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HCAL 2921/2018
[2020] HKCFI 2875
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2921 of 2018
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Ehsan Ul Haq alias Haq Ul Ehsan |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background
1. The applicant was born on 13 February 1988. He was raised in District Mirpur, Pakistan. He had 6 siblings. His father was a doctor. They were all in Pakistan. He studied up to grade 9. He operated a business[1] from 2003-2008. He was an expert in repairing computer.
2. In late 2008, he received threats from some people of certain ‘Agency’. They wanted him to retrieve some secret information about the Indian army. He did not know the name of those people, the name of the ‘Agency’ and its political affiliation. He thought those people were from the government as the information they wanted would only benefit the government.
3. According to one of the men, the applicant was chosen because he did not need a visa to travel to Kashmir (Indian side), he could speak the local language, he was familiar with the location and his elder uncle could assist him over there.[2] However, during the screening interview, the applicant indicated that he had no connection with the Indian army and had no access to any secret information. He had never been to that part of Kashmir.
4. He did not know the details of the information. He thought it must be confidential state secret. He refused their request as it was dangerous. Since then, there was constant threats. One night around March 2009, he was attacked at home by several men in masks. He fainted. He was taken away and locked in a dark room for a week. He was beaten up many times during the detention. There was no visible injury as they put a book on his body to prevent direct contact. His left kidney was injured because of the assault.[3]
5. Eventually, he pretended to comply with them. He was released at an unknown place. He then walked for about an hour to a police station in Mirpur. The police refused to take his report. He thought the police was corrupt. He took a bus to hide in his friend’s place at Dadyal which was about 60 km from his home village.
6. While he was hiding at Dadyal, those men from the ‘Agency’ threaten his family. They threatened to kill him.
7. He left Pakistan for China smoothly in April 2009 on a business visa[4]. He stayed at China/Shenzhen for about 6 months and sneaked into Hong Kong in October 2009. He filed his non-refoulement claim and was granted recognizance.
8. Since he left Pakistan, his family had not informed him of the current situation there. He feared that those men from the ‘Agency’ would locate him if he returned to Pakistan. He could not relocate to Karachi which was controlled by gangsters. He was afraid those men would harm or kill him.
The Decision of the Director
9. The Director assessed his claim under USM.[5] The Director rejected his claim on 3 July 2015[6] and 24 February 2017[7]. The reasons were as follows:
(a) The Director concluded that the risk of harm was low[8]. The reasons were:
i. The applicant had never been to the Indian part of Kashmir. He had no connection with the Indian army. He had no access to any secret information.[9]
ii. The ‘Agency’ had asked other young men to perform the task after the applicant left Pakistan. The ‘Agency’ had not targeted his siblings to perform the task though they were of similar background. His family was not threatened or at risk. The ‘Agency’ had no intention to harm him.[10]
iii. After the assault and detention for a week, the applicant could walk for about an hour to report to the police. He could take a bus trip of about an hour to Dadyal. He did not seek medical treatment. This showed that the ill-treatment was not serious at all.
iv. The applicant was safe in Dadyal. He could leave Pakistan without any problem. This was indicative that he was not targeted by the ‘Agency’ or the State.
v. The applicant reluctantly agreed to comply with their demand after repeated assaults. He subsequently fled the country. At the time of the assessment by the Director, six years had elapsed. There was no reason for the ‘Agency’ to insist locating him for the task.
vi. He knew nothing about the task. He was not trained up for it. His belief about the background of the ‘Agency’ was mere speculation.
(b) The Director had considered various COI including those supplied by the applicant. The Director accepted that in Pakistan, there was corruption, extortion cronyism and embezzlement in the public sector. On the other hand, the Director noted that there were reforms with positive results. The conduct of the police in Mirpur was not the general pattern in Pakistan. There was no evidence of State acquiescence. In fact, the applicant chose not to report to other higher authorities. In all, the Director was satisfied that reasonable State protection was available.
(c) The law in Pakistan allowed internal relocation. Cities such as Lahore, Rawalpindi or Faisalabad were possible options. The applicant was young and with experience in business. It was not unreasonable for him to relocate.
10. Given the above, BOR 3 claim failed as there was no ill-treatment of minimum level of severity.
11. For persecution risk, the fear arose not on account of any Convention reasons. As the risk of harm was low, the fear was not well founded.
12. Apart from the harm which was not serious at all, there was no evidence of State involvement, instigation or acquiescence. Given reasonable State protection, the claim under s 37U of the Immigration Ordinance also failed.
13. The Director invited the applicant to make further submission on BOR 2 risk in February 2017. The applicant did not file any further evidence. The Director considered the BOR 2 risk on the existing information. The Director found no evidence of arbitrary deprivation of life. This claim failed.
The Decision of TCAB
14. The adjudicator held a hearing on 25 April 2016 in which the applicant elected not to give evidence. He rejected the claim on 9 November 2016.
15. The adjudicator opined that all the material facts alleged by the applicant were vague and could not support the claim. He did not accept the applicant’s story. He could have dismissed the claim on credibility alone. His main points [11] were as follows:
(a) The initial threat was on an unspecified date by unidentified person. The name of the ‘Agency’ was unknown. The kind of information to be retrieved was unknown.
(b) There was no particular as to the kind of language expected of him. How his uncle could have assisted. The applicant refused and was not attacked. There was no detail as to the threat that followed.
(c) There was no visible injury despite repeated assaults. His kidney was injured. He did not seek treatment. There was no medical evidence in support.
(d) He was released at an unknown place. There was no explanation how he could find his way back to the Thothal Chowki Police Station which was at Mirpur. He did not report to other higher ranking officer/authorities. According to the applicant, the police had not asked for a bribe. This could have due to the lack of details in his story.
(e) There was no detail about the subsequent threat to his family when he was hiding in Dadyal.
(f) The applicant stayed in China/Shenzhen for about 6 months and did not raise any claim for non-refoulement.
16. For torture risk under the Immigration Ordinance, the applicant’s evidence was very vague. It could not support that the ‘Agency’ and the assailants were from the State. There was no evidence of instigation, consent or acquiescence by the State. The applicant was not targeted and could leave Pakistan smoothly. There was no evidence of severe pain and suffering, physical or mental. [12]
17. The adjudicator considered various COI. He accepted there was reasonable alternatives of internal relocation in Lahore, Islamabad, Rawalpindi and Gujrat. He also concluded that there was reasonable State protection despite the existence of corruption. This claim failed.[13]
18. For BOR 3, there was no injury of ‘minimum level of severity’. There was reasonable State protection. The applicant could have relocated elsewhere in Pakistan. This claim failed.
19. For persecution risk, the adjudicator opined that the applicant was not within the meaning of “populace” in refugee law. The alleged assault was not because of any “Convention Category”. This claim failed.
20. The adjudicator extended the time for the applicant to file the notice of appeal. The applicant failed to file further evidence for BOR 2 claim. The adjudicator did not think it was necessary to hold another hearing given the history of this case. The adjudicator considered the BOR 2 claim based on all existing information. There was no evidence of arbitrary deprivation of life. This claim failed.
Judicial Review
21. The applicant filed the leave application for judicial review on 19 December 2018. There was no specific complaint in his affirmation. He did not point out any error in both decisions.
22. