Nazir Qaisar v. Torture Claims Appeal Board

HCAL 632/2019

[2024] HKCFI 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 632 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:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Pakistan who entered Hong Kong illegally in March 2015 and was arrested by police on 17 March 2015.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by the Pakistani police who had falsely accused him of committing a murder and/or by the family of the murder victim in revenge.  He was subsequently released on recognizance pending the determination of his claim.

Factual Backgrounds

2.The Applicant was born and raised in Village Udoowal Kalan, Tehsil Kharian, District Gujrat, Pakistan.  After receiving 10 years of education and like his siblings he worked as a farmer in his home village, got married and raised a family with 2 children.

3.In order to earn more income, the Applicant in 2007 became a policeman after receiving 6 months of training, and stationed in Dinga Police Station in Tehsil Kharian, District Gujrat about 40 kilometers from his home village.

4.Corruption was a serious problem in Pakistan and existed in all levels of the government departments especially in the police force where police officers were often offered bribes to release arrested persons, but the Applicant was one of the few policemen known to have refused to take bribes. 

5.On 10 August 2014 the Applicant as usual reported to duty at the local police station around 9 am, and the task on that day was for him and his team to arrest a dangerous criminal named Sheedi who was from a family of gangsters but also had many enemies.

6.In the same afternoon between 4 and 5 pm, the Station Head Officer (“SHO”) had received a bribe to arranged for Sheedi to be killed during or after the arrest, for which the SHO then distributed the bribe money to the Applicant’s team with instruction to kill Sheedi and to make it appeared that he was killed by crossfire, but the Applicant refused to accept the bribe or to participate in the killing, and so he was assigned by the SHO to work in a nearby police check post where other members of his team as well as the SHO were also present.

7.In the same evening Sheedi was arrested.  At around 10 to 10:30 pm the Applicant received a phone call from his wife that she was seriously sick, and upon his request the Applicant was released by the SHO to the check post to go home to tend to his wife, but by then his wife had already been admitted to the Government Civil Hospital Aziz Bhati in Gujrat City, and so the Applicant packed some clothing and left for the hospital between 1:30  and 2 am.

8.At around 3 to 4 am, the Applicant was informed by his family that a team of police had come to his home with a warrant for his arrest for the murder of Sheedi, but when they failed to find him at home, they then brought his brother back to the police station and beat and tortured him with a leather strap and wooden sticks to try to force him to reveal the Applicant’s whereabouts.

9.The Applicant suspected that earlier after he had left the police check post, the SHO and other members of his team killed Sheedi and then falsely blamed him for the murder and issued the warrant for his arrest, and so he left the hospital and went into hiding in a friend’s place in some remote tribal area in Peshawar City, during which he also heard that the gangster family of Sheedi were looking to kill him in revenge for Sheedi’s death.           

10.With both the police and Sheedi’s family going after him, and as he feared that even if he managed to avoid being killed by either that he would be tortured by the police after his arrest, nor would he receive a fair trial by the court given the rampant corruptions in Pakistan, the Applicant therefore departed the country on 14 November 2014 for China, and from there he later sneaked into Hong Kong some 4 months later, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s Decision             

11.By a Notice of Decision dated 6 May 2016 and a Notice of Further Decision dated 24 October 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

12.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim but doubted the credibility of his claim of being framed by the police for the murder of Sheedi due to his inconsistent account of the time sequence of crucial events as to when he was offered the bribe by the SHO, when he was sent to the nearby police check post after refusing the bribe, as well as the time of the arrest and murder of Sheedi, and for which the Applicant was also unable to provide any reasonable explanation or clarification that it was not accepted that he had been offered bribe by his SHO to kill Sheedi or that he had been assigned to work in the nearby police check point where Sheedi was killed that his claim of being framed for Sheedi’s murder and was therefore pursued by the police was not established, that the absence of any threats or past ill-treatment by the Sheedi’s family directly against him is indicative of the unlikelihood of any future risk of harm from them upon his return to Pakistan, that in any event any such risk if real will be lowered or negated by the availability of state protection to the Applicant, while reliable and objective Country of Origin Information (“COI”) also show that reasonable internal relocation alternatives are available in Pakistan that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for the Sheedi’s family to locate him.

First Decision of Board

13.On 18 May 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 10 July 2017 with his lawyer from DLS before the Board during which he gave oral evidence and also answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 3 August 2017 his appeal was dismissed by the Board as unreliable and incredible including his assertion of being a police officer in Pakistan prior to his plight and rejected his claims of fear of harm from the Pakistani authorities or Sheedi’s family and concluded that he had failed to establish his non-refoulement claim under any of the applicable grounds, and that the Board also confirmed the Director’s decisions.

HCAL 546/2017   

14.On 24 August 2017 the Applicant filed his Form 86 under HCAL 546/2017 for leave to apply for judicial review of the Board’s decision, and on 8 February 2018 Deputy High Court Judge Woodcock granted leave for him to do so, whereupon a joint application  of the Applicant and the Director as the interested party was subsequently filed on 4 May 2018, and in pursuance thereof this Court on 24 May 2018 quashed the Board’s decision, and directed that the Applicant’s claim be remitted to the Board for fresh determination by a different Adjudicator.

15.Accordingly the Applicant on 29 November 2018 together with his lawyer from DLS attended a hearing before the second Adjudicator for the Board which was also attended by government counsel for the Director, during which the Applicant declined to give oral evidence after confirming his reliance of the material and information previously provided to the Director and available to the Board in the hearing bundle, but as will be apparent later in this decision below that he did answer one question from the Board through his lawyer, as well as with submissions made by his lawyer on his behalf to the Board.

Second Decision of Board      

16.By a Decision dated 21 February 2019 the Board again rejected his non-refoulement clam and dismissed his appeal upon finding serious inconsistencies and discrepancies between his NCF and his subsequent answers given to the Immigration Department during his screening interview but which he failed to explain or clarify when he elected not to give oral evidence during his appeal hearing before the Board that the core elements of his claim could not be tested and which casted grave doubt on the truthfulness of his claim, that there was no reliable or documentary evidence of him being pursued by the Pakistani police or authorities for a crime as serious as murder and that he was able to leave the country with his passport through the official channel without any problem, that he however did not do so immediately until some 3 weeks after obtaining his visa for China where he also remained for more than 4 months despite the risk of an extradition treaty existed between Pakistan and China without explanation were not consistent with the behaviour of someone in need of surrogate protection by another State, and that his failure to raise his non-refoulement claim upon first arriving in Hong Kong until his subsequent arrest by the police further undermined the credibility of his claim that it concluded that there are no substantial grounds for believing that the Applicant would be under a real and personal risk of being harmed, tortured or killed by the police or authorities or the Sheedi’s family upon his return to Pakistan that his claim for non-refoulement protection failed on all the applicable grounds. 

Leave Application for Judicial Review      

17.On 5 March 2019 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, and while he no longer has legal representation from DLS, he appeared to have assistance in putting forth various grounds for his intended challenge in his supporting affirmation which can be summarized as follows:

(1)  That the Adjudicator erred in his assessment and determination of the credibility of the Applicant’s account of events occurred in his home country which led to him fleeing Pakistan for non-refoulement protection;

(2)  That the Adjudicator erred in law in relying on the Applicant’s election not to give oral evidence at his appeal hearing before the Board as the main basis for rejecting the credibility of his claim;

(3)  That the Adjudicator failed to provide adequate reasons for rejecting the Applicant’s claim;

(4)  That the Adjudicator erred in law in rejecting the credibility of the Applicant’s claim on the basis that the Applicant failed to explain why the SHO would offer a bribe to someone like him to commit a murder when the Applicant was known to have never accepted any bribe in the past; and

(5)  That the Adjudicator’s failure to give the benefit of the doubt to the Applicant’s claim was irrational or Wednesbury unreasonable.

18.Given that the Board rejected the Applicant’s claim primarily on its adverse finding as to the credibility of his account of events on 10 August 2014 when Sheedi was killed, and that for which he subsequently failed to explain the various inconsistencies and discrepancies said to be found in his such account at the rehearing of his appeal before the second Adjudicator, I propose to deal with all these grounds together as one composite challenge of the Adjudicator’s assessment of the credibility of his claim.

Applicable Principles for Credibility Assessment  

19.First it would be relevant to set out the proper approach and/or guidance for determining the credibility of non-refoulement claims, starting with those from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-edited 1992), which provides that the applicant has the burden of proof, but the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner, and in some cases it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even if such independent research may not however always be successful and there may be statements that are not susceptible of proof, but if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: See paras 195 and 196 of the Handbook.

20.As emphasized in para 202 of the Handbook, since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not be influenced by the personal consideration that the applicant may be an “underserving case”.

21.In adopting such guidance of the UNHCR Handbook, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR, 187 at 206 made the following observations on the application of high standards of fairness in the consideration of these claims:

“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 from 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. For example, in the present case, the respondent’s letter of 5 March 1999 stated that “proof documents” were available but could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.

55. Thirdly, an understanding of country conditions at the time 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.”

22.It is also critical to note that the two-tier screening process under our Unified Screening Mechanism (“USM”) in place since March 2014 for the screening of non-refoulement claims on all applicable grounds is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or to strive with zeal to identify indicators of lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and the decision taken objectively and impartially, as it is emphasized by the UNHCR Report “Beyond Proof – Credibility Assessment in EU Asylum Systems”, May 2013, on the importance of Article 8(2)(a) of the Asylum Procedures Directive (“APD”) at [37]:

“Article 8(2)(a) of APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background or circumstances.”

23.The UNHCR Report also notes that the challenges of the credibility assessment in the asylum procedure on decision-making are often compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for international protection is examined, the amount of time that has elapsed between these facts and screening of the case, the psychology of the applicant and the interactions between him and the decision-maker are all relevant to the credibility assessment, as it elaborated at p31:

“The psychology of the applicant, the interviewer and, if different, the decision-maker, as well as the interactions between these persons are all relevant to the credibility assessment. A wide-range factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions and behaviour, values, attitudes, perceptions of and responses to risk, and about how a truthful account should be presented. When providing statements, applicants are required to recall relevant past and present facts to substantiate their application. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

Interviewers and decision-makers, therefore, in addition to knowledge of the relevant law and of the country of origin, need to be aware of and to understand these factors that impact on the credibility assessment and to be informed by the substantial body of empirical scientific evidence that exists in these fields.”

24.As the UNHCR Report noted, multi-lingual and cross-cultural communication in asylum procedure increases scope for misunderstandings and errors, and though interpreters may help to overcome the linguistic barriers, decision-makers’ lack of familiarity with the cultural backgrounds of applicants as well as social modes or gender norms of their societies or origin may still pose a challenge to assessment of credibility, while speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings (at p41).

25.Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him, as started in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015 at s 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

26.In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected , and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant.

27.In that case Keene LJ also identified the dangers of a decision-maker being influenced by his own views on what is or is not plausible in approaching the issue of credibility, and that it is important that the decision-maker should seek to view a claimant’s account of events in the context of the conditions in the country from which the claimant came, as His Lordship observed at [25]:

“There seems to me to be very little dispute between the parties as to the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an Appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the Appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Lloyd broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker.  Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford.  No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable men would have done.’”

28.Such views and approach have been adopted by the Hong Kong Courts, and in ST v Betty Kwan [2014] 4 HKC 419, [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing a non-refoulement protection claim, as Cheung CJHC (as he then was) elaborated at [43]:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a mean of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

29.Henceforth, in assessing and making credibility finding in such claims, all the evidence, both oral and documentary, must be considered and assessed, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.  In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: See Section 2.2.1 and 2.1.2 of the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004.

30.Moreover, the application of the principle of the benefit of the doubt allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance, Asylum Instructions: Considering Asylum Claims and Assessing Credibility, February 2012 at [4.3.4]:

“[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision-maker must come to a clear finding as to whether the fact can be ascertained or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

31.In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision maker should consider whether to apply the principle of the benefit of the doubt: See UNHCR Report at p50.

