S v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2039/2020

[2023] HKCFI 2964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2039 of 2020

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 Applicant being present in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 9 October 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 10 July 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 May 2018 (the “Notice”).

2.The Applicant is legally represented. At the hearing, leave was granted to the Applicant to amend his Form 86 by setting out the perfected grounds of his leave application and to file further evidence.

3.The Applicant is a Pakistani national. He entered Hong Kong on 19 April 2011 and was refused permission to land. Thereupon, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on the same day. The Torture Claim was rejected by the Director on 20 October 2011. There was no appeal against that decision, which therefore became final and binding on the Applicant. Following the implementation of the Unified Screening Mechanism (“USM”), his claim was further assessed under the remaining three applicable grounds, ie Persecution Risk[1]; BOR 2 Risk[2] and BOR 3 Risk[3] grounds. By his Notice dated 23 May 2018, the Director rejected his claim. His appeal to the Board was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the questionnaire, supplemental claim form (“SCF”) prepared by him with legal assistance and the two records of his screening interview in the presence of his lawyer. In gist, he claims that upon his return to Pakistan, he would be harmed or killed by the family of his former girlfriend (Hina) for honour; falsely prosecuted for rape, tortured upon his arrest and while in police custody; tortured by Muslim inmates and prison guards during his remand pending trial and/or appeal; suffer unreasonably long period of remand pending legal process; and sentenced to death or imprisonment up to ten years upon conviction.

5.The Applicant, now aged 44, is a Pakistani and Christian by birth. He completed Primary Two studies and worked as a waiter, an odd job worker and an employee in a mobile phones store. He came to know a customer called Hina, who came from a powerful family and two of her three brothers were policemen. They developed a relationship and Hina became pregnant. When Hina’s family learned about her pregnancy in February 2011, her father, brothers, some respectable people in the area and a clergyman went to his home to look for him while he was at his shop. They beat up his younger brother to extract information for his whereabouts. They damaged some furniture and threatened to burn down his home. Having been alerted by his younger brother, the Applicant fled from his shop. As he was leaving, Hina’s family members arrived and, he believed, fired at him. The Applicant managed to escape unscathed. He moved from place to place in Pakistan until he left Pakistan for Mainland China in April 2011. Eventually, he arrived in Hong Kong on or about 19 April 2011.

The finding of the Board

6.The Applicant was legally represented before the Board. He elected not to testify but presented some documents, including country of origin information (“COI”) about honour killing in Pakistan, a police report concerning his repeated rapes of Hina, warrant for his arrest, some letters from the churches in Hong Kong and Lahore about his participation in religious activities and his suspected rape case; and a certificate from his advocate in Pakistan certifying, inter alia: “[t]hat as [the Applicant] committed rape with a Muslim girl Hina who became pregnant … as Mst Hina under threat of her murder informed her parents and brothers that [the Applicant] has committed rape with her.”

7.The Board assessed his claim on the basis of the case as he asserted. It found the major problem which the Applicant faced is a personal dispute with Hina’s family for making her pregnant. There was nothing about the religious difference between the Applicant and Hina. There was no oral or documentary evidence showing that he was discriminated on account of his religion. It found that the Applicant’s fear of persecution was not on account of his religion or any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Convention” and “Convention reasons” as appropriate). It found on the basis of authoritative and credible COI that despite there are problems about corruption and ineffectiveness in the Pakistani police force, adequate state protection is available and there was no ground based on well-founded fear for a Convention reason not to avail himself of that protection. Hence, the Board came to the conclusion that the Applicant is not entitled to protection under the Persecution Risk ground.

8.The Applicant’s claim under BOR 2 Risk ground is founded on his fear of torture by the police upon his arrest, ill-treatment by the police and Muslim inmates during the long remand pending legal proceedings and the death sentence if convicted of rape. The Board found that even if the Applicant will be arrested upon his refoulement, there is no evidence that he will be tortured by the police. It considered the Applicant’s COI about police brutality alone not sufficient to show that he will be personally at risk of such ill-treatment. Having considered and quoted 15 different COIs, it was satisfied that the Pakistani government strives hard to deal with police brutality, abuse and maladministration by the authorities on which the Applicant’s fears are built and could not be said to be acquiescing in the impermissible acts or de facto permitting them. The Applicant’s life will not be at risk by reason of his arrest and detention, whether by the police, prison officers or inmates because there are avenues for complaint against police misconduct and adequate state protection is available.

9.On the basis of the Pakistan Penal Code, the Board found that death penalty is applicable only to aggravated cases of rape and the case against the Applicant is not such a case. Besides, according to the COI, the courts in Pakistan are extremely reluctant to pass a death sentence in the absence of a judicial confession. Hence, the Board found even if the Applicant is convicted of rape, it is highly unlikely that he will be sentenced to death. For these reasons, the Board found the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated, if refouled.

10.In relation to the Applicant’s claim under BOR 3 Risk ground, the Board found he had never suffered any mental or physical injury and that the nature and extent of injuries occasioned by Hina’s family’s attempt to catch him did not attain a minimum level of severity. On that basis, it found the Applicant had failed to show that he would be at risk of such injury upon his return. For the same reasons as stated in Paragraphs 7 and 8, the Board found that state protection to cover his risk of harm from Hina’s family and from that arising from his possible detention during police and prison custody is available. Hence, the Board found that the Applicant had failed to show he will face genuine and substantial risk of being subjected to ill-treatment, if refouled to Pakistan.

11.For all these reasons, the Board found the Applicant failed to prove his entitlement to non-refoulement protection under any of the three remaining grounds under the USM and dismissed his appeal against the Director’s Further Notice.

The legal principles applicable to judicial review

12.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

13.The Applicant advanced the following four grounds of application for judicial review:

(1)  misdirection in law on the standard of proof under BOR 3 and risk of BOR 3 violation upon refoulement;

(2)  failure to appropriately consider risk of harm because of the Applicant’s identity profile;

(3)  failure to consider relevant evidence and relevant COI; and

(4)  failure to assess risk of harm faced by the Applicant on a cumulative basis and his identity profile.

Ground (1) – Misdirection in law

14.This ground is directed at Paragraph 86 of the Decision in which the Board said “no documentary evidence was submitted by the [Applicant] to substantiate his claims on mental injury.” Mr Yeon, counsel for the Applicant argues that the test laid down in Ubamaka Edward Wilson v Secretary for Security[5] is that (i) the ill-treatment which the Applicant would face if refouled attains “a minimum level of severity” and (ii) the Applicant faces a “genuine and substantial risk” of being subjected to such ill-treatment. He submits that nowhere in the Ubamaka test sets out that corroborative evidence is a pre-requisite for any consideration of risk of harm under BOR 3. The words “genuine and substantial” merely describe the risk any evidence must be able to show; such evidence may include COI. This Court has no disagreement with the legal proposition advanced by Mr Yeon.

15.In its discussion of the legal principles applicable to BOR 3 Risks in Paragraphs 16 to 21 of the Decision, the Board also referred to the Ubamaka test in the terms as quoted by Mr Yeon. It never mentioned the need for corroboration. It analysed the Applicant’s claim under BOR 3 Risk in Paragraphs 84 to 91. In Paragraph 84, it reminded itself (i) that the involvement of a public official is not required for the act to amount to a breach; (ii) the protection under BOR 3 is absolute and non-derogable; and (iii) a very high threshold of proof is required. In Paragraph 85, it referred to availability of state protection as discussed in the preceding section. In Paragraph 86, it made the statement now complained of. In Paragraph 87, it observed that the Applicant never suffered any injury. The Board then referred to some other matters.

16.Read in this context, what the Board was saying in Paragraph 86 was no more than to point to the obvious fact that there was no documentary evidence about mental injury just as it did in Paragraph 87 in pointing out the fact that the Applicant’s case is that he has never suffered any injury. The Board never said it was necessary for the Applicant to prove actual harm or injuries suffered or that such injuries are supported by documentary evidence. It is of course common sense that the absence of actual present harm is some evidence which reflects a lower risk of future harm. The statement complained of was probably the Board’s response to the Applicant’s counsel’s submission about “possible severe mental torture” likely to be suffered by the Applicant as a result of long remands pending police inquiry and legal proceedings. It must also be appreciated that unlike physical injuries, there are no visible signs of mental injury and that documentary evidence in the form of medical certificate would assist the Applicant. I think the Board has no misunderstanding about the law. There is no question that the Board had misdirected itself on the law or taken irrelevant matters into account.

