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

Case No.HCAL 2947/2018[2020] HKCFI 2926

Court

High Court CFI

Date19 Nov 2020

Judge—

Case Document

100%Judiciary

HCAL 2947/2018

[2020] HKCFI 2926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2947 of 2018

BETWEEN
	Khan Usman	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant sneaked into Hong Kong on 31 March 2012. He was arrested by the police. He lodged the torture claim on 2 April 2012. He was granted recognizance on 4 May 2012. The torture claim was rejected by the Director on 29 October 2013[1]. There was no appeal to the TCAB.

2.On 20 January 2015, he was arrested by the police. He lodged the present non-refoulement claim on 23 January 2015. He was granted recognizance on 25 February 2015. At the time of the assessment by the Director, he was remanded in Lai Chi Kok Reception Centre.[2]

3.The Director fixed a screening interview on 9 November 2017 for the non-refoulement claim. The applicant defaulted as he was sick. The Director invited him to answer a list of questions instead[3]. He replied through the Duty Lawyer Services on 23 November 2017. The Director proceeded to assess his claim without a screening interview on the remaining grounds.

Background

4.The applicant was born on 25 August 1988 in the village Mohib Banda, District Nowshera. He last lived in Dina City. He was single and completed high school in 2006. He was a labourer until 2012. He and his family had never joined any political organization or social group in Pakistan.

5.Around January 2012, his neighbour (‘Israr’) introduced him to a person who claimed to be the head of the Taliban in the village of Bara (‘the Head’) [4] . The Head offered a reward for him to carry a bomb to a place to be named. He was terrified and asked for time to consider.

6.The next day, he told Israr that he would not do it as it was a sin according to Muslim. He left his village and hid in Rawalpindi [5] for a month. He was afraid that the Head would kill him. His brothers did not tell Israr of his whereabouts. He was safe in Rawalpindi.

7.He then moved to Dina City [6]. He was safe there. He did not report to the police as this might disclose his identity. It would be more dangerous.

8.While in Nowshera, he had a Christian girlfriend (‘Sehrish’). Her parents discovered their love affair and threatened to kill him if it continued [7]. He stopped dating Sehrish since then.

9.On the advice of a friend, he arranged a visa to go to China by air via Bangkok on 23 March 2012. There was no problem leaving Pakistan. He then sneaked into Hong Kong from Shenzhen by boat. He was arrested.

10.A friend told him Sehrish had married. However, he was still in fear that the Taliban might kill him because he refused to carry a bomb for them. Further, he was ethnic Pushtun whom the Taliban targeted.[8]

11.He thought the Pakistani authorities would not protect him. He had no confidence in any complaint channels. The police were corrupt and incompetent. The courts were ineffective and judges worried about their security. The Taliban had a nation wide network. It was not possible to relocate.[9]

The Decision of the Director

12.The Director refused his claim on 4 December 2017. The Director found that the level of risk of harm from the Head and the family of Sehrish was low. The main reasons were:

(a)  Sehrish had married in Pakistan after the applicant came to Hong Kong. The risk of harm from her family had dissipated. In fact, the family of Sehrish had not inflicted harm. There was only one incident of threat. This evidence could not amount to a minimum level of severity.[10]

(b)  The Head never directly approached the applicant. The applicant merely speculated that the Head could locate him all over Pakistan.[11]

(c)  After detailed research of COI, the Director was of the view that the Pakistani government was capable of enforcing the law and maintain order. Although there was corruption, police malpractice and terrorist attack, there was still reasonable State protection.[12]

(d)  The applicant was able to hide himself safely in Rawalpindi and Dina City for several months before leaving for Hong Kong in March 2012. He could leave through official channels without any problem. Pakistan was a large country with a huge population, it would be difficult for the Head to locate him. Given his background, it was not unreasonably harsh for him to relocate.[13]

13.The applicant had experienced no actual harm. There was no ill-treatment amounting to a minimum level of severity. There was no genuine and substantial risk of ill-treatment if return to Pakistan. BOR 3 claim failed.

