Munir Zahid v. Torture Claims Appeal Board

HCAL 245/2017

[2018] HKCFI 696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 245 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 29-year old Pakistani man who entered Hong Kong illegally in about early March 2012 and was subsequently arrested by the police on 4 May 2012.  On the following day he was referred to the Immigration Department for investigation where he subsequently on 6 May 2012 raised his non-refoulement protection claim on the ground that he came to Hong Kong to escape from the terrorist group Taliban and that he would be harmed or killed by them if he is to return to Pakistan.

2.The applicant was born in Village Kotli Kalan, District Nowshera, KPK, Pakistan.  He is single with no siblings while his parents are deceased. After leaving school he worked as a shepherd grazing sheep and goats for people in Darra which is about two hours’ drive from his home village and close to the border with Afghanistan in the mountain areas, where he had built a hut to stay during work, returning to his home only once a month after he received his pay to support his parents.

3.One day in August 2011 whilst herding sheep and goats in the mountains, the applicant was approached by five Taliban men armed with guns and pistols who threatenedto kill him if he did not join them.  He was then taken to a training camp where his picture was taken and then in a room for three days with his hands and feet tied with a hood put over his head.  He was then asked to be a suicide bomber and when he refused, electrical shock was applied to his body causing tremendous pain to him.

4.After about a week the applicant was taken to various places to observe actual operations of the Taliban’s suicide bombers, and afterwards he would be brought back to the training camp.  About two months later one day he heard violent explosions and gun shots all over the camp, and after his guard had run away, he was able to escape and ran for an hour until he reached the Mardan area in Pakistan where he called his childhood friend AK for help.

5.AK therefore arranged for the applicant to hide in his house in Islamabad, but as he remained fearful that he could be located by the Taliban who had taken his picture, he was advised by AK who was in the mobile phones and watches business and had travelled frequently to China and Hong Kong to seek protection in Hong Kong.  Hence with AK’s assistance the applicant left Pakistan on 11 December 2011 for China where he stayed until March 2012 when he then entered Hong Kong illegally by boat and was eventually arrested by the police on 4 May 2012 and subsequently made his non-refoulement claim.

6.After his release by the Immigration Department on recognizant pending their investigation, the applicant was told by AK that his parents were both killed by the Taliban back in 2011 when he was still in China, and that although the police did come to his village for investigation, they could not do anything about the Taliban.  He was also warned by AK that the Taliban would continue to look for him. 

7.Upon subsequently completing his Non-refoulement Claim Form on 15 July 2015 with the assistance of the Duty Lawyer Service and attending an interview by the Immigration officer in the presence of his lawyer on 20 October 2015, the applicant’s claim was rejected by the Director of Immigration (“the Director”) on 28 October 2015 on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatmentor punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.In his detailed decision of 28 October 2015 the Director found the applicant’s fearthat he could be located by the Taliban due to their power, influence and extensive network as speculative without corroborative evidence, that it had been four years since he had left Pakistan and there is nothing to support the allegation that they still have interest in locating him, whilst their alleged killing of his parents was merely hearsay unsupported by any documentary evidence such as police reports or death certificate which could have been easily obtained by AK, nor is it reasonable to suggest that the Taliban would utilize or mobilize their resources to pursue him all over the country, hence it was not accepted that his claimed risk of being harmed or killed by the Taliban is real or foreseeable, and that such risk if still existed was assessed to be small especially if he is to relocate to other parts of the country.

9.It was also pointed out to the applicant that objective Country of Origin Information (“COI”) show that the availability of state protection in Pakistan further lowers or negates the level of such risk, with regular military actions taken to counter the Taliban and other terrorist groups and activities in Pakistan, a country with such a large population of 199 million people spread over more than 796,000 square kilometers whereit would be very difficult if not impossible for the Taliban, if they still so desire, to locate him, and that being young and single with no family burden the applicant would have many options for relocation such as Islamabad where his childhood friend AK lives and runs a successful family business, or to other cities of Pakistan where it would not be unduly harsh or unreasonable for him to start his new life.     

10.By a Notice of Further Decision dated 25 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”).

11.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”), which he filed on 6 November 2015 against the earlier decision of the Director, and attended an oral hearing before the Board on 6 February 2017 in person during which he gave evidence and answered questions put to him by the Board.  On 12 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In assessing the applicant’s claim and in applying the definition of torture under section 37U(1) of the Immigration Ordinance, the Board found that the ill-treatment suffered by him in the hands of the Taliban men had not attained a minimum level of severity, and whilst accepting that COI do show that various groups of Taliban operating in Pakistan did routinely kidnap and radicalize boys and young men to carry out jihad operations in Pakistan and elsewhere, it considered that in the situation of the applicant as an able-bodied adult with eight years of education and experience of fending for himself up on the mountains while being a shepherd, and with support of a well-to-do childhood friend in AK, it would not be unduly harsh for him to relocate to another part of the country away from trouble spots to start fresh, and as he is a Muslim which comprises 95% of the population, he would be able to merge into the general population away from the areas with strong Taliban presence.  Accordingly the Board also concluded that the applicant has failed to substantiate his non-refoulement claim and dismissed his appeal. 

