Ashraf Muhammad v. Torture Claims Appeal Board

HCAL 48/2019

[2022] HKCFI 3114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 48 of 2019

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally sometime in October 2006 and was arrested by police on 25 September 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the Pakistani authorities and/or the Muslim community for being a member of the spiritual organization known as Messiah Foundation International (“MFI”) whose teachings were regarded by Muslims as blasphemy against Islam and punishable by the death penalty, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ghulam-Muhammad-Abad, Faisalabad, Pakistan. In 1995 he attended a religious conference in Rawalpindi where he met the spiritual leader Riaz Ahmed Gohar Shahi (“Shahi”) who founded the spiritual movement Anjuman Serfaroshan-e-Islam (“ASI”) which promoted divine love and world peace amongst all religions, and subsequently joined his movement and became a ASI member to help spread its religious teachings by organizing meetings and conferences all over the country.

3.In 1998 ASI started to encounter oppositions from various religious groups and the Muslim community, and with their members including Shahi being attacked by the Taliban, while the Pakistani authorities also banned publications by Shahi as objectionable to the religious feelings of the Muslims.

4.In 2000 Younus AlGohar, a follower of Shahi’s teaching from UK, established MFI to continue with Shahi’s spiritual movement and invited former ASI members to join them, and soon the Applicant together with some other ASI members were arrested by the police for interrogations as to their relationship with MFI, and it was only after his father was able to get help from a member of the Province Assembly that the Applicant was subsequently released from police detention.

5.About one month later the police found anti-Muslim words written on some public walls in Faisalabad, and again arrested the Applicant together with other ASI members for interrogations, and on this occasion his father paid bribes to the police for the Applicant’s subsequent release after 3 days of detention.

6.Upon his release from the second detention, the Applicant became fearful of further arrest and persecution under the blasphemy law, he therefore departed Pakistan in November 2000 for China where he stayed until March 2001 before returning to Pakistan but where he only stayed in a friend’s place in Rawalpindi, during which he heard that Shahi had disappeared and was later said to have died in UK.

7.Upon the reported death of Shahi, there were more pressure from MSI for the Applicant and his fellow ASI members to join MFI, but as the Applicant suspected that Younus AlGohar might be responsible for Shahi’s death, he refused to join MFI, and for which he started to receive threats from MFI members. To avoid such threats as well as the police, the Applicant kept a low profile and moved from place to place, and in August 2001 he again departed Pakistan for China, and from there he travelled to Hong Kong as a visitor but where he subsequently overstayed, and was eventually arrested by police and was repatriated on 29 December 2004 to Pakistan.

8.Upon landing in the Karachi airport, the Applicant was detained at the immigration control for interrogation before being released on the following day when he returned to his home in Faisalabad, but as he continued to receive pressure and threats to join MFI, and was on one occasion being attacked by some former ASI members who had joined MFI, the Applicant departed Pakistan again in September 2005 to Malaysia where he found a job to support himself.

9.In May 2006 he returned to Pakistan, but as he was still fearful of being harmed by MFI members or of any further adverse interests from the Pakistani authorities, the Applicant on 3 October 2006 departed Pakistan again for China, and from there he later sneaked into Hong Kong and sought refugee status from UNHCR, but after his application was refused, he was arrested by police in September 2009 when he then raised his torture claim, and was released on recognizance pending the determination of his claim.

10.In 2007 he heard from his parents in Pakistan that his elder brother and family had joined MFI, and so he began to study their teachings and activities, and in 2011 after having a telephone conversation with Younus AlGohar, he became a member of MFI and started participating their activities in Hong Kong.

11.After his torture claim was rejected by the Immigration Department, the Applicant then sought non-refoulement protection on the basis that being a member of MFI and a follower of the teachings of Younus AlGohar, he feared of being harmed or persecuted by the Muslim community and the Pakistani authorities for preaching contrary to the Islamic law and for blasphemy, for which he completed a Supplementary Claim Form (“SCF”) on 2 March 2016 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any screening interview before an immigration officer due to alleged health reasons.

12.By a Notice of Decision dated 2 September 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds other than torture risk including 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 found no substantial grounds for believing that his claimed risk of harm upon his return to Pakistan is real and foreseeable due to low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any adverse interest of the Pakistani authorities in the Applicant given the fact that he was able to leave and return to Pakistan without problem, and that reliable and objective Country of Origin Information (“COI”) show that reforms have been on-going in relation to police efficiencies as well as the blasphemy law to lower the perceived risk of harm to the Applicant upon his return to Pakistan, and that reasonable internal relocation alternatives are also available in Pakistan with a large population of 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Islamabad or Lahore where it would be difficult if not impossible for anyone to locate him.

