Ba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 915/2019 on BabelCite. This High Court CFI judgment was delivered on 16 May 2023.
1. The applicant applies for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) dismissing the applicant’s appeal against the Decision dated 18 November 2013 of the Director (“the Director’s Decision”), which refused the applicant’s claim for non-refoulement protection.
Cited by 2 cases · Cites 8 cases
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HCAL 915/2019 [2023] HKCFI 1276 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 915 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) dismissing the applicant’s appeal against the Decision dated 18 November 2013 of the Director (“the Director’s Decision”), which refused the applicant’s claim for non-refoulement protection. 2.The applicant was represented by Mr Jonathan Kwok, Counsel as instructed by Messrs. Daly & Associates, solicitors, assigned by the Director of Legal Aid. 3.The hearing was before the Court on 17 April 2023. 4.The applicant applied for leave to amend Form 86 as per the draft. The application will be dealt with at the end of this decision. The applicant 5.The applicant is a national of Pakistan. Prior to his last entry in Hong Kong on 9 October 1999, he had previously been to Hong Kong in 1993, 1996 and 1997. On all previous three occasions, he was arrested by the police and later deported back to the Pakistan. He last arrived in Hong Kong on the aforesaid date and had been overstayed since 27 October 1999. He was arrested by the police on 5 September 2008. On 15 September 2008, he raised a torture claim which was eventually rejected. On 3 May 2013, he lodged his non-refoulement claim. His claim was assessed on all applicable grounds other than that on torture risk[1]. The applicant based his claim on the fear that, if refouled, he would be harmed or killed by (i) Pakistani police; and (ii) attackers in the management committee of the Sunni mosque and other members of the community, including Cheema and Jatt. 6.The applicant’s claimed fear of harm originated from his conversion from Sunni Muslim to Ahmadi Muslim, under the influence of his mother. According to the applicant, Ahmadi Muslim was the minority in Pakistan and often targeted with discrimination and persecution. In this light, his father hid the fact that he and his mother were Ahmadi Muslim within the family. The first incident occurred in March or April 1993 when the applicant’s religion was first exposed to the community by a high ranked Islamic preacher. After the announcement of the applicant’s religion, he was taken to the Bambawala police station where he was assaulted, resulting in internal injuries. He claimed to be tortured by the police therein and was demanded to disclose the whereabouts of his Ahmadi group. As the applicant was beaten to a state which he drifted in and out of consciousness, he was taken by the police to a hospital. He then escaped out of the hospital with the assistance of his parents and hid in Lahore in the end. While he stayed in a mosque there, he saw one of his attackers on the street. He was told that his stay would endanger other worshippers. Thus, in around May 1993, the applicant left the mosque and went to Karachi. 7.One day in Spring 1993, while he returned home from work, he was informed by the passers-by that there was a bombing and many were injured or killed in this terrorist attack (the “1993 Karachi attack”). One the same date, he was visited by the police. He believed that someone complained to the police about him being an Ahmadi and his abscond from the Bambawala police station. The applicant was also attacked in the Karachi police station. The next day, he was escorted to Bambawala police station. In the transit, the applicant bribed the police officer and escaped. He then came to Hong Kong for the first time using his passport which identified himself as an Islam instead of Ahmadi. He stated that he did not disclose his faith for fear of potential problems. 8.After he was deported back to Pakistan on 28 May 1994, he stayed with his friend in Lahore. He learnt that there were several organizations, including the Pakistan People Party (“PPP) were publically against the Ahmadi faith. While he did not encounter problems, he lived under fear. In early 1996, he escaped to Hong Kong again. 9.On 14 September 1996, he was deported back again. He returned home in Mitran Wali this time and his return was found out by his previous attackers. Ten days after, he heard gunshots outside his house. The chaos was led by Cheema. The applicant managed to escape and hid in Gujranwala before coming to Hong Kong again. 