Ali Wajid Alias Wajrd Ali Alias Waqas Mohammad v. Director of Immigration

HCAL 954/2022

[2023] HKCFI 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 954 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

(1)  Leave be granted to the applicant to apply for judicial review of the Director’s Decision;

(2)  The applicant shall issue the originating summons within 14 days after this order in accordance with Order 53, rule 5(5) of the RHC; and

(3)  Costs of this application be in the cause of the proceedings.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 June 2022 of the Director of Immigration (the “Director’s Decision”), which refused his subsequent claim of HCAL 1826 of 2018 (the “previous claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (the “Ordinance”).

2.The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since, from the procedural history of the case as shown below, the applicant may abuse the legal process.

3.The applicant was represented by Mr Shaphan Marwan, Counsel on the instructions of Messrs. Daly & Associates.

4.Having considered the Director’s Decision and legal submissions of Counsel, for the reasons given below, I decided that leave should be given to the applicant to apply for judicial review of the Director’s Decision. As the matter may be further argued before the Court, my reasons will be brief.

The applicant

5.The applicant is a national of Pakistan. He had been previously sentenced to imprisonment in Hong Kong and repatriated to Pakistan for two times, under different identities. When he came to Hong Kong for the third time, he again was convicted of some offences and sentenced to imprisonment. After serving his sentence, he lodged a torture claim which was subsequently withdrawn. He claimed that he had solved his problem in Pakistan and departed Hong Kong on 8 March 2011.[1]

6.The applicant came to Hong Kong for the fourth time in 2016 and surrendered to the Immigration Department on 24 June 2016 under the identity of “Wajid Ali”. He lodged a non-refoulement claim on 3 August 2016. He claimed that if he is to be returned to Pakistan he would be harmed or killed by Chaudhry Abid Raza (“Chaudhry”) who was from the Pakistan Muslim League (N) (“PMLN”) and a member of the National Assembly in Gujrat.[2]

7.The Director refused his non-refoulement claim and his appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) was dismissed by the Board.

8.He filed Form 86 on 16 September 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by this Court on 10 July 2020.

9.He took the matter further to the Court of Appeal and to the Court of Final Appeal, which, by its order dated 21 January 2022, dismissed his application for leave to appeal against the Court of Appeal’s decision.

10.By letter of 22 February 2022, he applied to the Director for making a subsequent claim for non-refoulement protection. He was legally represented by the duty lawyer under the Duty Lawyers Scheme. The duty lawyer submitted legal submissions and documents on his behalf to the immigration officer for his subsequent claim application.

The subsequent claim application

11.He submitted to the immigration officer Further Information dated 21 April 2022 in support of his application. In paragraph 2, he submitted:

“There is a complete change of circumstances from my old case (RBCZ 13291/16). I no longer rely on my problem with CHAUDHRY RAZA.”[3]

12.The applicant relied upon the facts below in support of his change of circumstances[4].

(1)  He was born in the province of Punjab to a Sunni Muslim family, and he had been a Muslim since birth. Pakistanis a Muslim country, and the applicant was taught from a young age that religious conversion was prohibited in Islam and that apostate would be killed.

(2)  In around 2017, the applicant met and fell in love with Ms Tiu (now his wife). Their courtship began after they happened to strike up a conversation outside the MTR in Hung Hom. They eventually began cohabiting, and despite having different religions (Ms Tiu is a Christian), they were engaged in 2018. The applicant’s father in Pakistan would not accept his marriage to a Christian. The applicant and Ms Tiu were married in Hong Kong on 2 March 2019.

(3)  Although the applicant spent time at church and learned about Christianity from his wife, he did not initially wish to convert. In fact, he wanted to persuade his wife to convert to Islam. That changed, however, shortly after his wife began attending a new church in August 2021. While attending her new church in about October 2021, he suddenly “had a strong feeling that I should convert to Christianity”. He has been a practicing Christian since then, attending church events and rituals. He was baptized on 24 April 2022.

(4)  He discussed his conversion with his brother in October 2021. He was warned that he had brought shame to his family, and that he would be killed in the name of honour if he returned to Pakistan.

(5)  His political claim was raised before he met his wife and long before his conversion to Christianity. Accordingly, the religious risk he now faces as a convert formed no part of the political claim, nor was it dealt with in his previous claim by the Director or the Board.