32.Lastly, high standards of fairness must be observed by the decision-maker in all aspect of the assessment and determination of applications of this nature, as Li CJ elaborated in Prabakar as follows:

“43. The question in this appeal concerns the standard 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 the examination of all aspects relating to the decision in question, including its context and its nature and subject 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.”   

33.In the present case, it seems clear that unlike the previous adjudicator, this second Adjudicator did not take any issue over the Applicant’s claim of being a police officer for some 7 years in his home village prior to his departure of Pakistan, but rejected his non-refoulement claim essentially on finding inconsistencies relating to what were considered crucial parts of the Applicant’s account of events occurred within the day of his duty when Sheedi was killed by the SHO and his police team between what were stated in his NCF and his subsequent answers given in his screening interview before the Director, and which the Adjudicator then found him to have failed to explain or clarify at the appeal hearing when he declined to give oral evidence, of which I shall next proceed to scrutinize as follows.

Inconsistencies between NCF and Screening Interview     

34.It is relevant to first identify what exactly the Board considered to be inconsistencies in the Applicant’s account between his NCF and his answers given at the subsequent screening interview before an immigration officer as stated in the decision as follows:

“SHO Offered bribe to Kill Sheedi (NCF version)

15. The events set out in the following paragraphs (up to paragraph 22) (the “NCF” version”) were mainly extracted from the NCF of the Appellant which he submitted to the Immigration department on 27 January 2016.

16. The Appellant said he and the police team that he belonged to were assigned on this particular day to search for and arrest Sheedi. In the course of this fateful day, his team was summoned by his SHO and informed of the secret plot to kill Sheedi. This was because the SHO had been bribed on this day to kill Sheedi and stage it like he was killed in a cross fire with the police. At the screening interview at the Immigration Department on 26 February 2016, he was asked to state the time when his SHO first informed him of the secret plot to kill Sheedi. The Appellant said he did not remember.

17. In any event, the Appellant recalled that sometime on 10 August 2014, his SHO distributed bribe money to him and all members of his team. He instructed them to kill Sheedi and stage his death to make it look like he was killed in a cross fire. According to the Appellant, this was the first time bribe money was distributed to his whole team by the SHO himself in front of the whole team. In the past, this had never happened as bribe money was always distributed to his team through SHO’s assistant but not in front of the Appellant.

18. Each member of his team except the Appellant accepted the bribe of 200,000 Pakistani Rupees. The Appellant told his SHO that he would never accept a bribe, “especially to kill someone”. His SHO did not say anything and just let him leave. He was then assigned by the SHO to work in a nearby police check point IN THE AFTERNOON.

19. He would say later in the screening interview at the Immigration Department that this was around 4-5pm when he got to the check post. Near the conclusion of his screening interview, he also retracted the timing stated in his NCF about the time when he was assigned by his SHO to work in a nearby police check post where he said:-

     “All of the police constables of my team had accepted the bribe.  However, I rejected Ghulam Akbar’s offer and told him that I would never accept a bribe, especially to kill someone.  At that time, Ghulam Akbar did not say anything and he just let me leave. After that, I was assigned by Ghulam Akbar to work in a nearby police check post in the afternoon.”

20. His request to the Immigration Department was that the words “in the afternoon” should read “after that”. While he did not explain why the change was necessary, it is quite apparent that his intention was to maintain the argument that he was only assigned to the check post in the evening which would in turn support what he said during the screening interview that the bribe was offered to him late in the evening on 10 August 2014.

21. It is important to note that according to the NCF version of events, the bribe was offered to him (and members of his police team) before the Appellant was assigned to work in the check post and before the arrest of Sheedi which he claimed took place around 7-9pm in the evening on that day.

22. In the Appellant’s NCF and his screening interview by the Immigration Department, the Appellant claimed that he knew that bribes were frequently offered to his team privately through the SHO’s assistant. However, he said he had not accepted any bribe and he was the only one among his colleagues to have refused to be bribed. This was known to other members of his team and must also have been known to the SHO and his assistant.

SHO Offered bribe to Kill Sheedi (Screening Interview version according to the interview conducted at the Immigration department on 26 February 2016)

23. Near the conclusion of the screening interview by the Immigration Department, the Appellant was offered a chance to make any further addition, deletion or amendment to the record of interview after he requested changes mentioned in paragraphs 19 and 20 above. The Appellant then offered the following version of events, which formed part of the record of interview and which will be referred to as the “Screening Interview version” in this decision:-

     “I want to explain my work on that day started with the other colleagues at 9am.  On the same day about 4-5pm, the SHO called us for a short briefing regarding Sheedi’s case at the checkpost which last about half an hour. Then we continue to search Sheedi as before. Then we finally successfully arrested him at between 7-9pm and took him to the checkpost. SHO arrived at the checkpost at 9:30pm. Then around 9:45pm, the SHO called all of us and offered bribe to kill Sheedi that night secretly. I refused to accept the money and the SHO was very upset.  After that., the SHO assigned me to guard Sheedi after wearing the police uniform.  About 10:30pm I received phone call from my wife saying that she was sick.  I asked SHO allowed me to go home as emergency and he allowed me to leave.  However, I was surprised when police raid my house to arrest me.  At that time I came to know I was kept on duty even though I was allowed to leave to take care of my wife.”

24. There are a number of inconsistencies when one compares the NCF version of events to the Screening Interview version. In the NCF version, the SHO offered bribe to every member of the Appellant’s team to kill Sheedi before the Appellant was assigned to the check post and after the Appellant had rejected the bribe. This would also mean that SHO offered bribe to the Appellant at a location which was other than the check post. It might possibly be inside the police station where the SHO was based although it is unclear from the evidence before the Board. In the Screening Interview version, the Appellant claimed that the bribe was offered by the SHO shortly after he got to the check post at 9:30pm.

25. Perhaps the most glaring inconsistency between the two versions is that in the NCF version, the bribe was offered prior to the arrest of Sheedi. This is apparent from the statement that he gave in the NCF as he was only assigned to the check post after he rejected the bribe. He confirmed in the screening interview that he got to the check post at 4-5pm.

26. In the Screening Interview version, the Appellant claimed that Sheedi was arrested between 7-9pm in the evening, this would mean that Sheedi was arrested after the Appellant was assigned to work in the check post. According to what the Appellant said in the passage quoted in paragraph 23 above, the SHO offered bribe to the Appellant and his team after he arrived at the check post at 9:30pm.