14.On 17 July 2017 the Director on his own initiative invited the Applicant to submit any 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 after receiving and considering the additional information and documents including relevant COI on prosecution/persecution for blasphemy in Pakistan from him through his lawyer from DLS, the Director by a Notice of Further Decision 17 November 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right of life under BOR 2 Risk being violated upon his return to Pakistan.

15.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 9 September 2016, and for which he attended an oral hearing on 17 September 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submission made on his behalf by his lawyer. On 28 December 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

16.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of fear of harm in Pakistan that caused him to flee his home country for China and Hong Kong, the credibility of which was further undermined by his failure to seek non-refoulement protection in China at all and almost 3 years after his arrival in Hong Kong, that he has since joined MFI and hence no further risk of harm from their members, and that while in Hong Kong he never received any further harm or threat from the Pakistani authorities or the Muslim community during all these years that any such risk which might occur upon his return to Pakistan was just speculative, that in the absence of any indication that the State of Pakistan was involved in any threats from the Muslims in public against him that state protection would be available to the Applicant as well as reasonable internal relocation that it would not be unreasonable or unduly harsh for him to move to other places in Pakistan without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

17.On 7 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator was insensitive in handling the issue raised of the unsatisfactory performance of the interpreter throughout the appeal hearing of the Applicant before the Board which is procedurally unfair with regard to the assessment of his claim;

(2)  That the Board was wrong to find the Applicant’s failure to raise his torture claim in 2000 in China or during his 3 years in Hong Kong as damaging this credibility without taking into account of his difficulty in obtaining information in support of his claim or the fact that he was living in fear with cut ties with the outside world;

(3)  That the Adjudicator made unreasonable and presumptuous remarks or observations about his bribing of the immigration officer in his home country or his previous return to his home country without incidents without any evidential basis or proper reliance on the relevant COI;

(4)  That the Adjudicator had erred in the decision in failing to consider any or sufficient COI with regard to the Applicant’s religious grounds due to his association with MFI which is perceived to be against the Islam law and hence should have considered the risk of him being persecuted and prosecuted for blasphemy in his home country which may be punishable by the death penalty;

(5)  That the Applicant was never given the hearing bundle for his appeal before the Board and was therefore unable to verify the content of the documents in the bundle, and when this issue was raised to the Adjudicator during the appeal hearing, the Adjudicator did not regard it as important thereby casting doubt on the fairness of the hearing; and

(6)  That the Adjudicator in dealing with the Applicant’s appeal as a rehearing of his claim had failed to consider all the evidence of his case and instead cherry picked those that he would take into account.

18.Most of these grounds of the Applicant are however just bare and vague assertions of his without any or relevant details or particulars as to how they would apply to his case, that his complaint about the documents in his hearing bundle not been interpreted to him prior to his appeal hearing before the Board is clearly untenable when the fact is that he was all along legally represented by DLS in his appeal, while any issue over the performance or ability of the interpreter used for his appeal hearing before the Board had been properly dealt with by the Adjudicator in the decision and is in my judgment equally vague and devoid of particulars that I do not find it or any of the other grounds reasonably arguable for his intended challenge, except for his complaint under Ground (4) that the Board failed to consider properly or sufficiently relevant COI with regard of the risk of persecution and prosecution for blasphemy due to his religious belief and association with ASI and/or MFI.

19.As noted above, the Board in its decision accepted the Applicant’s account as to his religious belief including his subsequent conversion to MFI in Hong Kong, and also properly identified the basis of his claim in paragraph 19 of its decision as follows:

“The Petitioner’s claim is based upon his fear that if he is to be returned to Pakistan, he would be harmed by the Pakistani authorities and Muslims because he was a follower of the Messiah Foundation International (“MFI”) and that was against the Islamic Law which could attract death penalty…”

20.The Board then set out the Applicant’s account of events that led to his such claim in details in paragraph 20, proceeded to question the credibility of his evidence as to his such account, and rejected his claim of fear of harm from the Pakistani authorities or the Muslim community for the following reasons:

“31. … the number and nature of the inconsistencies may be sufficiently serious as to undermine the reliability of the Petitioner’s evidence.

