extensively on Section 2.4 Assessment of risk – Christian (see [55] of the Board’s Decision), but as pointed out by Ms Wong for the Applicants, without making any reference to the far more relevant Section 2.5 Assessment of risk – Christian converts, of which Ms Wong submits would go to support A1’s claim of risks of torture and persecution for being a Christian convert upon his return to Pakistan with his family, where the relevant parts of the Section state as follows (BD5/40/1029-1030):        

“2.5. Assessment of risk – Christian converts

2.5.1 There is no law against conversion. However, a person who converts from Islam to another religion will be accused of apostasy and, as a result, may face accusations of blasphemy (see Christian converts – Apostasy, Blasphemy laws and Blasphemy allegations).

2.5.2 the situation is far more difficult for a person who is known to have converted from Islam to Christianity, than for a person who was born Christian, it is rare, in Pakistan, for a person to openly convert to Christianity as it is likely that a person’s conversion will become well-known within their community, with potential repercussions (see Christian converts).

2.5.3 It is difficult for those known to be Christian converts to live freely and openly in Pakistan. In general, society is extremely hostile towards converts to Christianity, with attacks on converts occurring even decades after they have changed religion. A Mullah may issue a fatwa calling for a death sentence against a convert who has been deemed an apostate. People who are known to have converted to Christianity suffer acts of violence, intimidation and serious discrimination from non-state actors, which can, in individual cases, amount to persecution and/or serious harm. Such treatment is prevalent throughout Pakistan.

2.5.4 There are very strong grounds supported by cogent evidence to suggest the situation has deteriorated for Christian converts – in relation to accusations of apostasy resulting in blasphemy charges, and the extreme hostility faced by society and Islamists. Therefore, decision makers must no longer follow the country guidance case of AJ (Risk, Christian Convert) Pakistan CG [2003] UKIAT 00040 (August 2003), which found that converts to Christianity in general do not face a real risk of inhuman or degrading treatment (paragraph 36). However, each case must be considered on its facts.

2.5.5 A person who returns to Pakistan having converted from Islam to Christianity while abroad, who does not actively seek to proselytize or publicly express their faith, and/or considers their religion a personal matter, may be able to continue practicing Christianity discreetly.

2.5.6 In cases where the person will be discreet about their religion on return, the reasons for such discretion need to be considered in the light of HJ (Iran). Decision makers should take account of how the person has practiced their religion whilst in the UK. A person should not be expected to conceal their religion, their conversion or their activities relating to the conversion of others, if they are not willing to do so. However, if the person would conceal his or her religion or religious activities for reasons other than for a fear of persecution, then the person would have no basis for their claim for international protection. Each case must be considered on its facts.”   

24.Ms Wong also submits that while Section 2.6 of the UKBA Report detailed the situation of Christian converts in Pakistan and possible protection from the state, and in general the state appears both willing and able to offer effective protection to Christians and other religious minorities, but the Adjudicator did not go on to consider the other parts of the Section relevant to Christian converts who are exposed to greater risk (BD5/40/1031):

“2.6.5 People who are known to have converted to Christianity from Islam suffer serious societal discrimination and acts of violence, as well as discrimination by the authorities (see Christian converts).

2.6.6 As a result, the state appears both unwilling and unable to offer effective protection to Christian converts, who are targeted because of their conversion, and the person will not be able to avail themselves of the protection of the authorities. However, each case must be considered on its facts…”   

25.Ms Wong submits that the Adjudicator was well aware that A1 is a Christian convert instead of a mere Christian which formed the basis of his claim, i.e. religious conversion, and of which the Board did not appear to have taken any real issue, and hence it is simply inexplicable that the Adjudicator failed to demonstrate her awareness of those extremely relevant passages in Section 2.6 when she did refer extensively to the presiding Section 2.5 of the same 2018 UKBA Report before arriving at her conclusion as to the assessment of the risk faced by A1 in the Board’s decision.     