17.Next, Mr Yeon complains that despite there were submissions supported by COI before the Board about police brutality, discrimination and prison conditions in Pakistan, these COI were not considered at all in the Board’s Decision. In particular, the prison conditions are so poor that imprisonment may possibly result in conditions or practices which amount to a breach of BOR 2 and BOR 3.

18.The Board referred to no less than 15 COI which show on the one hand the seriousness of police corruption, appalling prison conditions, police brutality, violence to Christian minorities (collectively, the “unfavourable COI” which support the Applicant’s case); and on the other practical actions taken by the government to combat corruption and the achievements made; improvements in police professionalism; modernisation of the police; monitoring of police conduct; improvements in prison conditions; introduction of modern prison management; provision of avenues for complaint against police and the administration for their excesses, maladministration and misconduct; setting up of the office of the Ombudsman; improvements in protection to citizens; improvements in protecting minorities from discrimination; and availability of judicial redress for various forms of human rights violations (collectively, the “favourable COI” which contradict the Applicant’s case).

19.In Paragraph 53 of the Decision, the Board expressly accepted favourable COI including news reports about these improvements and achievements made. While about half of the COI are directed at corruption such as the arrests of senior police officers, the former prime minister and the supreme leader of the Pakistani Muslim League (Nawaz) for corruption, they show the government’s determination in changing the fundamental culture of its most important law enforcement agency. The Board quoted instances where the police rescued a Christian teenager accused of blasphemy from a vigilante mob in Alipur Chatha, Punjab; and arrest of police officers for beating a Christian teenage to death. These COI are directed at the Applicant’s concern about police brutality and discrimination against Christian minorities. It is reasonable to assume that the similar state protection is available against abuse by prison officers and Muslim inmates against Christian inmates. The Board also quoted COI about improvement in prison conditions, such as construction of prison academies, focussing on modern prison management techniques that promote human rights and counter violent extremism, modern computerized database that enables prison officers to more safely, securely, and accurately track prisoners and separate high-threat prisoners from petty offenders and vulnerable groups in the overcrowded prisons. All these measures precisely address the Applicant’s concern about bully and discrimination by Muslim majorities against Christian minorities in prison and abuses and misconduct by prison officers against their inmates, whether of Muslim or Christian faith. This is a particularly recent COI reported in 2020, whereas those referred to by the Applicant showing adverse conditions are dated two or three years back. These more recent improvements must have overtaken the adverse situation reported two or three years ago.

20.The Court accepts counsel’s criticism about the Board’s failure in explaining how it resolved the conflicting COI or why it prefer some to some others. From the Board’s express acceptance in Paragraph 53 of the favourable COI about improvements and the more specific reference to the COI in the paragraphs which followed and which address the Applicant’s various concerns, the reasons of the Board’s preference is manifestly obvious. The acceptance or non-acceptance of a COI and the weight to be given to a COI is a finding of fact which is within the realm of the Board to choose, which the court in a judicial review may not interfere save for errors of law, procedural unfairness or irrationality. This Court cannot detect any error of law in the Board’s decision in this respect. It is satisfied, despite the minor blemish mentioned above, that the Board had taken a balanced view and fair approach and considered all available COI fairly. The reason for its preference is manifestly obvious and rational.

21.Mr Yeon submits it is another misdirection of the law for the Board to assume that just because the Applicant was not arrested when he departed Pakistan in 2011 that he would not be arrested if refouled. This criticism is obviously directed at Paragraph 81 of the Decision in which the Board said:

“ The [First Information Report] was filed on 16 March 2011. The [Applicant] left Pakistan on or about 19 April 2011. He was able to pass through the immigration control checkpoint [without][6] difficulty. This shows that he has not committed any crime in Pakistan or his crime committed is not serious.”

22.This Court accepts that the Board’s conclusion is problematic. First, in coming to that conclusion, the Board had not considered the two warrants of arrest issued after the Applicant had left Pakistan. Second, a charge of rape cannot in any context be considered as ‘not serious’, particularly as a rape committed under aggravating circumstances attracts death sentence or ten years’ imprisonment. But, an error as it may be, the Board did not suggest that the Applicant will not be arrested and therefore safe to return to Pakistan. In fact, all the discussion in that section from Paragraph 73 to 83 proceeded on the basis that the Applicant would be arrested. It was in that context that the Board found on the totality of the evidence, including the COI which it accepted, the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 and BOR 3 Risk being violated. That error has no impact on the Board’s Decision.

