Sajid Usman v. Torture Claims Appeal Board

HCAL 381/2024

[2024] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 381 OF 2024

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 / the Applicant being absent 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 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 40-year-old national of Pakistan who entered Hong Kong illegally on 7 September 2013 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Pakistan he would be harmed or killed by his Muslim family and relatives for marrying a Christian wife and converting his religion to Christianity. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Muslim in Sialkot, Pakistan. After leaving school he worked as a carpenter in his home district to make his living.

3.In 2007 he started dating a girl Catherine who was a Christian, of which the Applicant kept it a secret from his family for fear that his parents would object due to their different religions, and in April 2010 when they decided to get married, the Applicant did not inform his family, and instead quietly married his wife away from his home district in Gujranwala with the help of his friend Asif.

4.It was only after their marriage that the Applicant subsequently returned to Sialkot and informed his family, whereupon his parents became furious and drove him out of the house, and so the Applicant moved with his wife to Miana Pura where he ran a grocery store to support the family.

5.In February 2011 with the encouragement of his wife and the help of Asif the Applicant also converted his religion from Islam to Christianity, and after the news of his religious conversion had spread to his home village, one day in February or March 2011 his brother and several of his cousins, who were all Muslims and some had connections to the local police or gangsters, came to his home in Miana Pura and accused him of betraying Islam, and proceeded to attack him with knives and wooden sticks that he suffered cuts and bruises all over his body, and when his wife tried to intervene, she was struck heavily on the head and collapsed onto the floor and later died in the hospital from the injuries, while the Applicant was also hospitalized for 2 weeks due to his own serious injuries .

6.Upon his discharge from the hospital, the Applicant was told by Asif that his brother and cousins had also burned down his home and destroyed all his belongings while he was in the hospital, and so the Applicant took shelter in his friend’s place in Chang, Punjab.

7.Later the Applicant moved to Asif’s place in Gujranwala, during which he paid many visits to his home district in Sialkot to look for witnesses of his attack and the subsequent burning down of his home in order to make a case to the police against his brother and cousins but to no avail, and while he was at the police station pressing the police to launch their investigation, his brother and cousins who had connections with the local police came to make further threats against him that they would finish the job of killing him, whereupon the Applicant fled from Sialkot for Gujranwala to hide in Asif’s place.

8.On Asif’s advice and assistance, the Applicant decided to leave the country to save his life, and so in August 2013 he departed Pakistan for China, and from there he later sneaked into Hong Kong, 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 5 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 26 February 2018 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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted his claimed fear of harm from his family and relatives upon his return to Pakistan due to his religious conversion from Islam to Christianity as he did not leave Pakistan right after the attack by his brother and cousins in early 2011 and instead had remained in the country and even returned to his home district many time until more than 2 years later in August 2013 that his such behavior did not demonstrate that he was in fear of being harmed or killed as claimed, that in any event it was a private religious dispute within his family without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 204 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Karachi where it would be difficult if not impossible for anyone to locate him.

11.On 9 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing on 1 June 2021 before the Board without any explanation, whereupon the Board proceeded to deal with his appeal in his absence, and on 7 July 2021 the Board dismissed his appeal and also confirmed the Director’s decision.

12.In its decision the Board expressed to have concerns about aspects of the Applicant’s claims and therefore decided to hold an oral hearing to discuss with him those issues, but due to his unexplained absence from the scheduled hearing and without further evidence from him that the Board could not be satisfied why he left Pakistan and whether he cannot return for the reasons claimed, and hence the Board was unable to make a finding that the Applicant was threatened or harmed because of his marriage and conversion to the Christian religion or to make a finding that he would be at risk of harm for those reasons were he to return to Pakistan, and concluded for these reasons that the Board was not satisfied that the Applicant will be harmed because of his religion if he returns to Pakistan that his claim for non-refoulement protection failed on all the applicable grounds.

13.On 27 February 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

14.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

15.As the last day of the three-month period for him to file his Form 86 fell on 7 October 2021, the Applicant was therefore some 2 years 4 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 2 years 4 months must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, while the record shows that the Board’s decision was sent on the same day of 7 July 2021 to his then reported address without being returned through undelivered post. While it noted that at the time when he filed his Form 86, the Applicant was then (and still is) being detained by the Immigration Department at the Castle Peak Bay Immigration Centre (“CIC”), and that it is not at all clear when he was first being so detained, but given the very substantial period involved and in the absence of any explanation from the Applicant, I am unable to see any justification for his such serious delay.

17.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge. Nevertheless, given the seriousness of the issue at hand and that his life and limbs are said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for rejecting his claim and dismissing his appeal as stated in the decision.