26.Ms Wong argues that such failure to direct herself to the relevant sections of the report is fatal to the Adjudicator’s assessment of A1’s risk, as it is clear from such information that A1 as a Christian convert would be at a much bigger risk than a mere Christian, and given the FIR made by his mother to the police, he may also be liable to be accused of apostasy and/or charged with blasphemy, as stated in Section 6 of the Report as follows but which had never been never referred to by the Adjudicator in the Board’s decision (BD5/40/1038):

“6. Christian converts

6.1 Apostasy

6.1.1 Professor of Law, Javald Rehman, who investigated ‘the uses and abuses of certain interpretations of Sharia law and the Quran’, wrote in a 2010 publication:

‘Apostasy (also known as Ridda) occurs when a Muslim (by his words or actions) renounces and rejects Islam. Rejection or criticism of the All Mighty or His Profits is perceived as an insult to Islam, offensive and routinely regarded as blasphemous … Apostasy from Islam and blasphemy against Islam therefore remain (and have always remained) unacceptable’ …

6.1.2 Whilst there is no law against religious conversion, according to Shehryar Fazli, Senior Analyst and Regional Editor at the International Crisis Group (ICG), speaking at the EASO conference on Pakistan in October 2017, ‘A person who converts out of Islam will be accused of apostasy.’ …

6.1.3 Also speaking at an EASO conference on Pakistan, Matthew Nelson, Reader in Politics, PhD, at the School of Oriental and African Stuidies (SOAS), University of London, stated:

‘Converts from Islam to Christianity […] face a legal loophole. And the loophole is that Pakistan still has no formal statutory law governing Muslim apostasy …’

6.1.4 Information obtained from locally engaged staff at the BHC and other open sources was provided to CPIT, stating that:

‘Although no examples of anyone actually being criminally prosecuted for apostasy were found, conversion is not without consequences. It has been reported that if a married Muslim couple converts to another religion, the couple’s children become illegitimate and may become wards of the State. In addition, according to one report, though it is theoretically possible to change one’s religion from Islam, in practice, the state attempts to hinder the process. Converts from Islam and atheists may also be vulnerable to Pakistan’s blasphemy law …’

6.1.5 A person who converts to another faith or who is seen to renounce Islam in any other way can be targeted for blasphemy, which carries the death penalty and, according to sources consulted by Christian Solidarity Worldwide (CSW), once a Muslim decides to become a Christian and their conversion becomes known, their life is at risk, Pakistani society in general is extremely hostile to converts with reports of converts being harassed, attacked and ‘tortured’.”

27.In Section 6.2 the Report also described the following treatments of converts which were not mentioned by the Adjudicator in the Board’s decision (BD5/40/1039-1040):

“6.2.1 In a letter dated 17 March 2016, anecdotal evidence from the British High Commission’s (BHC) external contacts in Pakistan reported that:

‘ … it would be difficult for Christian converts to live freely and openly in Pakistan, as converts over and above being Christian. It is our view that people who are known to have converted to Christianity suffer serious discrimination, for example in the workplace or by the authorities. It is far more difficult for people in Pakistan who are known to have converted to Christianity, than it is for people who were born Christian. We understand that ti would be rare for someone to convert to Christianity, or at least to do so openly, in Pakistan. It is therefore something of note for the community, with potential repercussions.’

6.2.2 There were reports of threats and attacks against Muslims who had converted to Christianity to get married. On 19 October 2015, Asia News reported on a family who had been forced into hiding for nearly ten years following threats they received due to their conversion to Christianity …

6.2.3 In a November 2015 submission to the All Party Parliamentary Group (APPG) for International Freedom of Religion or Belief, Christian Solidarity Worldwide (CSW) stated ‘Our sources have noted that once a Muslim makes a decision to become a Christian and if their conversion becomes public knowledge, their life is at risk. They are deemed an apostate and to have blasphemed the profit Mohamed, which carries a death penalty. Our sources have informed us that usually a Mullah will be informed and he will issue a “Fatwah” and a male cousin or family member will attempt to kill or will kill the apostate.’