27. At the scheduled hearing, although the Appellant declined to give oral evidence, the Board nonetheless asked his counsel about the timing when the SHO offered bribe to the Appellant because of the obvious inconsistency between the information provided in the NCF and what he said in the screening interview. After taking instructions from the Appellant, counsel said his claimant confirmed that the SHO offered a bribe to the Appellant after Sheedi was arrested. However, he did not explain, nor was the Board able to ascertain from him, the reason why he had given two inconsistent versions of the same events.

28. Another notable inconsistency between the two versions of events is the purported reaction of the SHO when the bribe was rejected by the Appellant.  In the NCF version, the Appellant alleged that the SHO did not say anything and let the Appellant leave. He then assigned the Appellant to work in the check post.  In the Screening Interview version, the SHO’s purported reaction was very different.  According to this version, the bribe was offered to the Appellant and rejected by him at the check post.  The SHO became very upset and assigned to guard Sheedi who had already been arrested at that time.  He also instructed the Appellant to put on his police uniform.”             

35.The Board proceeded to make the following assessments of such inconsistencies in the Applicant’s evidence that required his clarification or explanation:

“Consideration of the Appellant’s Evidence

Inconsistencies Relating to Crucial Parts of his Evidence and his Failure to Explain the Inconsistencies

41. The Appellant’s evidence suffers from serious inconsistencies as has already been pointed out earlier in this decision (see paragraphs 15-28 above). These inconsistencies were manifested in the statement included in his NCF and in answers that he gave to the Immigration department during the screening interview. The Appellant was not able to provide any satisfactory reasons to explain the inconsistencies. Instead he resorted to amending his statement in the NCF when the inconsistencies were too obvious to ignore.

42. The Appellant was given an opportunity to clarify and establish his case to the Board during an oral hearing. It would have been a good opportunity for him to provide the Board with reasonable explanations as to the inconsistencies and to clarify such inconsistencies. It would also be useful for him to remove any doubt that the Board may have in regard to his story of escape which will be further elaborated on in this decision (see paragraphs 58-76 below).

43. Unfortunately, the Appellant had elected not to give oral evidence despite being given the opportunity. He was reminded of the nature and purpose of the hearing at the beginning of the hearing. He was also reminded that he had a duty to establish his claim. The Board understood through his counsel that the said duty of the Appellant to establish the claim was explained to him and he still opted to remain silent during the hearing and elected to ask the Board to decide his case solely on the basis of the papers, including submissions from his counsel, and other documentary evidence such as COI material, that are placed before the Board.

44. The unwillingness of the Appellant to give oral evidence is particular unhelpful in a de novo hearing of an inquisitorial nature such as this one. The versions of events described in the NCF and the screening interview require the Appellant’s further elaborations because they raised a number of issues and questions that would have to be clarified. His failure to give oral evidence also means that the core elements of the Appellant’s claim cannot be tested.

45. The Board noted that the Appellant gave oral evidence during the first appeal before the TCAB (the “first appeal”) in which he was not legally represented. The resulting decision of the first appeal which rejected his appeal/petition was subsequently quashed after his successful application for leave to apply for judicial review of the decision in question. The fact that he gave oral evidence in the first appeal before the TCAB does not alter the fact that the ultimate burden of establishing his case still rests with the Appellant. The Board cannot and will not make reference to what the Appellant might have said in the first hearing or the resulting decision as that resulting decision was quashed by the Court of First Instance. The present hearing is a de novo hearing into his appeal/petition before a differently constituted Board. Hence it is not open to the Appellant to argue that he had already discharged his duty to assist the Board or the burden of establishing his claim by giving evidence in the first appeal.

36.The Board then discussed why such inconsistencies and discrepancies were considered as serious and significant that casted grave doubt on the truthfulness of the Applicant’s claim in the absence of any clarifications or explanations from him at the appeal hearing before the Board:

“The Inconsistencies

47. There are a number of discrepancies which required further explanation and elaborations by the Appellant. The most significant of which is the sequence of events that include that time when the SHO offered a bribe to the Appellant, the place where the bribe was offered, as well as the reactions of the SHO and his subsequent instructions to the Appellant.

When did the SHO offered to bribe the Appellant?

48. In the Screening Interview version (see paragraphs 23-28 above), which the Appellant confirmed through his counsel at the hearing, the SHO offered a bribe to everyone in the Appellant’s team, including the Appellant after the SHO got to the check post at 9:30pm. The Appellant was already at the check post after his team had arrested Sheedi between 7-9 pm. The NCF version (see paragraphs 15-22) however put the time of the SHO offering the bribe to the Appellant much earlier than 9:30pm. In fact, according to the NCF version, the bribe was offered to the Appellant by the SHO himself before the arrest of Sheedi. If he had not amended the NCF as it was submitted, the bribe would have been offered to him before the afternoon of that day (see paragraphs 19-20 and 23-24 above). In any event, the alteration that the Appellant sought to make to the NCF does not resolve the inconsistency i.e. in the NCF version, the bribe was offered before Sheedi’s arrest whereas in the Screening Interview version, the bribe was offered shortly after Sheedi’s arrest in the evening.

49. The reactions and instructions given by the SHO when his offer of a bribe to the Appellant was rejected were also starkly different when the two versions are compared. In the NCF version, the SHO did not say anything and then instructed the Appellant to work in the check post in the afternoon (or “after that” – as amended by the Appellant subsequently). This also suggested that the bribe was offered at a place other than the check post in question. In the Screening Interview version, the SHO offered a bribe to the Appellant at the check post and he became very upset after his bribe was rejected by the Appellant. He then instructed the Appellant to put on his uniform and guard Sheedi.

50. The Board regards these inconsistencies as serious and significant which cast grave doubt on the truthfulness of the Appellant as these relate to the core events of his story.  The Appellant’s claim is solely based on the series of events that happened on one day and one would have expected that the Appellant should be able to provide a coherent and consistent account of what happened.  The difference and conflicting accounts given on the crucial events do not bode well for the credibility of his story and would require further elaborations by the Appellant to explain the gaping inconsistencies.” 