10.After his third time being deported, in November or December 1998, the applicant and his family started to seek reconciliation with the committee members. But the proposed reconciliation was rejected. At the same period, the applicant’s father was approached by a rape victim’s family for help. The rapist was Jatt, Cheema’s cousin. To seek justice, the applicant’s father had been helping the victim’s family in filing the police report and also hold community meeting condemning the rapist. During the meeting, the applicant’s father was assaulted by Jatt. In defending his father, the applicant also joined the fight, which gave them another excuse to clash with the applicant. 11.The next day, Cheema and Jatt filed a false complaint against the applicant, accusing him of involving in the terrorist and illegal drug trafficking activities. On 5 February 1999, the applicant was again arrested by the Bambawala police. He was tortured therein. After his father bribed the police, he was released on the next day. However, in mid-March 1999, he was again arrested and tortured and he believed that it was due to false criminal cases. He was again released the next day after the bribery to the police. 12.On 21 March 1999, Jatt fired gunshots outside the applicant’s house, threatening to kill him. Later, there was a second attempt in reconciling with his enemies. The applicant’s apology was not accepted by them. On the other hand, it seemed to provoke the escalation of threats – there had been three or four occasions afterwards which Cheema and Jatt led people to fire gunshots and uttered threats against the applicant. 13.On 24 April 1999, Cheema crashed a school award ceremony where the applicant and his father attended. They started random shootings. The applicant and his father escaped and later reported to the police. The police clearly stated that they could not do anything as Cheema was influential. 14.On 21 June 1999, the applicant hid in a brick-making factory where his friend Khalid was working. One day, some men attacked the factory and one of the attackers killed Khalid, shouting slogan and claiming that he killed many Ahamadi already. The applicant escaped and fled to Lahore. Eventually, the applicant came to Hong Kong. 15.In late 1999 when he was in Hong Kong, he was informed by his parents that they moved to a new residence where the enemies could not find and bother them. On 19 December 2002, his father passed away but he dared not return to attend the funeral as he was told that the enemies were still looking for him. On 1 May 2010, his mother died. 16.The applicant further claimed that he had mental problems due to the extensive police torture and the pass of his friend. As an Ahmadi Muslim, his rights were forfeited and he would be prosecuted if returned. He could not return to Pakistan as he was publicly exposed as an Ahmadi Muslim and he had many previous encounters with the police officers. Details of the applicant’s claim are set out at paragraph 11 of the Notice of Decision dated 31 July 2017 by the Director (the “Director’s Decision”). The Director’s Decision 17.The Director considered the applicant’s claim in relation to the following risks:
18.Before the Director, the applicant submitted extensive documents in support of his claim, which were listed at paragraph 12 of the Director’s Decision. After perusing the documents, the Director listed out those that were relevant to the applicant’s claim at [14]-[23] and considered that the rest were general country of origin information (“COI”) that were not personally related to him and could not further advance his claim [24]. 19.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his previous conducts and matters stated in the information and materials he provided undermined his credibility [31]-[38]; (ii) the evidence was insufficient to support his claimed ill-treatments from his enemies upon his return [39]-[41]; (iii) the misbehaviors of individual police officers could not represent the Pakistani police as a whole and the COI showed that the government could offer protection to the civilians [42]-[51]; (iv) there were around four million Ahmadi Muslims in Pakistan and it had been more than 24 years since he was publicly exposed to be an Ahmadi [52]; (v) his concern about flooding problem was addressed by the government; and (vi) internal relocation was a viable option [54]-[59]. The Board’s Decision 20.The applicant appealed the Director’s Decision to the Board. The oral hearings for his appeal were conducted on 14 December 2018 and 19 December 2018, during which the applicant was legally represented with the assistance of an interpreter [67]. 21.At the beginning of the hearing on 14 December 2018, the applicant provided a recent medical report. His legal representative also informed the Board that they were unable to provide witnesses from the Ahmadi community and they attempted to contact the applicant’s friend, Baber, who had successfully obtained his UNHCR refugee status with an Ahmadi claim. Towards the end of the hearing on 19 December 2018, the applicant’s legal representative sought extension of time to obtain further evidence on the applicant’s Ahmadi faith, which was allowed by the Board [40]-[45]. Thereafter, the applicant’s legal representative submitted additional documents and written submissions [47]-[50]. In this premise, while the applicant still failed to produce response from the Ahmadi mosque in Lahore or the president of Ahmadi community in Hong Kong, the Board concluded that the applicant was given reasonable opportunity to present his case and there was no need for further adjournments for more evidence or responses [51]. 