23.There is no substance in this ground of application.

Ground (2) – The Applicant’s identity profile

24.The essence of this ground is that the Board failed to appropriately consider the risk of harm in the context of the Applicant’s identity profile of a Christian and that of Hina in her identity profile as a Muslim and against the backdrop of discrimination against Christian minorities. In other words, the risk is not one arising as a result of a man making a woman pregnant outside of wedlock; but a Christian making a Muslim pregnant outside of wedlock against the backdrop of discrimination against Christian minorities in Pakistan. There is no dispute that the Applicant is a Christian, that Hina is a Muslim from a Muslim family, that she was made pregnant by the Applicant, and that Hina’s family, particularly her brothers, are pursuing the Applicant. Hence, taking into account the Applicant’s identity profile, Mr Yeon argues that the Applicant’s case prima facie falls within one if not both of the following groups under the Refugees Convention: (i) religion group and (ii) membership of a particular social group; and it is wrong for the Board to categorise it as a claim concerning only private dispute. He also argues that the Board erred in finding that there was no oral or documentary evidence that the Applicant was discriminated.

25.It is true that the Board had not expressly discussed the extent of the risk of harm against the Applicant’s identity profile. But I do not think by any reading of the Decision could it be said that the Board was unaware or had not considered the identity profile of the Applicant and Hina and the discriminatory background. Against the general atmosphere or culture of discrimination against Christian minorities, the risk from Hina’s family must be high. That per se does not entitle the Applicant to non-refoulement protection under Persecution Risk ground. He must prove, among other things, persecution for a Convention reason and unwillingness to seek state protection for a Convention reason. Even accepting Mr Yeon’s submission that the Applicant’s case falls within either or both the religion and social group reasons (against the Board’s express finding in Paragraph 48 of the Decision), the Applicant still has to prove persecution. The Board’s finding of fact are:

(1)  the Applicant had never encountered religious problem with anyone in his community before 2009 (Paragraph 46 of the Decision);

(2)  the Applicant had adduced no oral or documentary evidence that he was discriminated on account of his religion (Paragraph 46 of the Decision);

(3)  the Applicant’s problem arose from a personal dispute with Hina’s family for making her pregnant (Paragraph 47 of the Decision); and

(4)  adequate state protection is available (Paragraph 70 of the Decision).

26.On item (1), the Applicant had not given any evidence that he suffered discrimination from the Muslims in his community for being a Christian. When asked during the screening interview if he had any difficulties practising his religion, his answer was that women Christians going to church were teased by Muslim youths and the shops around the church made loud noise to disturb the church ceremony. That was the extent of discrimination in his neighbourhood or community. It was just a mild form of social discrimination which did not attain the minimum level of severity.

27.On item (2), there is no dispute that the Applicant had adduced no oral or documentary of discrimination. There was some evidence before the Board about discrimination based on religion reported in COI, such as the demolition of the home of a Christian family in a Muslim neighbourhood; a seven-year old Christian girl being kidnapped and assaulted by a Muslim, but she was rescued by local villagers (who were possibly also Muslims) with the kidnapper arrested; a hundred Christian families were denied of food aid during COVID-19 crisis; an article about discrimination generally from International Christian Concern. These COI were obviously given little weight as they were not related to pregnancy outside of wedlock, let alone one caused by a Christian on a Muslim. The Board is right to find there was no evidence that the Applicant was discriminated on account of his religion in this context.

28.Mr Yeon submits the distinction drawn by the Board was artificial because the act of being a Christian making a Muslim girl pregnant is socially unacceptable and the risks of physical harm have not been questioned. I respectfully differ. Given the discriminatory atmosphere, the act of being a Christian making a Muslim girl pregnant outside of wedlock is likely to be socially unacceptable. But there is indeed no evidence of the nature and extent of risk that socially unacceptable behaviour would bring. There was some evidence of the Applicant’s and his friend’s belief that the risk is high, but neither of them are experts on this cultural or religious behaviour. Their beliefs remain subjective and speculative. Certainly the pregnancy will create a sense of shame in the family of the pregnant girl. It will cause the relatives and neighbours of the family to look down on the family or despise or hate the man who caused the pregnancy. It may provoke retaliation from the family in the form of physical harm or even to kill in the case of honour killing. To that extent, it is a private matter between the Applicant and Hina’s family. There is no evidence that such an act is so socially unacceptable that any neighbour or relative of the family or any Muslim with knowledge of what had happened would feel a justification or an obligation to punish the Applicant by harming him or taking his life. There is no COI to support the existence of such a cultural norm or behaviour.