37.Henceforth the first relevant question to ask is: Are there indeed such stark differences between the 2 versions that they amount to be serious or gaping inconsistencies as found by the Board, or that they indeed go to the core events of his account that should cast grave doubt on the credibility of his claim?

38.It would be relevant to first bear in mind that the Applicant’s NCF was prepared and completed by his lawyer in writing based on his instructions given through an interpreter, albeit subsequently confirmed by the Applicant to be true and accurate when he signed it, while his answers given to the Director during his later screening interview also through an interpreter were made directly in his own words and to form an integral part of all the material and information in support of his claim at the offer of the Director to “make any further addition, deletion or amendment to the record of interview” at the end of his screening interview, as it was noted by the Adjudicator in [23] of the decision.  it would be pertinent to next examine the determine whether there were indeed 2 different versions of the Applicant’s evidence, and if so whether such differences are indeed stark and amount to serious or gaping inconsistencies that should cast grave doubt on the credibility of his claim as so determined by the Adjudicator.    

39.The Applicant’s NCF referred to by the Board in paragraphs 15 – 28 of its decision were in fact derived from his Answer 35 under the subtitle “Dispute” provided by his lawyer as follows:

“5. Sheedi had many enemies in Pakistan. On the day we arrested Sheedi, my SHO, Ghulam Akbar was bribed by an unknown person and our SHO was instructed to kill Sheedi and to stage his death to make it look like Sheedi was killed in a cross fire. Ghulam Akbar accepted the bribe and agreed to have Sheedi killed.

6. Ghulam Akbar then distributed the bribe money to 6 to 7 police constables of my team including me and instructed us to kill Sheedi and to make it look like he was killed in a cross fire. Two of the police constables accepted the bribe and they were Mohammad Shadhbaz and Muhammad Nadeem. Ghulam Akbar offered each of us 200,000 Pakistani Rupees.

7. All of the police constables of my team had accepted the bribe. However, I rejected Ghulam Akbar’s offer and told him that I would never accept a bribe, especially to kill someone. At that time, Ghulam Akbar did not say anything and he just let me leave. After that, I was assigned by Ghulam Akbar to work in a nearby police check post in the afternoon.

8. On the same night, I received a phone call from my wife and I found out that she was seriously sick. I told Ghulam Akbar that I had to go home to take care of my wife. He allowed me to have a half day leave. However, later I found out that Ghulam Akbar did not sign me out from the duty note book.

9. As soon as I left, Ghulam Akbar and the other police constables immediately killed Sheedi at the checkpost where I was supposed to be on duty.

10. At 3:00 am, a police team suddenly came to my house while I was in the Government Civil Hospital Aziz Bhati with my wife in Gujrat City. They showed an arrest warrant to my family and told them that I was being charged for the murder of Sheedi. I reasonably believed that Ghulam Akbar and the other police constables of my team intentionally framed me for murdering Sheedi as they were worried that I would reveal that they all accepted bribes to have Sheedi killed.

11. As the police could not locate me, they took my brother, Amir Nazir to Dinga Police Station. They tortured my brother and forced him to reveal my whereabouts. The police beat him with a leather strap and wooden sticks. The police beat him in such a manner that did not leave marks on his body, but would cause internal injuries. My family informed me via phone once my brother was caught by the police. Fearing that the police would arrest me, I fled from the hospital whereas my wife was hospitalized for three to four days.

12. I went to a remote tribal area near Peshawar City. It took 6 hours by bus to get there. I stayed with my friend, Amjad’s house. I did not encounter any trouble during my stay as I was cautious not to reveal my whereabouts. I still kept in touch with my family while I was in Amjad’s house.

13. My family told me that the police and Sheedi’s family were still looking for me. They asked my neighbour my whereabouts from time to time. As noted earlier, Sheedi’s family are gangsters, corrupt, rich, powerful and influential. They have close connections with Mian Tariq who is a Minister of the National Assembly. They are also active supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”).

14. Fearing that the police or Sheedi’s family would eventually find me, I decided to arrange a trip to leave the country.  I only stayed in Amjad’s place for around three months.  When I was there, Sheedi’s brother located my brother’s phone number and called my brother twice and threatened that he would kill me wherever they found me in revenge.  I fled from my country once my Chinese visa was ready in November 2014.  I arrived at Guangzhou airport on 15^th November 2014 and stayed in Guangzhou for around 5 months.  I arranged, through Amjad’s friend, for my trip to Hong Kong as I knew through Amjad that there was the offer of protection in Hong Kong.  Amjad had paid 450,000 Pakistani Rupees for my travel.  I did not encounter any trouble when I left Pakistan because my name had not been forwarded to the airport authorities at that time.  From my experience, as a police officer, it can take up to 4 months to declare someone a wanted person and to have the particulars disclosed to the immigration authorities in Pakistan.  The police would have to apply for a court order in this respect.”

40.It is clear from the above that the Applicant did not in his NCF specifically mention about the exact time or hours when the SHO offered the bribe to his team to kill Sheedi other than a reference to the Applicant thereafter being sent to the check post in the afternoon, and it was only at the conclusion of his screening interview when he was offered the chance to make “any further addition deletion or amendment” to his record of interview that he gave those specific hours of the various events which the Adjudicator then found to be starkly different with serious and gaping inconsistencies that went to the core events and casted doubt on the credibility of the Applicant’s claim.

41.In my view it was a case when further or additional information and/or clarification were given during his screening interview rather than giving 2 starkly different versions with serious and gaping inconsistencies, and hence it seems to me reasonably arguable that the Adjudicator’s determination that they are 2 starkly different versions that should cast grave doubt on the credibility of the Applicant’s claim is irrational or Wednesbury unreasonable in the circumstances.

Failure to Give Oral Evidence to Clarify Inconsistencies  

42.In addition to those inconsistencies listed above which required clarifications or explanations, the Adjudicator also noted a lack of information as to various events which led to the arrest of Sheedi by the Applicant’s team that brought him to the nearby check post where Sheedi was eventually killed, of which the Adjudicator found the Applicant to have failed to explain or clarify when he elected not to give oral evidence in his appeal hearing which further undermined the credibility of his claim as follows:

“29. According to the Appellant, Sheedi was arrested by his team between 7-9pm that night. He and his colleagues took Sheedi to the check post. It is not apparent where Sheedi was arrested and how he was arrested. It is also not clear why he was taken to a check post but not a police station with proper detention facilities.