6.2.4 The Immigration and Refugee Board of Canada (IRB) cited the British Pakistani Christian Association (BPCA) as saying in December 2012 ‘In all mainstreams of Islamic jurisprudence abandoning Islam is considered a capital crime, particularly for men. Thus in general, families think and society thinks very poorly of converts to Christianity, and many deem it their duty to kill them … Pakistani society in general is extremely hostile to converts, and attacks on those who have converted can re-occur years or even decades after they have changed religion.’ The IRB report provided examples of such attacks. According to the Jubilee Campaign, ‘Converts to Christianity are often extremely vulnerable, finding police and local authorities on the side of those perpetrating violence against them.’ The children of a Muslim man and a Muslim woman who both convert to another religious group are considered illegitimate, and the government may take custody of the children.

…

6.2.6 According to Open Doors, whilst Christian converts may face risks from radical Islamic groups, their main source of danger was from their families as conversion from Islam was seen as shameful.”  

28.Furthermore, Ms Wong submits that in assessing persecution risk, it is no answer to a persecution claim to require a claimant to disguise or hide the protected characteristic in return for his or her safety, as it was stated by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 586 at para 110:

“The Convention must be construed in the light of its object and purpose, which is to protect a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

If the price that a person must pay in order to avoid persecution is that he must conceal his race, religion, nationality, membership of a social group or political opinion, then he is being required to surrender the very protection that the Convention is intended to secure for him. The Convention would be failing in its purpose if it were to mean that a gay man does not have a well-founded fear of persecution because he would conceal the fact that he is a gay man in order to avoid persecution on return to his home country.”

29.In RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152, the UK Supreme Court repeated the same point that a person who had political beliefs and would be obliged to conceal them in order to avoid persecution attracted the protection of the Convention, as Lord Dyson stated:

“26 The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them. Mr Swift accepted that such a person would have a “strong” case for Convention protection, but he stopped short of an unqualified acceptance of the point. In my view, there is no basis for such reticence. The joint judgment of Gummow and Hayne JJ in the Appellant S395/2002 case [2004] INLR 233 contains a passage under the heading “’Discretion’ and ‘being discreet’” which includes the following, at para 80:

‘If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be ‘discreet’ about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well-founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.’

…

28. In the context of religious belief, the United Nations High Commissioner for Refugees has said (in my view, rightly):

‘Applying the same standard as for other Convention grounds, religious belief, identity or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution”: Guidelines on International Protection: Religion-Based Refugee Claims under article IA(2) of the 1951 Convention and/or Protocol relating to the Status of Refugees (2004), para 13 (emphasis added)’.”

30.Ms Wong therefore submits that the Adjudicator by attributing A1’s risk based on his identity as a converted Christian to his own doing by disclosing it to his mother and family, and by assessing that he should be safe if he could hide his religion upon returning to Pakistan had made an error of law, which together with her failure to properly consider A1’s claim founded on his Christian convert identity led to her problematic conclusion in assessing the persecution risk that A1 would face in Pakistan.     

31.Given the selected passages of the COI which the Adjudicator had referred to in her assessment of A1’s risk upon his return to Pakistan based on his identity as a Christian convert but not those more relevant ones as shown above, and her conclusion that such risk can be avoided by concealing his religious belief notwithstanding the clear principles referred to above that such concealment is no answer to a claim for protection from persecution risk, I agree with Ms Wong’s submissions that Grounds 1 and 2 of the Applicants are reasonably arguable for their intended challenge.   

Ground 3: Error of law in requiring corroborating evidence in support of claim

32.For this complaint Ms Wong submits that the Adjudicator erred in law in requiring A1 to submit documentary proof that he would be arrested by police or charged for blasphemy upon his return to Pakistan notwithstanding his oral evidence given before the Board and the production of a copy of the FIR made by his mother to the local police, as the Adjudicator so stated in the Board’s decision in her assessment of BOR 3 Risk at para 60:

“… As to the risk from the police from his home village in Pakistan induced by his mother’s FIR against him, there is no evidence that the police would arrest or charge the 1^st Appellant and his wife and children for blasphemy since they have been living abroad and his conversion took place after he came to Hong Kong. There has been no police warrant against the 1^st Appellant for blasphemy issued. He alleged that he is a ‘wanted person’ in Pakistan because of his mother’s FIR disowning him for living with a non-Muslim woman, he failed to produce any documentary proof that he is on Pakistan’s criminal ‘wanted person’ list in support or that a ‘fatwa’ has been issued against him for ‘blasphemy’.”

