SHAH ZAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 137/2019

[2021] HKCFI 3480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 137 of 2019

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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 the Applicant being absent 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 from Shenzhen on 20/2/2016. He was arrested by the police on the same day. He lodged the non-refoulement claim in this case on 22/2/2016.

Background

2.  The applicant was born on 1/9/1992 in Attock, Pakistan[1]. He was single.  He was a Muslim. He received education for about 8 years. He had no work experience. His father was in Pakistan. He had no sibling. He supported PTI[2]. He joined their rallies and canvassed votes for the party.

3.  Around 2015, he came to know Zubair (“Z”) while both were studying at the primary school. They became good friends and played cricket every Sunday. “Z” was a Christian. He accompanied “Z” to his church 2—3 times a month. He did not join the church activities.

4.  One day in October 2015, while he and “Z” came out from the school, he saw two villagers in a car. He rarely had contact with them in his village. He had no grudge against them. He heard from his father that they affiliated with the Taliban. He thought they knew “Z” was a Christian.

5.  A few days later, these 2 villagers were outside the church at which the applicant waited for “Z”. The applicant thought they might assume that he had been converted to Christianity as he and “Z” were close friends.

6.  About 3 days later, at about 10 p.m., the applicant was attacked by the 2 villagers while on his way to a shop. They called him “kafir” (non-believer). They beat him for about 5 minutes. They threatened to inform the Taliban about his conversion to Christianity. The applicant denied. He had bruises over his body. The next day, he was treated by the doctor at the village clinic. He was given some injection and medicine. He recovered in a week. He did not report to the police as they were corrupt.

7.  His father took him to Village Malah. He stayed with an uncle there until he left Pakistan. Since then, he did not go to school anymore. He did not contact “Z” from then onwards.

8.  His uncle’s son helped to arrange his passport and visa to China through an agent. He left Pakistan on 14/2/2016 for Guangzhou by air. There was no problem. He then travelled to Shenzhen. He sneaked into Hong Kong on 20/2/2016.

9.  He was never harmed by the Taliban. He had no direct encounter with them. He only heard that the Taliban were a terrorist group targeting Christians in Pakistan. He did not know whether “Z” was ever threatened or harmed by the 2 villagers.He did not think the police would help him as the Taliban were strong. He had no family ties elsewhere in Pakistan. He would be easily located by the Taliban.

10.  He feared that the 2 villagers might harm him as they saw him with a Christian friend “Z” near a church. He was also afraid that the Taliban might harm or kill him as they might suspect that he was converted to Christianity.

The Decision of the Director

11.  The Director found that there was no real risk of harm from the 2 villagers and the Taliban for the following reasons: [3]

(a) The applicant had been attacked by the 2 villagers once. He recovered in a week. He then relocated to Village Malah. He did not encounter them anymore until he left Pakistan. He had no direct encounter with the Taliban. He was never harmed by them. There was no ill-treatment to a minimum level of severity.

(b) The applicant played cricket with “Z” for quite some time. The 2 villagers had never harm or threaten him or “Z” before October 2015. Even after the attack in October, there was no evidence that the 2 villagers or the Taliban had continued to locate him. The 2 villagers had no intention to carry out the threat as they asserted.

(c) The applicant speculated that the 2 villagers might assume that he was converted to Christianity. The basis was that they saw the applicant waiting for “Z” outside a church. The applicant had never clarified with the 2 villagers. The fear of the Taliban was pure speculation with no evidence whatsoever. In fact, he had not encountered the Taliban.

(d) The applicant asserted that it was unusual for a Muslim to have a close Christian friend in Pakistan. However, he continued the friendship with “Z” despite the suspicion of his conversion to Christianity. Shortly after the attack before he left Pakistan, he went to see “Z” again. All these were inconsistent with any fear of imminent danger as he asserted.

(e) The COI revealed that there was corruption and abuse of power in the police. The law was not enforced efficiently. However, there were improvements in training technical skills and human rights protection for the police. The NAB[4] was tasked to tackle corruption. Citizens could complain to higher ranking officers if there was failure of duties. The law protected independent Judiciary. Individuals might petition the courts to seek redress of human rights violations. The Ombudsman office was established to address grievances of maladministration. There were news reports that the police had taken action against the Taliban and Islamic militants.

(f) The threat to the applicant was localized. The threat from the 2 villagers were private in nature. There was no evidence that any public official was involved. There was no evidence that the conduct of the 2 villagers were instigated, consented or acquiesced by any public officer. There was no evidence that the police would tolerate or unwilling to discharge their duties against offenders or the Taliban. The applicant was not targeted. He could leave Pakistan without any problem.