29.Even in the case of honour killing, which is the Applicant’s case put at the highest, it is a private matter for the family. Honour killing is the killing of a member of the family, usually a female, for the purpose of restoring the honour of the family which that member has tarnished. The honour of the family may be tarnished by the daughter refusing to marry a man chosen by the family or eloping with another or having sexual relationship outside of wedlock. It may even be tarnished by a daughter who fell victim to a rape. It should be noted that it is essentially the disobedience to the parents’ wish that brings about the shame and the honour killing, not the difference in religion or the pregnancy. The daughter will be killed whether she was made pregnant or whether she eloped with a Muslim man. It is accepted as a matter of logic that pregnancy and difference in religion may aggravate the shame and provoke the killing. The person to carry out the killing is usually the father or a sibling of that family member, not any neighbour or more distant relative or anyone who feels the pregnancy an affront to their cultural or religious value. This is because the act which causes the shame or the pregnancy in this sort of case is a private matter for the family. The shame is not anything that troubles a neighbour or a distant family member, though they may look at the pregnancy as a shame or disgrace for that family and at the man who caused the pregnancy as despicable. They will certainly not be bothered to kill the woman who got pregnant or the man who made her pregnant. Even with the kind of discrimination in Pakistan, there is no evidence to suggest that the Applicant’s case is one that any Muslim who knows about the case and happens to come across the Applicant will feel duty bound or so provoked as to take his life. The Board could not have erred in finding that the problem between the Applicant and Hina’s family is a personal dispute.

30.As for Item (4), there are unfavourable COI showing violence on the Christian minorities by the Muslim majorities and unwillingness in the police providing assistance. However, there are favourable COI showing police readiness to protect Christians against police brutality and violence from Muslims. As mentioned above, whether on balance state protection is available is a finding of fact by the Board, which the Court may not intervene.

31.To prove Persecution Risk, a claimant has to prove he is outside the country of his nationality and, owing to a well-founded fear of being persecuted for a Convention reason, is unable or, owing to such fear, unwilling to avail himself of the protection of that country. What amounts to persecution depends on the circumstances of each case and the ordinary dictionary meaning of the word has been adopted. Persecution must involve some serious violations of human rights and serious or intolerable harm of a minimum level of severity practised on the claimant usually by state authorities or sections of the population (the populace) who do not respect the laws of the country concerned. In this regard, the United Nations High Commissioner for Refugees (“UNHCR”) refers to “a populace”, which does not mean merely one or a handful of individuals who threaten or assault a claimant: see UNCHR Handbook[7], HLR v France[8] and R v SSHD ex parte Bagdanavicius[9]. Where the persecution is practised by a non-state actor, ie a populace, the claimant must show not only will he suffer persecution, but also that the state, which is expected to take reasonable measures to make the necessary protection available, is incapable of according him appropriate protection: see R v Secretary of State for the Home Department (Respondent)[10].

32.Therefore, it is not enough for the Applicant to prove the risk of harm only, he has to prove that the risk arose out of persecution on account of a Convention reason and his inability or unwillingness to seek state protection for a Convention reason. Even accepting Mr Yeon’s submission that the Applicant’s case falls within the religious or social group category and that the Board is taken to have accepted that his life is at risk, he still has to prove persecution is practised by the Pakistani government or a populace. Hina’s family is the obvious persecutor, but it is not a state actor and does not represent the Pakistani government; nor could a handful of her family members come within the meaning of ‘the populace’. In that light, the risk of harm from Hina’s family lacks the public element to make it a persecution risk within the meaning of Persecution Risk ground under the USM, let alone whether it is on account of a Convention reasons and whether owing to fear for a Convention reason the Applicant is unwilling to avail himself of the state protection available. The Board could not have erred in finding that the Applicant had failed to show that his fear of harm from Hina’s family is well-founded and is entitled to protection under the Persecution Risk ground.

33.Government involvement is not required in a claim under BOR 3 Risk ground. However, primarily in view of its finding on availability of state protection, the Board found the Applicant failed to show he would face genuine and substantial risk of being subjected to such ill-treatment, if refouled.