32. As he has been in Hong Kong for 12 years since 2006, some of his evidence in particular, the update situation in Pakistan is based on information related to him by others or through social media. While hearsay evidence is not, of itself, inadmissible, the weight which can be given to such evidence is, by its nature, greatly reduced. Hearsay evidence cannot prove the truth of the facts asserted by way of such evidence. Speculation can never support any aspect of the Petitioner’s case.

33. COI or country date is normally a critical means of ensuring a complete understanding of the relevant risks, especially in the Petitioner’s home area, and by putting the Petitioner’s evidence into context.

34. The Petitioner claims that he could not be safe anywhere in Pakistan. In fact, as revealed by the World Facebook of United States Central Intelligence Agency (https://www.cia.gov/liberary/publications/resources/the-world-facebook/geos/pk.html), the estimated population of Pakistan was around 200 million people. The country is spread across more than 796,000 square kilometers. He has many options for relocation in Pakistan and it would not be easy for those searching for him to locate him among such a large population and in such a large country.

35. The Petitioner’s Counsel confirmed in her written closing submissions that she was unable to locate any concrete COI showing that Goharians or MFI members were subject to attack or arrest by the Muslims or the Pakistani authorities. The COI submitted by the Petitioner so far only related to the killing of people in Lahore due to religious conflicts involving Sunni Muslims and the killings of Christians in Islamabad. The Petitioner’s submission that the situation of arbitrary killing in Pakistan was the same for other non-Islamic people such as the Goharians were mere assertion without any concrete evidence in support.

36. On the whole I do not find the Petitioner to be telling the truth. I find that his case about imminent risk or life risk was unbelievable in both his oral evidence and his written case. I accept as true his personal and family background, and his account of his religious belief (save for the alleged risk of harm) and the subsequent change thereof as claimed and that he might have encountered some problems with the MFI when he was a member of ASI. Whether he had been attacked by the MFI people was in doubt and, even if he had been, this became irrelevant as he had converted to MFI. All the other matters including the stated threats, detention by the police and difficulties encountered in the immigration control are not accepted. I do not believe that he was on the list of wanted persons either. There is no concrete evidence that lends any credence to the extraordinary suggestion that the police, other Government authorities or those against him would track him down so as to prosecute or harm him.”

21.While the Board was entitled to find, on the factual basis of the Applicant’s claim, that any risk of harm from MFI members against him as a ASI member is no longer relevant after his subsequent conversion to MFI in 2011 in Hong Kong, of which the Adjudicator accepted as true, but when it proceeded to state that there is no concrete evidence to lend any credence to the suggestion that the Pakistani government or authorities would pose any risk to the Applicant or to prosecute him as a MFI member for blasphemy, apparently on the basis that his Counsel was unable to locate any concrete COI to show that MFI members were indeed subject to attacks by the Muslims in general or arrests by the Pakistani authorities, notwithstanding the fact that the Director in his decision did find relevant COI which were available in the hearing bundle before the Board to have corroborated such claim of the Applicant (see [26.1] of the Director’s decision), and which the Board should have taken into account, and more relevantly to look into the latest situation in Pakistan as regard any further prosecution and/or persecution of MFI members since the Director’s assessments made some 2 years ago, as high standards of fairness would in my view certainly require the Board to do so in the circumstances of the Applicant’s case.

22.In Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, the Court of Final Appeal held that high standards of fairness require that all relevant matters be considered in the determination of a non-refoulement claim, as Li CJ explained as follows:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay [1987] 1 AC 514 at p.531E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

23.His Lordship then went on to elaborate what high standards of fairness would require:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary … (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.

52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled form 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 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 recognized 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.”

24.The fact that the Board found the Applicant to have been arrested by police twice in 2000 but was released shortly thereafter without being charged ([28](h) of the Board’s decision), and that he was never arrested when he later in 2006 reported the alleged threats from the MFI people and had encountered no difficulty passing through immigration during his various travels in and out of Pakistan between 2000 and 2005 ([28](i) of decision) to support its conclusion of no evidence that the Applicant upon his return to Pakistan would face any real risk of being prosecuted or persecuted by the authorities, it seems to me that the Board in fact missed the point that the Applicant was then not yet a MFI member when he was able to leave the country in 2006, but would be regarded as one upon his return to Pakistan, in which case there is clearly suggestion of the possibility of such a risk of prosecution or persecution for blasphemy, as the Director referred to various relevant in his decision at paragraph 26.1:

“According to you, the Pakistani police were corrupt and you were unable seek their assistance if you did not pay bribes. On the other hand, the majority of people in Pakistan are Muslim. There is a law in Pakistan to arrest or persecute anyone who disrespects the religion of Islam. Under the anti-Muslim law, the offenders are liable for prosecution which could result in custodial sentence. After coming to Hong Kong, you have changed to be a follower of MFI in 2011. You are an active member and have also been spreading the teachings of Riaz Ahmed Gohar Shahi in association with Younas and/or MFI, working for the unification of humanity. These activities are prohibited in Pakistan and your life will be endangered if you keep your religious or spiritual beliefs, you will be at risk for being charged for blasphemy or subject to torture and/or ill-treatment by the state and non-state agents including members of your family and community. Your said assertion has been considered in the context of objective COI. There is information which corroborates your said assertion:-

(i) The US Department of State Country Reports on Human Rights Practices for 2014 in respect of Pakistan (“USSD 2014 Report”) (Item 3 of Appendix) at Section 1(d) stated that “Police effectiveness varied by district, ranging from good to ineffective. Police committed human rights abuses or were susceptible to political pressure.”

(ii) The USSD 2015 report at Section 4 stated that “Corruption within the lower levels of police was common. An April 2014 report by Transparency International asserted that the major causes of corruption were lack of accountability and low salaries. Some police charged fees to register genuine complaints and accepted bribes for registering false complaints. Bribes to avoid charges were commonplace.” The same report at Section 1(d) also stated that “Police often failed to protect members of religious minorities-including Christians, Ahmadiyya Muslims, Shi’a Muslims, and Hindus-from attacks.”

(iii) The International Religious Freedom Report 2015 Pakistan (“IRF 2015 Report”) (Item 4 of Appendix) at Section II stated that “Observers stated individuals continued to initiate blasphemy complaints against neighbors, peers, or business associates to settle personal grievances or to intimidate vulnerable people. While the law required a senior police official to investigate any blasphemy charge before a complaint was filed, observers said the police did not uniformly follow this procedure.”

(iv) The IRF 2015 Report at Section II stated that “Legal observers continued to report lower courts often failed to adhere to basic evidentiary standards in blasphemy cases, which led to some convicted persons spending years in jail before higher courts overturned their convictions and ordered them free for lack of evidence. Lower courts reportedly conducted proceedings in an atmosphere of intimidation and generally refused to free defendants on bail or acquit them, observers said, for fear of reprisal and vigilantism. Legal observers reported judges and magistrates often delayed and continued trials indefinitely in an effort to avoid confrontation with, or violence from, groups labeled by the government as extremist.”

25.While the Director also found in the same decision of COI showing actions being taken by the Pakistani government to improve the human rights situation and/or to reform the blasphemy law, high standards of fairness would require the Board to conduct its own inquiry and to make its own findings as to such issues in its determination of the Applicant’s appeal some 2 years later after the Director’s decision, including the latest or current situation in Pakistan, but which it does not appear to have done so in its decision, nor did it seem to have taken into account or consideration any of those COI relied on by the Applicant in support of his BOR 2 Claim which the Director also referred to in his Further Decision regarding the risk of persecution for blasphemy in Pakistan in more recent times up to 2017 (see [13] of Director’s Further Decision), and which were clearly also available in the hearing bundle for the Applicant’s appeal before the Board.

26.Whilst it has not been raised by the Applicant in his proposed grounds for the challenge of the Board’s decision, it seems obvious to me that it would follow to be also reasonably arguable that without having made proper or sufficient inquiry as to the risk of the Applicant being prosecuted or prosecuted for blasphemy by the Pakistani authorities, the Board also erred in its finding that internal relocation would be available to the Applicant to negate such risk upon his return to Pakistan.

27.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 decision is reasonably arguable and meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

28.I therefore grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds (i) that the Board failed to consider properly or sufficiently all the relevant evidence including COI as to the Applicant’s claimed risk of prosecution/persecution for blasphemy by the Pakistani authorities and/or by the Muslim community for being a member or follower of MFI; and (ii) that as such the Board also erred in law to find that internal relocation would be available to the Applicant to negate such risk upon his return to Pakistan.

29.Accordingly, I direct that the Applicant shall file and issue the 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.

Dated the 7^th day of October 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