14.Similarly, there was no evidence that he would be at risk of arbitrary deprivation of life. None of the other subsections of BOR 2 was engaged. This claim failed.

15.The alleged fear was that the applicant refused to carry a bomb for the Head. The threat did not arise from any Convention reason. This claim failed.[14]

The Decision of TCAB

16.The TCAB hearing was held on 10 October 2018. The adjudicator rejected the claims of the applicant on 16 November 2018.

17.The adjudicator had analysed the oral evidence and the other documents before her. She found serious inconsistencies which affected the credibility of the applicant. The following was the main points:

(a)  In his oral evidence, the applicant said he stayed away from home village for 2 years before leaving Pakistan in 2014. He hid himself in Rawalpindi (15 months) and Dina City (9 months). However, he said it was only 3 months in his NCF.[15]

(b)  All his family was not in trouble with the Taliban or the Head despite they were of the same background.[16]

(c)  In his oral evidence, the applicant indicated that he knew very little about the Head. He did not even refer to this man as the head of the Taliban in any area. He was unable to recall the detail of their conversation that day. He even confirmed that he only guess that man came from Bara.[17]

(d)  In his oral evidence, the applicant said he stayed in his home village for 1-2 weeks before leaving for Rawalpindi. However, in his NCF, he said he left the next day after the threat.[18]

(e)  The COI reviewed that the Taliban had organised strategy to recruit young men to their cause, eg, free food and accommodation, Taliban schools etc. When read together with the story of the applicant, it was difficult to accept that the Taliban would approach a stranger like the applicant for carrying a bomb.[19]

(f) There was no further threat from the family of Sehrish who had since married.

18.Having considered the evidence, the adjudicator did not accept that the Head had asked the applicant to work for the Taliban. She did not accept that there was threat to the applicant as he claimed.

19.The adjudicator did not accept there was harm of any kind in Pakistan for any reason. There was no substantial ground that the applicant would be subject to CIDTP. Similarly, the basis of BOR 2 was not substantiated. BOR 3 and BOR 2 grounds failed.

20.Given that there was no harm of any kind in Pakistan. The applicant was not in well-founded fear of persecution arising from the Refugee Convention. This claim failed.

Judicial Review

21.The applicant filed the leave application on 21 December 2018. In his affirmation, he stressed that his life was threatened by the Taliban and Israr. He would be in danger if returned to Pakistan.

22.In this application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB and the Director were reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

23.The adjudicator had analyzed the evidence and pointed out the reasons which affected the applicant’s credibility. She found that the applicant was not credible. The events claimed by the applicant, in particular the threat by the Head, did not occur. She was not convinced that the applicant was in fear of any harm as he claimed.

24.In my view, her conclusion is reasonable. It is consistent with that of the Director. There is no error of law and procedure in both decisions.

Conclusion

25.I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.

Dated the 19th day of November 2020.

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19 November 2020 Khan Usman Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 November 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9627/17/12/294/P1869 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2578/17 (Formerly RBCZ 11248/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] For details see paragraphs 2-7, the decision of the Director.

[2] For details see paragraphs 14-15, the decision of the Director.

[3] By a letter dated 10 November 2017.

[4] Bara was about 40 km from his native village, Nowshera.

[5] It was 100 km from Nowshera.

[6] It was 60 km from Rawalpindi.

[7] This occurred a few days before meeting the Head.

[8] Paragraphs 11.5-11.21, the decision of the Director.

[9] Paragraphs 11.23-11.38, the decision of the Director.

[10] Paragraphs 19-20, the decision of the Director.

[11] Paragraphs 22, the decision of the Director.

[12] Paragraphs 23.3-23.5, the decision of the Director.

[13] Paragraphs 24, the decision of the Director.

[14] Paragraphs 25-35, the decision of the Director.

[15] Paragraphs 27 & 42 the decision of the TCAB.

[16] Paragraphs 31, the decision of the TCAB.

[17] Paragraphs 36-38, the decision of the TCAB.

[18] Paragraphs 41, the decision of the TCAB.

[19] Paragraphs 43, the decision of the TCAB.