22.The Board examined the applicant’s claimed mental suffering against the medical documents he produced. It accepted that the applicant started having mental problems back in the 1990s and he was with medications in cure for his paranoid schizophrenia and he presented the relevant psychiatric symptoms. He was fit to attend and give evidence during the hearings [71] and his mental status was taken into account when assessing the credibility of his claims [52]-[64]. In summary, the applicant was provided with a reasonable opportunity to be heard [75]. 23.At the outset, the Board dealt with the applicant’s request to be medically examined. Having considered all the evidence, submissions and the particular circumstances of the present case, the Board refused to exercise its discretion to allow the request [76]-[84]. 24.The Board proceeded to consider the merits of his claim. It first summarized the applicant’s claim [85]. Guided by the relevant legal principles, it assessed the issue of credibility. The Board rejected the applicant’s claimed stateless status and assessed his claim against Pakistan as the risk state [92]. The Board probed into the applicant’s personal and family background and concluded that his evidence on this aspect vague and his oral evidence rehearsed [94]-[109]. 25.The Board also inquired the religion stated in his passport which he first obtained in 1993. In the applicant’s passport, it stated that his religion was “Islam”. However, the COI stated that, if the Ahmadiyya Muslim intended to obtain a passport, they had to sign a declaration denouncing their Ahmadi faith. Yet, the applicant said that he did not sign anything, which directly contradicted the COI and undermined his own evidence [110]-[119]. Further, the Board asked the applicant about his forged passports, bearing, inter alia, different names, identities, dates and places of birth. One of the passports listed his religion as “Ahmedi” [120]-[133]. The Board found that the applicant’s explanation and his legal representative’s submission were not satisfactory. Based on the applicant’s own evidence, his friend obtained the refugee status with an Ahmadi claim and people with Ahmadiyya faith could obtain passports as long as they declared in the passports. As a result, the purposes of the forged passports, namely the ones bearing the “Islam” as faith, were not for self-protection as claimed by the applicant. Rather, the Board found that it was for the applicant’s own purposes. The Board was of the view that these could not be satisfactorily explained by the applicant’s medical conditions and concluded that the applicant’s evidence on the forged passports undermined his credibility and his core claim as a genuine Ahmadi Muslim [134]-[143]. 26.The Board proceeded to consider the background and information of Ahmadi faith. It comprehensively summarized the information elicited from the COI [144]-[158]. It noticed that the converted Ahmadi Muslim would normally not reveal their conversions to anyone including their family members as they were likely to be killed within three days of their conversion [157]. The legal authority denoted that Ahmadi Muslims could not openly practice their religion without violating the Pakistani law and they could only practice in a restricted basis either in private or in a community. If the applicant was able to demonstrate that it was particularly important for his religious identity to practice and manifest his faith openly in Pakistan in defiance of Pakistani law, he would be in need of protection [158]. 27.As a result, in order to determine the applicant’s appeal, the Board was tasked to determine whether (i) the applicant was a genuine Ahmadi, and (ii) his intentions or his wishes as to this religion upon refoulement [158]. 28.First, the Board rejected the challenge from the applicant’s legal representative that the questions in relation to the Ahmadi religion posed to the applicant were technical or scholarly [160]-[165]. Having considered the evidence, the Board refused to accept that the applicant was an Ahmadi, or a convert or perceived as such [170] for the following reasons:
29.Assessing the entirety of his claim, evidence, submissions and the COI, the Board rejected the applicant’s claim as an Ahmadi Muslim as he was not able to show that he had genuinely and personally practiced the Ahmadi faith at all in Pakistan [316]. As a result, the Board refused to accept the applicant’s claimed past events [317]. In passing, the Board identified inconsistent evidence of the claimed past incidents which further undermined the credibility and reliability of his evidence. To conclude, the Board rejected the core aspects of the applicant’s claim and refused to believe that he was an Ahmadi Muslim. Thus, he was not of any adverse interest to the authorities or anyone in the Pakistan due to any religion, or political opinions [318]-[398]. 30.Further, the Board considered that mental health care was available in Pakistan as demonstrated in the applicant’s own evidence and thus it was not a basis for him to claim non-refoulement protection [400]. In addition, the applicant was able to travel in and out of Pakistan with the last time using his real identity without encountering any troubles [401]. As a result, the Board refused to accept that he would face any real or substantial risk of harm upon refoulement. 31.In light of the aforesaid findings, the Board rejected the applicant’s claim on the sole basis that his core claim as an Ahmadi Muslim was unsubstantiated. His appeal was therefore dismissed. Application for leave to apply for judicial review of the Board’s Decision 32.The applicant has filed Form 86 dated 3 April 2019 for leave to apply for judicial review of the Board’s Decision. The discussion below is based on the amended Form 86 as per the draft. 33.Counsel for the applicant has set out 4 grounds in support of this application in the amended Form 86.
DISCUSSION 34.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). 35.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 36.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
Ground 1: Error of law in relinquishing supervisory role 37.The applicant relies on the cases of Rahman Mohammad Arifar v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petitions Office [2018] HKCFI 2726 and BHS v Torture Claims Appeal Board [2021] HKCFI 3818, both cases were determined by this Court. The main complaints are that the Board, having its discretion under section 18(2) of Schedule 1A of the Ordinance, had relinquished its supervisory role and failed to give its reasons for re-hearing the whole case and it did not take the grounds of the Notices of Appeal filed by the applicant and did not deal with those grounds or it took the grounds out of context. Such relinquishment deprived the opportunity for the applicant to be treated with high standards of fairness. 38.The case of Rahman Mohammad Arifar must be understood in the proper context. The Court found against the decision of the Board in this case because the adjudicator was in error of law as it was under a misconceived understanding of the case of AM v The Director of Immigration, HCAL 102/2012 and made the following decisions:
39.This Court set out the powers of the Board under the Ordinance and the reasons for appropriate exercise of its power for saving costs and time, which remains the main theme of the Civil Justice Reform, applicable to all legal proceedings, including the proceedings in the Board. In Form CALL-1, the Court said:
40.The Board’s powers and discretion should not be restricted as it has the final decision in the determination of the facts of the case, overriding the Director’s decisions, only subject to judicial review by the court. See Re Kartini. 41.The case of BHS also elaborates the principles of “re-hearing” in the AM case. In the hearing, counsel acting for the applicant had the same misconception:
42.It is clear that the Board has a wider power than the court as it has the duty of supervision over the Director and the power of making investigation into the facts of the claim; such finding of the facts overrides the Director’s decisions. In this case, the Board has clearly considered the grounds of appeal and made its decision to re-hear the case wholesale. In my view, the Board was justified to do so, bearing in mind that the grounds of appeal before it, altogether 11 grounds as set out in paragraphs 89 and 90 of the Amended Form 86, all concerning the legal issues in the Director’s finding of the facts of the claim. The immigration officer acting on behalf of the Director, who made the finding of the facts, is not a legal practitioner. Where the applicant has raised such legal grounds against the immigration officer in the finding of the facts, the adjudicator, who being a legal practitioner herself, should be in a better position to address all those grounds by re-hearing the applicant’s evidence and make its decisions, instead of dealing with the legal issues raised by the applicant. This will save costs and time. Ultimately, the Board’s finding of the facts can override the Director’s decisions and the facts of the claim form the backbone of the applicant’s claim. 43.This ground fails. Ground 2: Undue reliance on the applicant’s religious knowledge 44.This concerns the Board’s finding as to whether it was satisfied that the applicant converted from Sunni Muslim to Ahmadi Muslim and therefore became the target of discrimination and persecution in Pakistan. This issue forms the factual basis in support of the applicant’s claim. The Board accepted if the applicant was able to demonstrate that it was particularly important for his religious identity to practice and manifest his faith openly in Pakistan in defiance of Pakistan law, he would be in need of protection [158]. The Board therefore frames the issues of investigation as to:
45.The applicant has no dispute with the above propositions. 46.The applicant complains that the Board’s questioning and its resulting analysis focused on whether the applicant would be able to provide correct answers corresponding to the country information; and looking at the Board’s Decision as a whole, the Board relied unduly on the applicant’s answers to its questions on religious knowledge to determine whether he was a ‘genuine’ Ahmadi. 47.As the applicant claimed himself to be an Ahmadi, there being no evidence for the Board to challenge his assertions, it is only reasonable for the Board to test his evidence to verify his assertions. There is nothing Wednesbury unreasonable about this approach. The question turns on the way the inquiry was conducted. 48.Mr Daly represented the applicant throughout the proceedings before the Board. At the hearing, Mr Daly put the Board on notice that he considered that the questions at the hearing were ‘technical’; he submitted ‘it is a slippery slope’ and devolved into the applicant’s scholarism in Ahmadi. Mr Daly also submitted that he was ‘not going to play arm-chair Ahmaid expert’ [161]. 49.The Board was aware of such comments or complaints at the beginning of the hearing. The Board said that the applicant was asked a wide range of questions about his claimed faith, including general and open questions about his and his family’s background, their religious attitude, the importance and significance of the Ahmadi religion for his life, his basic knowledge of the faith etc. and his post-arrival belief and practices in Hong Kong [160]. According to the Board’s Decision, Mr Daly was unable to set out, in his closing submissions, the ‘numerous’ questions, as he alleged, that focused on the applicant’s knowledge or went to his ‘scholarism’ in the hearing [161] - [162]. 50.The Board had considered the submissions by Mr Daly and reviewed the audio recording of the hearing and came to its conclusion that it did not focus on the applicant’s Ahmadi knowledge or devolved into his scholarism in Ahmadi [165]. 51.The Board was aware that a person’s knowledge of a religion may vary, depending a lot of factors as it said:
52.The applicant’s complaints that the Board has accorded unduly heavy weight on the applicant’s religious knowledge; assume that the applicant must be able to give theologically correct answers on the meaning of the bai’at; failed to consider the applicant’s personal nature of religious faith, and discounted the application’s ‘correct’ evidence on the Ahmadi faith are not accepted because the Board has made a comprehensive review of the applicant’s evidence before it. The Board assessed the applicant’ credibility on the following aspects:
53.I do not find any reasons to interfere with the Board’s findings on the facts above. This ground therefore fails. Ground 3: erroneous credibility assessment 54.The applicant has raised 7 issues. 55.Firstly, the applicant complains that the Board erred in relying upon the COI on Ahmadiyya teachings which prohibited women from marrying anyone outside of their faith, and further assumed that as the applicant’s mother was an Ahmadi by faith, she “would still need to follow the guidance from the Promised Messiah about marriage”. He further submits that this reasoning conflates a religion’s professed doctrines with evidence of fact. 56.However, the above argument misconceives the purpose of the Board’s cross-examination of the applicant on his understanding of Ahmadi, which the Board will test whether he is a genuine Ahmadi. 57.The Board relied upon the COI and explained to the applicant why Ahmadi restricted women’s marriage to the same faith. The applicant said he understood and he further said ‘there are thousands of interfaith marriage cases where the marriage took place before the laws were passed in Pakistan.’ [219] 58.The Board pointed out that the issue was not the passage of the law in 1974. The prohibition of interfaith marriage was, according to the COI, part of the Ahmadi faith between 1835-1908. The Board stated its purpose of the examination clearly in paragraph 219:
59.The Board has the discretion to give weight to the COI for its assessment of the applicant’s evidence. There is nothing amiss about this approach. 60.Secondly, the applicant complains that the Board’s finding that he had provided “contradictory evidence” as to whether he was an Ahmadi convert was based on an unfounded assumption. The applicant submits that his father was a Sunni Muslim and his mother, an Ahmadi Muslim. At the age of 10, he personally adopted the Ahmadi faith and that was his conception of a religious conversion. 61.The applicant’s argument above has, again, misconceived the Board’s finding. Where the applicant says that the Board’s finding was based on an unfounded assumption, the applicant has not stated what “assumption” was the Board based upon. The Board’s finding that the applicant had provided contradictory evidence is a finding of the fact, based upon the evidence given by the applicant to the immigration officer and before the Board at the hearing. According to the Board’s Decision, the applicant had given the following evidence on conversion of his faith:
62.The Board made its finding of the fact on this issue at paragraph 177 of the Board’s Decision:
63.There appears to be no reason to interfere with the Board’s discretion in its finding of the fact on the applicant’s credibility on this issue. 64.Thirdly, the applicant complains that the Board had resorted to gut feelings in rejecting his evidence on religious calling and describing his claim as ‘confused and vague’. 65.On this issue, the Board had set out what happened at the hearing in paragraphs 226-244. One has to understand why the Board had made such comments by going through the Board’s findings in relation to what had happened at the hearing. I shall set out the significant features below:
66.It is true that the Board had said the applicant did not give “an impression” that he has personally and genuinely entered the Ahmadiyya as claimed. Many of the comments are in fact the impression of the adjudicator in the course of the proceedings before her. However, the adjudicator was entitled to observe the applicant’s demeanours at the hearing when considering his evidence, and made her finding of the facts, including his credibility. The Court has no reason to interfere with her discretion in the assessment of the evidence before her. 67.Fourthly, the applicant complains that the Board’s finding of his evidence about his family background to be “vague, hesitant and lack specificity”, without giving weight to the applicant’s explanation and said that the applicant had rehearsed his evidence. 68.At paragraph 109 of the Board’s Decision, the Board said:
69.Viewed within the context of the overall evidence before the Board, I consider that this finding is within the province of the Board as stated by the Court of Appeal in Re Kartini, supra, and the Court should not interfere with the Board’s finding. 70.Fifthly, the applicant complains that the Board rejected his evidence on the practice of writing to the Khalifa (religious teacher) as “indirect” and “evasive” and that the Board was unreasonable not to accept his reason for not writing letter to Khalifa because he did not have a fixed place of abode. 71.The above issues can be found in the Board’s Decision:
72.Having considered the evidence, I consider that the Board was quite justified to form its opinions as it had done about the applicant’s responses to its questions. 73.Sixthly, the applicant complains that the Board evaluated his evidence on the claimed past incidents despite it had decided not to accept him as an Ahmadi and that it did not resolve important issues in his evidence; and further that it had adopted a “technical approach”, finally making its finding, based on his demeaour. 74.As I see it, the Board was attempting to explain why it decided not to accept the applicant as a genuine Ahmadi by reference to the past incidents. 75.Counsel for the applicant has pointed out that the Board found that there are 2 inconsistencies in the applicant’s account of the event: first, it was unclear when he was denounced during the prayer, or after the prayer; second, it was unclear whether he was in the general store when he heard the announcement, or he had heard it before going to the general store. 76.Where there are inconsistencies in the applicant’s evidence, the Board has a duty to clarify the inconsistencies, giving the applicant the opportunity of clarifying the inconsistencies. The Board had expressly told Mr Daly, the solicitor acting for the applicant its position [345] and invited Mr Daly to give specific example of questions or the way in which it is said to be confusing or of concern. Mr Daly was given 6 weeks to submit such specific examples in his closing submissions. Mr Daly did not make any submission on such specific examples in his closing submissions [346]. 77.In paragraph 348 of the Board’s Decision, the Board said,