Ground (3) - Failure to consider relevant COI

34.Under this ground, Mr Yeon complains that the Board failed to consider relevant COI put before the Board showing that there exist circumstances where Pakistani Christians face discriminatory treatment when compared to a Pakistani Muslim or a Pakistani with no religious affiliation. The COI is about inequality in the distribution of welfare benefits and police preference in protecting Muslims not Christians. The former could have no relevance or application to the issue in question of a Christian man making a Muslim woman pregnant. The latter may have some relevance in the context of the degree of protection a Pakistani Christian may receive from the police or the state against private individuals or against the police themselves while in police custody or from the prison officers or other Muslim inmates while in prison custody. Mr Yeon referred to the Country Information Report Pakistan published by the Australian government in 2019 which commented that Christians are the most economically vulnerable group in Pakistan and face significant social prejudice and class discrimination. It assessed that Christians face a moderate risk of societal violence and sectarian violence. It observed that police have provided additional security to major churches during religious services and to some Christian enclaves but reported some claims that police have, on occasion, not responded adequately to attacks on Christians and often failed to protect religious minorities, including Christians. The COI is about the general situation in Pakistan. The situation is unsatisfactory and on occasions, police response is not adequate. However, some protection is available. The COI does not go that far as to support a claim that reasonable state protection is not available. Indeed, as discussed in Ground (2), protection is available even against police brutality; and modernisation in prison management and facilities, including tracking capability, protecting inmates from violence by co-inmates and equally from misconduct by prison officers.

35.The Applicant’s claim about discrimination and lack of protection is speculative. As explained in Paragraphs 17 to 20, the weight to be given to conflicting COI is a finding of fact exclusively within the realm of the Board which this Court may not intervene save for errors of law, procedural unfairness or irrationality. The Court could find no such vitiating elements in the Decision in this respect.

Ground (4) – Failure to assess the risk of harm on a cumulative basis and the Applicant’s identity profile

36.This ground is basically a repetition of the above three grounds. Except in respect of a new argument about turning prosecution into persecution, the Applicant’s submissions and the Court’s conclusion will not be repeated. The new argument is that according to the Applicant, his sexual relationship with Hina were always consensual, the Board should have considered whether the prosecution for rape would in this particular case be used as a vehicle of persecution and that the Board had failed to consider the possibility that the Applicant’s Christian faith may expose him to discrimination from the police and/or Hina’s family that would have deprived him of the necessary fair treatment.

37.The issues before the Board were the Applicant’s Persecution Risk and BOR 3 Risk of being pursued by Hina’s family for making her pregnant; his BOR 2 Risk of having a death sentence being passed on him; his BOR 3 Risk arising from the ill-treatment from the police officers, prison officers and Muslim prison inmates during the long remand pending trial and the long term sentence; and his being deprived of state protection because of his Christian faith. The Board assessed his risks at the highest as the Applicant put it, ie on the basis that he would be convicted of rape, if refouled. For the purpose of assessing his risks under these three grounds, whether the relationship is consensual or otherwise is irrelevant. The Applicant’s case is so obvious that the Board could have no misunderstanding that it is his case that he was framed for raping Hina. It has never been suggested to the Board that that fact had any bearing on the decision to be made by the Board. At the highest, the Board would consider the prosecution with the calculated result of bringing about a death sentence or ten years’ imprisonment with all the possible ill-treatments while the Applicant would be in police or prison custody is an act of persecution. That was actually the very basis on which the Board assessed the Applicant’s entitlement to protection under the three applicable grounds. Indeed, it is difficult to see what difference the assessment would be had the Board considered the discrepancy.

Discussion and conclusion

38.Having rigorously examined the Director’s Further Notice, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three remaining applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claim is founded on his fear of harm or fear of being killed by Hina’s family for having made her pregnant; and his fear of being sentenced to death; and in the alternative his fear of ill-treatment from the police during the long remands pending trial and from prison officers and Muslim inmates while serving his long term sentence. The Decision of the Board was based on the Applicant’s case as he asserted. The Applicant could have no reason to complain about these finding of fact by the Board. Applying the legal principles applicable to the three applicable grounds, the Board found there was no factual basis to support his claims for non-refoulement protection under any of the grounds. The Decision is utterly without fault. The Court could detect no errors of law in the Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court is satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

39.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated 16^th day of November 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