33.Ms Wong submits that the Board ought to have taken into account that an asylum seeker has very little opportunity or possibility of possessing documentary evidence or corroborating evidence to support his claim, as he is expected to do so only within reasonable bounds and not absolute, and the exercise of determining whether a torture claim is valid is one of “joint endeavor” by the claimant and the decision-maker.

34.In the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (reissued December 2011), and adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, where it states that the relevant facts will have to be furnished by the applicant, and that the decision-maker will then have to assess the validity of any evidence and the credibility of the claim, it also recognizes there are situations where the applicant may not be able to support his statements by documentary proof, as it explains at para 196 under the topic of Principles and Methods in Establishing the Facts:

“It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”

35.In the assessment of the credibility of A1’s evidence as to his claim, the Adjudicator found that he had exaggerated the risks and danger of his return to his home country, and that his evidence in his NCF and interview before the Immigration Department and those at his oral hearing “full of inconsistencies” (see [51] – [53] of the Board’s Decision).  However, apart from what were said to be some discrepancies as to the timeline of A1’s disclosure to his mother, his conversion to Christianity, and his relationship and marriage with A4, all of which could have been put down as possible lapse of memory due to fact that those events had occurred more than 10 years ago before the appeal hearing, the Adjudicator did not appear to have identified any other aspect of A1’s evidence that may have affected his credibility, and in the absence of any other reason given in the Board’s decision, coupled with those relevant COI noted above as to the greater risks to Christian converts in Pakistan including charges of apostasy and blasphemy, it seems to me reasonably arguable that benefit of the doubt should in the circumstances have been afforded to A1, and that there was no basis for the Adjudicator to require documentary proof from him as to the risk from the police or the Pakistani authorities.      

36.For these reasons I am of the view that this Ground of the Applicants is also reasonably arguable for their intended challenge.

Ground 4 & 5: Failure to properly and separately assess the claims of other Applicants in relation to their personal circumstances in particularly those of the minor children 

37.For these 2 complaints, Ms Wong submits that the Adjudicator failed to apply the principle laid down by Court of Appeal in the case of Fabio Arlyn Timogan [2021] 2 HKC 458 to separately assess the claims of those minor children of A1 and A4, in particularly of their sons A5 and A6 who were somehow unrepresented in their appeal before the Board, including any child-specific rights and risks in their cases, and be it whether they were to return with their parents to the Philippines or Pakistan, as it is apparent that all their claims were considered only together with those of their parents (see [59] – [70] of the Decision).

38.The same can also be said of the assessment of internal relocation when the Adjudicator again considered essentially the circumstances of their parents without giving separate consideration to the personal circumstances of each of the minor children or any minor-specific non-refoulement grounds, in particularly of the fact that A2, A3 and A6 were all born in Hong Kong and have never been to either country, while A5 was born and raised in the Philippines for some 8 years before coming to Hong Kong and has also never been to Pakistan.    

39.In Fabio supra the Court of Appeal set out the following principle for assessing minor-specific rights and claims of children in [34]:

“(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of a child.”

40.Given the assessments by the Adjudicator as recorded in the Board’s decision, it seems to me that those claims of A2, A3, A5 and A6 who were then all minor children when they appeared before the Board had not been separately assessed in accordance with the Fabio’s propositions, and as such it is my view that these 2 Grounds are reasonably arguable for the Applicants’ intended challenge.

Conclusion

41.In the premises and for the reasons given, I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable on the basis of those grounds referred to above, having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

42.According I grant leave to the Applicants to apply for judicial review of the Board’s decision on the bases as stated above, and in accordance with Order 53 Rule 5 of the Rules of the High Court, Cap 4A direct that they shall file 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 on the Director as interested party, and with costs to be in the cause, and the Applicants’ own costs to be taxed on Legal Aid Regulations.

Dated the 27^th day of January 2022.

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