18.In assessing the Applicant’s claim, the Adjudicator did first refer to relevant COI as to the situation of persons known to have converted from Islam to Christianity, and agreed that the risks arising therefrom could be real and severe in Pakistan, as the Board’s decision so stated as follows:

“41. It is reported that the situation of persons who are known to have converted from Islam to Christianity is much more difficult than for a person who was born Christian. The UK Home Office states that it is rare in Pakistan for a person to convert to Christianity, or at least to do so openly, as it is likely that a person’s conversion will become known within their community with potential repercussions. In general, society is extremely hostile towards converts to Christianity and people who are known to have converted suffer acts of violence, intimidation and serious discrimination from non-state actors. A person who converts from Islam to Christianity may also be accused of apostasy and blasphemy which could involve a term of imprisonment or even a death sentence.

42. If the Appellant’s claims were to be found credible, there is sufficient information available which indicates that he may be a person in need of non-refoulement protection.”

19.However, as noted above at [12], the Applicant’s claim was rejected and his appeal dismissed essentially for the reason that the Adjudicator was unable to make a finding that he would be at risk of harm if refouled to Pakistan for having converted his religion from Islam to Christianity due to his failure to attend the scheduled hearing before the Board in order to discuss and explain the various aspects of his claims which the Adjudicator had concerns as stated in the decision at [43]:

“ … I had concerns about aspects of the Appellant’s claims and, therefore, decided to hold an oral hearing to discuss with him issues, for example, such as:

a) the general credibility of his claims, including his knowledge of the Christian religion and country information indicating conversion to Christianity is rare in Pakistan;

b) given that Muslim men are permitted to marry Christian women, why his family was so opposed to the marriage;

c) if he was afraid he would be harmed because he had married a Christian woman, why he and Catherine returned to their home area where, in fact, they seem to have lived without incident for nearly a year;

d) given societal attitudes to conversion to Christianity by Muslim men, why Alidata would announce his conversion to the community and why the Appellant would actively canvas the neighbourhood looking for witnesses to the attack upon him and Catherine;

e) similarly, given societal attitudes, why Asif, Tahir and Habib would provide him with significant assistance;

f) why Shahid would simply let him go from the police station if he were intent on harming or killing him; and

g) whether he is still a Christian and, if so, whether it would be possible for him to relocate within Pakistan to an area with a Christian population such as Karachi or Lahore.”

20.The Adjudicator then proceeded to explain why without further evidence from the Applicant that the Board was not satisfied that he will be harmed because of his religious conversion if returned to Pakistan:

“44. Without further evidence from the Appellant, I cannot be satisfied why he left Pakistan and whether he cannot return for the reasons claimed. I am therefore unable to make a finding that the Appellant was threatened or harmed because of his marriage and conversion to the Christian religion. Similarly, I am unable to make a finding that he would be at risk of harm for these reasons were he to return to Pakistan.

45. For these reasons, I am not satisfied that the Appellant will be harmed because of his religion if he returns to Pakistan. He has not claimed to fear harm for any other reason.”

21.Even leaving aside the probative value of some of the issues which the Adjudicator wished to raise with the Applicant, such as the various actions of his friends or third parties referred to above which the Applicant would not in my view have been able to answer other than just speculations had he attended the hearing, and even if he had but for whatever reason declined to give evidence or to answer questions, in deciding whether there were substantial grounds for believing that the Applicant would be in danger of being harmed if refouled to Pakistan, the Adjudicator would still need to make finding as to the primary facts of the Applicant’s claim of his religious conversion and the resultant threats and assault from his family, as held by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, in which Cheung CJHC (as he then was) in giving judgment of the Court elaborated at para 30:

“ … In deciding whether there are substantial grounds for believing that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact. To take the present case as an example, one needs to decide whether the applicant’s story about what happened to him and his friend, C, back in Pakistan was true or not. In relation to the primary facts comprising the applicant’s story, the Director and adjudicator had to make findings of fact. The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above).”

22.Notwithstanding the fact that the Adjudicator already had, as shown in [36] of the decision, taken into account the materials in the hearing bundle supplied by the Director as required by The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”), 4^th edition, 12 September 2016, and had accordingly set out in details the primary facts of the Applicant’s claims in the Board’s decision ([22] – [35]), but there was no elaboration on why the Adjudicator was unable to determine the credibility of the claim, or in the absence of any such adverse finding, on whether there was a basis for his claimed fear of harm which the Adjudicator would have to proceed to analyze and assess under all the applicable grounds on the basis that the Applicant’s case is plausible.

23.In Re Hidayah [2018] HKCA 595, where the applicant similarly failed to attend the hearing before the Board which then dismissed her appeal for the same reason that it was unable to determine her credibility due to the absence of oral evidence from the applicant, the Court of Appeal, in allowing the appeal against the subsequent decision of the Court of First Instance’s refusal to grant leave to apply for judicial review of the Board’s decision, elaborated on the duty of the Board to make finding on the primary facts of the applicant’s claim as follows:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed analyze and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

24.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is similarly arguable on the ground that the Board had failed to give or give sufficient reasons for rejecting his claim and dismissing his appeal, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 and that leave.

25.Accordingly, I am satisfied that there are merits in the Applicant’s intended application for time to be extended for its late filing, and for leave to be granted for him to apply for judicial review of the Board’s decision, and direct that he shall within 14 days of this decision file and issue the 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 23^rd day of May 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