30. More importantly, as raised by the counsel for the Director, there is no evidence on the circumstances of the arrest of Sheedi in the evening.  This is relevant because the plot, as alleged by the Appellant in the NCF version, was for Sheedi to be killed and the murder to be staged as if Sheedi had died in an exchange of cross fire with the police.  The Appellant would have to explain why Sheedi was not killed immediately when he was arrested and then stated to appear that he had died in cross fire according to the instructions of the SHO.  Instead, the conspiracy has changed substantially when Sheedi was killed in custody allegedly by the Appellant who was assigned the duty of guarding Sheedi after he rejected the bribe offered by his SHO. It is not possible for the Board to put questions on this point to the Appellant because the Appellant declined to give oral evidence at this hearing.”

43.Firstly, given the Applicant’s case that it was the SHO being the senior officer who was bribed to kill Sheedi and then masterminded the plot, and after having refused to be bribed, and hence he was not involved in the plot, it seems clear to me that the Applicant would not and could not be in any position to provide to the Board any details or rationale of the plot, nor was he present at the scene of the killing so as to provide the timing or details thereof.  As such it seems to me unreasonable or irrational of the Adjudicator to expect the Applicant to be able to do so at the hearing before the Board.

44.The Applicant of course in fact elected not to give any oral evidence at the hearing, which led to the Adjudicator’s conclusion that those inconsistencies left unexplained or clarified would go to cast grave doubt on the credibility of his claim.  While I agree with the Adjudicator that it was the Applicant’s duty to establish his claim, and in that sense obviously also to clarify and explain any issue arisen therefrom, and bearing in mind that the Applicant did give evidence in both his screening interview before the Director and in his first appeal hearing before the previous adjudicator, it does not appear to me that the Applicant was aware of those inconsistencies in his evidence at the hearing that would require his clarifications, or more relevantly that they had been drawn to his attention at the hearing and that in the absence of his clarification that his credibility would be impeached so that he may have the opportunity to respond or to change his mind about not giving oral evidence at the hearing, or at least to be able to reply or address those issues thereafter in writing before the Adjudicator were to arrive at any conclusion.          

45.As noted above in Prabakar, high standards of fairness required the Adjudicator not to just sit back and put the Applicant to strict proof of his claim, and that having identified such inconsistencies in his account of events which led to the killing Sheedi, the Adjudicator should have drawn them to the attention of the Applicant and/or his lawyer at the appeal hearing if the Board were to draw adverse inference against the Applicant in the absence of his clarification or elaboration, so that they could be appropriately addressed by the Applicant either at the hearing should he change his mind about giving oral evidence or at least to respond to those issues, or thereafter for him to do so in writing.

46.In Re Masud MD, CACV 341/2021 [2021] HKCA 1449, the Court of Appeal  examined the rule applied in the English case of Browne v Dunn (1894) 6 R 67 (HL) (28 Nov 1893) which provides that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untrue, questions must be put to him to give him notice that his credibility on that evidence would be impeached, as Coleman J in giving judgment of the Court elaborated:

“32. … The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.

33. There is also no need to put every minute detail of the case to the witness.  The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility in that regard would be impeached.”  

47.His Lordship noted that in Hong Kong this rule in Browne v Dunn had not hitherto been explicitly held that it should be observed in non-refoulement proceedings before the Board, but saw no reason why it should not apply in non-refoulement claim hearings which require a high standard of fairness, as it is essentially a rule of fair play and professional practice, and notwithstanding the fact that it was the applicant, as in the present case, who declined to give further evidence and therefore effectively ended the appeal hearing, and while it remained his duty to make his case by cooperating with the Board and to provide all necessary information including answering questions put to him, His Lordship was of the view that fairness would still require the Board to explicitly put to the applicant questions on matters which were in its view determinative: See [36] - [42] of the Judgment.     

48.Further, in MS v Torture Claims Appeal Board [2021] HKCA 979, the Court of Appeal without explicitly invoking the rule in Browne v Dunn held that as a matter of fairness a claimant should be made aware of the point if the Board were to draw an adverse inference from the claimant’s behaviour in conducting his claim by finding that his application for adjournment during his appeal hearing before the Board due to a headache was a stalling tactic which undermined his general credibility, the Court in allowing the appeal explained at para 27 of the Judgment:

“… it seems to us reasonably arguable that, in the circumstances of the present case, before concluding that the applicant’s application for adjournment of the appeal based on his headache on the day was a “stalling tactic” (and therefore a matter that could be and was taken into account as damaging his credibility under section 37ZD), the Board should in fairness have mentioned that possibility to him in general terms at the hearing. The fact that the applicant was legally represented (relied upon by the judge at [27] of his decision) does not necessarily mean that the applicant knew through his lawyer that the application for adjournment would be taken against him; there was no submission by the Director’s government counsel that any adverse inference should be drawn from the application for adjournment.”

49.In the present case, the Board recorded the Applicant’s decision not to give oral evidence at the appeal hearing as follows:

“8. The following is a summary of the Appellant’s case as gleaned from his NCF, his screening interview with the Immigration Department, his Notice of appeal/Petition (“NOA”) and the limited information that the Appellant provided to the Board through his counsel at the oral hearing at the request of the Board.  Unfortunately, the Board was informed by counsel for the Appellant only after the hearing had begun, that the Appellant had decided that he would not give oral evidence.  Instead, he would rely on the material and papers that are available to the Board, as well as his counsel’s submission, for the purpose of this re-hearing of his appeal/petition.  His unwillingness to give oral evidence has added to the difficulty of assessing his claim and ascertaining the crucial facts and events relating to his claim.

9. The Appellant did not change his mind about not giving oral evidence at the hearing despite the Board having explained to him the nature of the hearing and the fact that the hearing was a fresh hearing (de novo hearing) into his claim as the previous decision of the TCAB dated 3 August 2017 had been quashed by the Court of First Instance.  He was also reminded by the Board that he had a duty to establish his case before the Board.  As the Appellant was legally represented, the Board could only assume that he had declined to give oral evidence with the full knowledge of his duty to assist the Board to establish his claim.”

50.Other than one question put by the Adjudicator to counsel for the Applicant during the hearing as to whether the Applicant was aware of an Extradition Treaty between Pakistan and China, which was raised by counsel for the Director over his stay in the Mainland for some 4 months before arriving in Hong Kong, and to which the Applicant answered through his counsel in the negative (see [67] – [69] of the Board’s decision), it does not appear from the Board’s decision that the Adjudicator had ever raised any of those inconsistencies in the account of events to the Applicant or his counsel at any time during the appeal hearing that they would warrant his clarification or explanation, or give him notice that without which the credibility of his claim would be impeached or casted in grave doubt by the Board.

51.Further, as noted in [69] of the Board’s decision, the Adjudicator during the appeal hearing did propose to give both the Applicant and the Director 2 weeks after the hearing to make further written submissions to the Board regarding the point raised by the Director over the Extradition Treaty between Pakistan and China, but which was declined by both sides as unnecessary.  As such it should in my view have occurred to the Adjudicator that those inconsistencies should also be raised to the Applicant and/or his counsel at the hearing for his response, or even thereafter for him to do so in writing, as high standards of fairness would certainly require the Board to do so.            

52.Accordingly, and for the given reasons, I am of the view that it is reasonably arguable that it was procedurally unfair of the Board not to raise those issues or points of inconsistencies to the Applicant which required clarifications and the potential consequences of his failure to do so either at the hearing or thereafter before arriving at its decision and/or that it was a lack of high standard of fairness on the part of the Board in failing to do so.      

Other Issues Raising Doubts about the Applicant’s Claim

53.The Adjudicator then went on to raise other issues which he considered further undermining the credibility of the Applicant’s claim as follows.

Delay in Leaving the Risk Country

54.The Adjudicator considered the fact that the Applicant remained in Pakistan for over 3 weeks after the Chinese visa had been issued to him before departing for China not consistent with someone who is a victim of a police plot and also at risk from revenge by the family of the murder victim, as it was stated in the decision as follows:

“58. The Appellant claimed that he hid in a tribal area in Peshawar which is about 6 hours by bus from his home.  He stayed in Amjad’s place in Peshawar.  Amjad is a friend of the Appellant.  He claimed that as the police and Sheedi’s family were looking for him, he felt he needed to leave the country.  He said Amjad helped him leave Pakistan by paying 450,000 Pakistani Rupees for his travel.  Amjad also told the Appellant that there was “the offer of protection in Hong Kong”.  The Appellant arranged, through a friend of Amjad, for his trip to Hong Kong.

59. The Appellant applied for a visa to go to China from the Chinese Embassy in Islamabad.  It is not apparent why he did not apply for a visa to come to Hong Kong as Hong Kong seemed to be his intended destination, and also the destination recommended by Amjad who funded his travel.  He said in the NCF that he fled Pakistan “once my Chinese visa was ready in November 2014”.  However, his passport revealed that the visa to China was granted to him on 21 October 2014.  His passport also revealed that he left Pakistan on 14 November 2014.  This means that he stayed in Pakistan for over three weeks after the Chinese visa was issued to him. This conflicted with his claim that he fled Pakistan as soon as his visa was ready. When confronted with this delay at the screening interview, his explanation was that “as soon as I got my passport back with the visa, and the money was arranged, I left Pakistan”.

60. The Appellant’s response is not satisfactory in that he had from August to October 2014, that is to say ample opportunity, to arrange for his escape including securing the necessary travelling expenses and yet he did not leave Pakistan upon the issue of a visa to him.  The insufficiently explained reason for the delay is not consistent with what someone in his situation would do.  That is to say, someone who is personally at risk and is facing an imminent threat from a conspiracy hatched by a senior police office and a powerful criminal family would have ensured that he could escape to safety as soon as the first opportunity arises.

61. What is somewhat surprising is his choice of using the official channel to leave the country more than three months after he had been framed by the SHO and his former colleagues for the murder of Sheedi.  By his own admission and the record in his passport, he left Lahore, Pakistan on 14 November 2014.  As counsel for the Director pointed out, he did not encounter any trouble travelling to Lahore from Peshawar, or at the airport when he left Pakistan.  In his NCF, he dealt with the point as follows:-

     “I did not encounter any trouble when I left Pakistan because my name had not been forwarded to the airport authorities at the time. From my experience, as a police officer, it can take up to 4 months to declare someone a wanted person and to have the particulars disclosed to the immigration authorities in Pakistan. The police would have to apply for a court order in this respect.”

62. The Appellant seemed to have great confidence in his knowledge that it would take “up to 4 months” for the authorities in Pakistan to declare someone a wanted person.  This may be the reason why he decided to go through the official channel when he left Pakistan.  The Appellant may have been a police officer for seven years but the Board has grave doubt about his claim that it would take the Pakistan authorities up to four months to put a person’s name on the wanted list at the border control points if that person is accused of a crime as serious as murder.

63. The Board also noted that the Appellant used “up to 4 months” in his statement to describe the time it may take to put a name on a wanted list.  If he really meant what he said, there would be an even more urgent need for him to flee Pakistan as soon as he was granted a visa because his name could be put into the wanted list any time within four months from 10 August 2014.

64. The Appellant also said one of the reasons for the authorities to take up to four months to put a name on the wanted list was because the police would have to apply for a court order in this respect.  The Board does not consider that the need for a court order would lead to such prolonged delay, especially in the case of serious crime. The Board recalled the Appellant’s evidence in the NCF where he said a warrant was obtained for his arrest on the same night of the alleged murder of Sheedi.  The arrest warrant was shown to his family at 3am on that night when the police raided the Appellant’s house.  The Board does not consider it credible that the need for a court order would significantly delay the time when a person accused of a serious crime may be put on a wanted list.  

65. The undue delay in his leaving Pakistan is not consistent with someone who is a victim of a police plot and someone who is also at risk from revenge by the family of the murder victim.”         