13.Nevertheless the applicant on 26 May 2017 filed his Form 86 for leave to apply for judicial review of the Board’s decision, but he did not put forward any particular or specific ground for his leave application, nor did he in his supporting affirmation of the same date other than repeating the same claim of his fear of being harmed or killed by the Taliban as he did before the Director or the Board, whilst in his further affirmation of 1 June 2017 he merely exhibited the entire bundle of hearing provided to him earlier for his appeal before the Board.  In the avoidance of doubt these are the reasons stated in his first affirmation why he fears of being harmed or killed if he returns to Pakistan:

“ 5. I have now been advised by my friend that the terrorist group is still active and powerful. They will kill me in case I go back to Pakistan.

6. As such I, remained in their training camp, the Government of Pakistan may also treat me as a felicitator to that terrorist group, therefore the Government of Pakistan may treat me the companion/facilitator to that group and arrest me as and when I go back to Pakistan and fear that they will give me death penalty as a facilitator of terrorists.”

14.In other words, the risks of torture and/or persecution according to the applicant are not only from the Taliban but also from the state of Pakistan.  In the absence of any particulars or specifics provided by the applicant, the only appropriate question for me in the consideration of his application is to ask, with rigorous examination and anxious scrutiny of the Board’s decision, whether there is any error in law or procedural unfairness, or any failure on its part to apply high standards of fairness, in the Board’s consideration and assessment of those risks? 

15.For his fear of being persecuted by the Pakistan government, the only basis that there could be any must be that the Pakistan army in its attack of the Taliban camp may have uncovered the photograph taken of the applicant by the Taliban and therefore somehow regarded him as one of them, but even that unlikely event that he may have as aresult ended up in the terrorists warning list of the Pakistani government is negated by thefact that, as pointed out by both the Director and the Board, he was able to leave Pakistan without any problem for China which shows that the state has no adverse interest in him.   

16.As for the applicant’s fear of being pursued by the Taliban, I agree that having found in paragraph 66 of her decision that the applicant had indeed been threatened and abducted to a Taliban camp for two months during which he was kept hooded and bound and was subjected to electric shock causing injury and forced to be a suicide bomber, the adjudicator may have understated that such ill-treatments had not attained the minimum level of severity, but once she has also found valid reasons to conclude that it would not be unreasonable or unsafe for the applicant to relocate safely to other parts of Pakistan, there is simply no justification for me to interfere with the Board’s decision, as it was held by the Court of Appeal in TK v Jenkins[2013]1 HKC526 when Cheung CJHC stated:

“ 32. … the question of internal relocation (otherwise known as internal flight). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the internal relocation alternative), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.

33.     There may be different reasons why the risk of torture is a localised one.  For instance, where the torture is not the state or a ‘state agent’, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternative(s) concerned.  Or meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternative(s) where the risk of torture is nonexistent or insubstantial.  If the risk of torture is for one reason or another a localised one, one must move on to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative places under consideration or whether it would be unduly harsh to expect him to do so.”   

17.Clearly these Taliban men or groups operating in Pakistan are not the state or ‘state agents’, and that even according to the applicant they were being attacked by the Pakistani army when he was able to escape from the camp.  As it is plain from both the COI and the applicant’s own evidence that the Taliban were not targeting him specifically but in general looking to abduct and recruit young men in Pakistan for their purposes, hence there is no reason for them to bother to hunt him down after his escape after all these years.  As a matter of fact, they may not even be aware that he is still alive so many years after the army’s attack of their camp. 

18.Furthermore, despite the existence of such a risk that the applicant may on his return to Pakistan be again targeted by the Taliban for abduction, which is no greater thanthat to the average young man in Pakistan, and in ignoring the unlikely possibility that thiscould happen to him twice, it does not alone constitute a sufficient ground for determining that he will be in danger of being subjected to torture, as stated by Cheung CJHC in TK v Jenkins, supra, in paragraph 29 of the judgment:

“ Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of ‘a consistent pattern of gross, flagrant or mass violations of human rights’ (art 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the person will be ‘personally at risk’. This is because the aim of the determination under the CAT is to establish ‘whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return’. …”

19.This has in fact been properly considered by the adjudicator as she rightly pointed out in paragraph 161 of her decision that the applicant is not personally at risk:

“ … The ill-treatment he feared was not on account of his race, religion, nationality, membership of a particular social group or political opinion. He was kidnapped as a potential suicide bomber by the Taliban, threatened and given an electric shock as he refused to comply. His fear did not come within the definition of persecution.”

20.As detailed in the Board’s decision, objective COI also show that “Pakistan has continued to work towards structural reforms on counterterrorism”, as well as taken military actions against the various Taliban terrorist groups, and that there is “systemic sufficiency of state protection” in Pakistan available to the applicant, and I am unable to find any error in law or unfairness in procedure for the Board to accordingly conclude, and to have so suggested to him, that it would not be unduly harsh or unreasonable for the applicant to relocate to Islamabad where his childhood friend AK runs a successful family business, or some other part of Pakistan away from the trouble spots where he can safely live and work away from the threats of the Taliban.

21.In the premises and for these reasons, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 29^th day of March 2018.

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