The Director’s Decision

13.The Director rejected the applicant’s application on the grounds below[5].

(1)  It is accepted that there is a significant change in the circumstances since his previous claim was finally determined. It is not considered that the change, when taken together with other materials submitted, would give a realistic prospect of success to his subsequent application.

(2)  It is solely his speculation without any cogent evidence to support his belief that his father, his family members, the state militant group and the community have the real intention to cause harm or even kill him due to his conversion to Christianity.

(3)  Even if the bare assertion about the new threats will materialize, the problem he has with his father and family members is purely a private dispute within his home area.

(4)  His claimed fear of possible harm from the state, militant groups and the wider community because of his conversion to Christianity is solely based on his mere speculation with no facts or evidence to substantiate.

(5)  In his previous claim, the Director and the Board had found that internal relocation is a viable alternative, which is also applicable to him as a Christian convert since Christians are not uncommonly found in different parts of Pakistan.

(6)  His mere speculation about the fear of being harmed or even killed by the state, militant groups, and the wider community against converting to Christianity is too far-fetched.

(7)  Considering Christianity is being the third most widely practiced religion in Pakistan amounting to around 1.2% of the total population of Pakistan, it is therefore quite implausible, without any cogent evidence adduced by him, apart from his bare assertion and speculation that he will be personally or specifically targeted by the state, militant groups and the wider community if he is to be returned to Pakistan for converting to Christianity.

(8)  His duty lawyer’s submissions and documentary materials on the Country of Origin Information (“COI”) are general country information related to issues such as honour killing, blasphemy, apostasy, Christians and Christians converts, and others, none of which is related to him personally and they do not show, whether directly or indirectly, that he will be subjected to any risk of harm.

(9)  The applicant’s duty lawyer had raised articles 2, 3, 15 and 23 of the Hong Kong Bill of Rights Ordinance (“HKBORO”) in support of his application. BOR 2 and BOR 3 had been considered. BOR 15 is not supported by any authority that it can give rise to non-refoulement obligation on the part of the expelling states (or territories). BOR 23 is not within section 5(2) ( c) of the HKBORO. As such, it is not accepted that there is any non-refoulement obligation arising from BOR 23 since it is not considered under section 5(2)( c) of the HKBORO as non-derogable rights under the HKBORO.

Grounds of review

14.The applicant has raised 4 grounds for review:

(1)  Irrationality/Unreasonableness – the Director failed to properly evaluate the applicant as an apostate (“the Apostate Issue”).

(2)  Failure to consider COI and relevant information or make inquiries.

(3)  Failure to give reasons/irrational conclusion.

(4)  Considering irrelevant maters/irrationality.

DISCUSSION

15.Counsel submitted that the Apostate Issue was directly raised by the Applicant in his Further Information and the Written Submissions. For example:

“12. It is clear from Mr. Ali’s own materials and the relevant COI that the risk to him and other Christian converts is real and very high. Pakistan is an Islamic country with an over 90% Sunni Muslim population. Conversion to other religions is considered “apostasy” and blasphemy. It is a strict taboo and there is overwhelming evidence of infliction of serious harm and killing of apostates. His claim is clearly more than “reasonably arguable”.

(emphasis supplied)[6]

16.The applicant’s main arguments are that the Director failed to consider that it is reasonably arguable that the risk faced by the applicant as an apostate in Pakistan could amount to persecution based on religion under the Convention.[7] The COI provided by the applicant demonstrates the risk in Pakistan to apostates from Islam, by the state, non-state actors, families and society in general – apostasy is treated as a form of blasphemy, which is a criminal offence in Pakistan.[8] COI advised that the applicant would not and could not hide his conversion were he to reside anywhere in Pakistan. This is in part due to his obviously Muslim name. Further, his ID card and passport state his religion as Islam, and if known socially as a Christian, he would quickly be singled out as an apostate when he used them or if he attempted to change his religion on official documents.[9] The Director did not refer to the relevant COI or submissions adverse to his position on those issues, nor did he give reasons for rejecting them.[10]

17.The Court of Appeal in TK v Michael C Jenkins, Esq and Director of Immigration [2013] 1 HKC 526, Hon Cheung, CJHC, Stock and Fok JA, 21 November 2012 held:

“19. Secondly, who has the burden of proof? The burden of proof rests on the torture claimant to prove that there are substantial grounds for believing that he would be in danger of being subjected to torture: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.

29. Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be “personally at risk”. This is because the aim of the determination under the CAT is to establish “whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return”. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her circumstances. AS v Sweden, CAT/C/25/D/149/1999, UN Committee Against Torture (CAT), 15 February 2001, para 8.3….”

18.It seems that the applicant has failed to adduce additional grounds to show that he will be “personally at risk” as required by the Court of Appeal in support of his subsequent claim. The Director therefore said that his fears were speculative and not specific.

19.However, counsel for the applicant has now raised the issue that the COI provided by the applicant demonstrates the risk in Pakistan to apostates from Islam, by the state, non-state actors, families and society in general – apostasy is treated as a form of blasphemy, which is a criminal offence in Pakistan[11]. If this is the law in Pakistan, which is applicable to everyone in Pakistan, then the applicant has shown that he is personally at risk if he returns to Pakistan. In reality, he will be arrested at the moment he enters Pakistan. The Director has not explored this issue in the Director’s Decision. However, this appears to be inconsistent with the Director’s reference to COI that about 1.2 % of the population in Pakistan are Christians. This issue has to be cleared in any event.

20.On this issue, I had, before this hearing, raised it with counsel. I have put to counsel two questions, viz.

(1)  Has the applicant proved his personal risk if he is to be returned to Pakistan? and

(2)  If apostasy is treated as blasphemy, which is a criminal offence with death penalty, in Pakistan, how will the Pakistani government be dealing with this issue, given the fact that about 1.2% of the population in Pakistan are Christians and there should be many Pakistanis being subjected to this law?

21.At the hearing, counsel has not referred me to any evidence of the applicant’s personal risk. He referred me to the various COI, which show, with examples, that:

(1)   The Applicant had not only raised the threats of harm conveyed by his brother, but he had also provided several COI materials showing honour killings and attacks by family members against apostates in Pakistan;

(2)   The COI also showed that it was common for families to obtain a “fatwa” from a cleric calling for the convert to be killed;

(3)   Under the heading “State treatment of Christian converts”, the UKHO report states[12]:

2.5.32 There is no law against religious conversion but renouncing Islam (apostasy) is widely considered to be a form of blasphemy (see Legal context – Apostasy and Blasphemy).

2.5.33 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 Consequences of converting from Islam to Christianity).

2.5.34 In general, society is extremely hostile towards converts to Christianity. 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 (see Consequences of converting from Islam to Christianity).

[…]

2.5.36 In general, a person who is known or is likely to be known to have converted from Islam to Christianity and is open about their faith and conversion is likely to face societal discrimination and harassment that by its nature and repetition amounts to persecution. However, each case needs to be considered on its facts.”

22.Those COIs had been submitted to the Director by the applicant in his subsequent claim application. The Director has not given any reasons for not applying them to the applicant’s case or for rejecting them.

23.Counsel further submitted that in Pakistan, police will take action if it receives a first investigation report (“FIR”) from a complainant. Now that the applicant’s family have knowledge of his apostasy, any member may make a FIR to the police, the applicant will then be arrested by the police the moment he enters Pakistan.

24.This important issue involves both the facts and the law of Pakistan. In the Director’s Decision, this issue has not been canvassed, which is an error in law. The Director may have to clarify this issue by reference to the updated COI, expert opinions or clarification from the Pakistani government in order to ascertain whether the applicant may have state protection if he returns to Pakistan. Also, the applicant should be given the opportunity of having the issue to be further considered and explored by the Board under the unifying screening mechanism.

25.For the above reasons, I agree that the applicant has a realistic prospect of success in his judicial review application.

26.Since the applicant did not rely on the same facts for his previous claim in support of his subsequent claim, his subsequent claim is not an abuse of the court’s process. No RPO will be imposed for this application.

DISPOSITION

27.I shall make an order in terms as follows:

(1)  Leave be granted to the applicant to apply for judicial review of the Director’s Decision; the applicant shall issue the originating summons within 14 days after this order in accordance with Order 53, rule 5(5) of the RHC.

(2)  Costs of this application be in the cause of the proceedings.

Dated the 13^th day of January 2023

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