78.As to the allegation that the Board did not resolve an important issue in the Applicant’s evidence - the Applicant appeared to have broken down the prayer session into multiple stages. This is a fact finding exercise within the province of the Board. The applicant was represented by Mr Daly. Such issues should have been canvassed and dealt with by Mr Daly before the Board. This is not the proper venue for fact finding and the Court will not interfere with the Board’s finding of the facts. 79.The submission that the Board was not justified to focus on particular details of the past incident in view of the fact that the incident happened almost 25 years before the hearing may sound restrictive of the Board’s power of investigation. It must be born in mind that the Board has, under the Ordinance, a duty of investigation into the facts of the claim and the Board has no evidence to rebut the applicant’s story. It has to test the applicant’s evidence by examination and cross-examination of the applicant’s evidence. Where the core issue is the disclosure of his Ahmadi faith by a high ranking mullah to the public, which, as according to the applicant, forms the origin of fear for his safely in Pakistan, the Board is duty-bound to make inquiry into the veracity of the applicant’s allegations. To say that the Board drew an adverse inference against the applicant based on his demeanour has ignored the objective evidence before the Board and, in my view, is an unfair comment. 80.Finally, the applicant complains that the Board was in breach of the rule in Brown v Dunn mentioned by the Court of Appeal in Re Masud MD [2021] HKCA 1449 at [31] - [36]. Counsel for the applicant in his submissions, has set out a list of issues of facts, which the Board should have alerted the applicant for response before it made its decisions. 81.The fundamental point to be noted for citing a case is the special circumstances of the case cited under which the decisions were made, otherwise the decisions will be misleading. 82.Firstly, in the cited case, the applicant was acting in person whereas in this case the applicant was represented by Mr Daly. Secondly, the applicant in the cited case had refused to answer questions put to him by the Board whereas in this case, the applicant had answered the Board’s questions and he was legally protected by Mr Daly. The following facts in the judgment should have been noted by counsel when he referred to this case:
83.In the cited case, the Court of Appeal did not set out the facts of the UK case it mentioned. It will be assumed that the factual background that the witness was not legally represented of the UK case is the same as the case before the Court of Appeal. This is apparent when the Court of Appeal explained why notice that the credibility on his evidence would be impeached should be given. At paragraph 32 of the judgment, the Court of Appeal held:
84.If the witness is represented by a lawyer, the cross-examination on his credibility must be obvious to his lawyer, who may address the issues by way of objections, re-examination or in his final submissions to the court. 85.Following the case of Re Masurd MD , the Court of Appeal in Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration [2022] HKCA 836 (13 June 2022), further elaborated the ruling of Re Masurd and held:
86.In any event, the fundamental nature of this case is different from the case of Re Masud MD because the applicant was legally represented before the Board and he had given evidence before the Board. The applicant therefore cannot complain that the Board’s credibility assessment departs from the established principles, and/or is flawed and irrational. Ground 4: unreasonable refusal of the applicant’s request for medical examination 87.The applicant submits that the Board’s failure to accede to a request for medical examination may amount to procedural unfairness and/or be in breach of the duty of high standards of fairness owed to the applicant. 88.This issue was brought up by Mr Daly on behalf of the applicant before the Board. The reasons in support of the application, as summarized by counsel in the amended Form 86:
89.The Board had considered the above reasons. Having considered the above submissions and other materials before it, it decided to hold the hearing without obtaining another medical report from another doctor. The Board had given strong and comprehensive reasons in support of its decision [78] - [84]. It is unnecessary to set out the full reasons here. Suffice it to say, the Board held:
90.I consider that the Board’s reasons are valid in support of its decision. 91.Also, the Court of Appeal in Afsar Khan v Torture Claims Appeal Board / Non-refoulement Claims Petition Office [2019] HKCA 751, Hon Yuen & Au JJA, 10 July 2019, held:
92.There is no evidence to show that the absence of a further medical report adopting the Istanbul Protocol has cause prejudice to the applicant. 93.In the circumstances, the Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. 94.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. DISPOSITION 95.I shall make an Order in terms as follows:
Dated the 16th day of May 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 [1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 [2] (1894) 6 R 67 (HL) (28 Nov 1893)
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