55.Firstly, it seems to me reasonably arguable that it was irrational or Wednesbury unreasonable of the Adjudicator to find 3 weeks an undue delay before the Applicant was to leave his wife, children and family as well as his home country with the possibility of never being able to return, and that also to have to sort out various important or necessary matters including financial aspects for his trip and his future in wherever place he was to end up, or that such delay should be considered as so significant to be inconsistent with someone who is a victim of a police plot and at risk from revenge by the family of the murder victim that it should cast doubt on the credibility of his claim.     

56.Further, it seems also reasonably arguable that the Adjudicator erred in law and was procedurally unfair in his consideration that there would not be any need to apply for a court order in serious crime such as murder so as to put the Applicant’s name in the wanted list in Pakistan without any evidential basis or corroboration by any relevant COI other than his own view or assumption, and without putting such view to the Applicant for his response before arriving at the conclusion that there was undue delay in the Applicant’s leaving Pakistan which was not consistent with someone in need of surrogate protection by another state.     

Delay in Leaving Mainland China

57.The Adjudicator in the decision also criticized the Applicant for failing to explain what he considered to be a relatively lengthy stay of 4 months in China before coming to Hong Kong, and that being a policeman he should have been aware of the Extradition Treaty between Pakistan and China and hence would be at risk of being arrested by the Chinese authorities under the Treaty during those 4 months-stay that it is also not consistent with someone in need of surrogate protection by another state:

“66. The Appellant left Lahore, Pakistan on 14 November 2014. His flight transited Bangkok, Thailand and he arrived in Guangzhou, China on 15 November 2014. Despite Amjad’s advice to him to seek protection in Hong Kong, the Appellant stayed in Guangzhou from 15 November 2014 to an unspecified date in March 2015. Not much is known about what he did in Guangzhou during this four-month period. Eventually, through Amjad’s friend, he made arrangements to come to Hong Kong.

67. While the Board would like to know more about the reasons for his relatively long stay in Guangzhou and details about his stay there, it was not possible because he elected not to give oral evidence. Nonetheless the Board put forward this question to counsel for the Appellant, i.e. whether or not the Appellant was aware of the fact that there is an Extradition Treaty between Pakistan and PRC which became effective in 2008 (the “Extradition Treaty”) at which time the Appellant had already become a policeman in Punjab.

68. As a policeman with seven years of experience and as someone who seemed to know a lot about when and how a fugitive’s name may be put on the warned list by the Pakistani authorities to prevent the fugitive from leaving Pakistan, it would be likely and logical to expect that the Appellant should be aware of the existence of the said Extradition Treaty which has been in place for nearly 6 years at the time of the material incident and his exit from Pakistan. If he was indeed aware of it, he would have to explain why he chose to stay in mainland China for nearly four months and put himself under the risk of being arrested by Chinese authorities at the request of the Pakistani authorities and extradited to Pakistan for the murder of Sheedi. If he was not aware of the Extradition Treaty, he would also have to explain why it was not known to him despite his long experience serving as a police officer.

…

72. However, the Appellant chose to remain silent except confirming his ignorance of the Extradition Treaty. This again highlights the Appellant’s failure to fulfil his duty of establishing his case and helping the Board to jointly establish his case. He had failed to clarify various aspects of the claim when he was given an opportunity to do so.

73. The Board also considers that the existence of the Extradition Treaty per se (independence of the Appellant’s knowledge of the existence of the Extradition Treaty) and the fact that the Appellant had failed to mention any specific event which may suggest that he was at risk of being captured while in China is also relevant, although not determinative, of whether the Appellant is subject to a real and personal risk of being tortured, or even killed, by the police in Pakistan or members of Sheedi’s family.

74. It should be recalled that the Appellant himself acknowledged that it would take up to four months for a wanted person’s name to be included in a list of persons that would be prevented from leaving Pakistan. He was fortunate to be able to leave Pakistan undetected when he took a flight from the airport in Lahore to Bangkok/Guangzhou with his passport over three months after the date when he was allegedly accused of murdering Sheedi. While he might not have been stopped by authorities when he left Pakistan, it would not have been difficult for the Pakistani authority to subsequently determine where the Appellant had gone given that his departure record would have been known to the authorities. They may also be able to ascertain the same with airlines’ records.

75. With such knowledge, the Pakistani authorities could have made a request to the Chinese authorities for the arrest and extradition of the Appellant and yet the Appellant had not made any claim or indication that he was being sought or wanted by the Chinese authorities while he was in Guangzhou for four months. While the Appellant may explain that this was pure luck again that the Pakistani did not seem to pursue him while he was in China, it does not mean that he had not been under any threat of arrest in China despite the existence of the Extradition Treaty.

76. Furthermore, the Appellant decided to stay in mainland China for over four months before coming to Hong Kong.  Again this is not consistent with someone in the Appellant’s position who is in need of surrogate protection by another State when he had been advised that it was Hong Kong, not Mainland China, that could offer such protection.  When the Appellant eventually arrived in Hong Kong in March 2015, he did not immediately seek protection from the authorities in Hong Kong.  Indeed, he was arrested by the police for illegally remaining in Hong Kong on 17 March 2015 and he raised a non-refoulement claim by a written signification dated 21 March 2015.”      

58.It appears from the above that the Adjudicator had again made his own assumptions about what the Applicant as a policeman should have known how Pakistani authorities dealt with fugitives including putting their names in the wanted lists in the airports and the Extradition Treaty with China without any evidential basis or relevant COI, and without putting these points or issues to the Applicant for his response or reply before arriving at the conclusion that his 4 months-stay in China was also not consistent with someone in need of surrogate protection in Hong Kong.  

59.As such it is in my view reasonably arguable that the Adjudicator erred in law in making his own assumptions without evidential basis or corroboration by relevant COI in arriving at such adverse inference on the credibility of the Applicant’s claim, and that it was also procedurally unfair in his failure to put these issues to the Applicant for his response or reply before making arriving at his conclusion.

Conclusion

60.In the premises, and for all the given reasons, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on those grounds stated in [41], [52], [55], [56], and [59] above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

61.Accordingly I grant leave to the Applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue his originating summons, 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 February 2024

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