(g) Pakistan was a large country with over 201 million people. It was difficult to locate the applicant. The law in Pakistan permit relocation. It would be viable for the applicant to relocate to Faisalbad or Karachi.

12.  The Director rejected the applicant’s claim on all grounds.[5]

The Decision of TCAB

13.  The applicant gave evidence during the TCAB hearing on 8/10/2018.[6]  The adjudicator rejected his appeal on 6/12/2018. 

14.  The adjudicator found that the applicant was not credible for these reasons: [7]

(a) The applicant claimed that he was mistaken to have been converted to Christianity. The reasons were that he had been with a Christian friend (“Z”) and went near a church waiting for “Z”. However, he had never considered converting to Christianity. He went to a mosque on regular basis in Pakistan. The adjudicator was not convinced that the circumstances could cause the misunderstanding. Had the relationship been a problem, the applicant should have sought assistance from the elders.

(b) There were about 4 Christians in the primary school among 200 Muslim students. The applicant had been spending a lot of time with “Z” at school. He played cricket with “Z” on a regular basis outside school. For quite some time, there was no suspicion that the applicant was converted to Christianity. The reasonable explanation was that people in the area were not troubled by this inter-religious friendship. The adjudicator did not accept that when the 2 villagers saw the applicant and “Z” together, they would suspect that the applicant was converted given that everyone had already known about the applicant’s friendship with a Christian (“Z”).

(c) The applicant was a good friend of “Z” at school and outside school. It was an unusual friendship. If this friendship was so problematic, it was impossible that the applicant’s family, the fellow villagers and the Taliban were not aware of it for such a long time.

(d) In his NCF and the evidence to the adjudicator, the applicant asserted that the Taliban were involved in persecuting him. However, during the screening interview, the applicant said that the Taliban was not involved. The adjudicator found this a serious inconsistency going to the heart of the fear.

(e) In his NCF, the applicant asserted that his problem was caused by the 2 villagers who saw him from their car. He told the adjudicator that he was seen by the Taliban and his friends. There were 3-4 or 7-8 people in the vehicle. The applicant explained that the 2 villagers were his friends whereas he asserted in his NCF that he did not know the 2 villagers in the car.

(f) In his NCF, he asserted that the 2 villagers saw him twice and did nothing. He was attacked a few days later. However, he told the adjudicator that he was seen once and beaten in the same evening.

(g) According to his written signification, the applicant asserted that he was beaten a few times. However, in the NCF, he asserted that he was beaten once.  At the TCAB hearing, he was beaten twice.

(h) The adjudicator was doubtful about the age of the applicant in the primary school. He turned 23 in 2015 but was still in the primary school. The applicant said “Z” was about 20-22 at the time of the incident. He was unable to explain why “Z” also commenced school at such age.

15.  The adjudicator found that the applicant was not a witness of truth. His story was not credible. There was no threat from the 2 villagers or the Taliban.  There was no real risk of harm if he returned to Pakistan.

16.  The adjudicator dismissed the appeal. The applicant’s claims were not made out.[8]

Judicial Review

17.  The applicant filed the leave application on 14/1/2019.  He disagreed with the decisions of the Director and the TCAB.  In his affirmation, he mainly criticized the approach of the Director. He also pointed out that the adjudicator had not given sufficient chance for him to arrange relevant evidence for his claim and the appeal.

18.  A hearing was fixed on 13/9/2021 before this court. The applicant was absent. This court would consider the leave application on paper.

19.  The Court of Appeal has held that once an appeal to the TCAB is pursued by a claimant, the decision by the TCAB will supersede the decision of the Director.  The decision of the TCAB is the final decision. The decision of the Director is not susceptible to judicial review. I would therefore concentrate on the decision of the TCAB.  [9]

20.  The applicant first filed his claim on 22/2/2016. He completed his NCF on 4/9/2017. He attended the screening interview on 27/9/2017. He had more than 1½ years to prepare for his claim.

21.  The adjudicator had arranged three oral hearings for the applicant. In the first two hearings in May and August 2018, the applicant was absent. He alleged that his child was sick. The adjudicator finally rescheduled the hearing to October 2018 despite there was no documentary proof of his child’s condition.  There was ample time for the applicant to prepare for the appeal.

22.  The adjudicator had asked questions during the oral hearing. The adjudicator pointed out the fundamental doubtful points and the inconsistencies to the applicant. The applicant was given ample time to respond.

23.  Based on the reasons summarized in paragraph 14 above, I agree with the adjudicator that the applicant was not credible. The adjudicator was justified in rejecting the factual basis of the applicant’s claim. There was no need to consider individual grounds of claim, State protection or relocation. I do not find any error of law or procedure in the TCAB decision.  It is reasonable given the evidence.

Conclusion

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

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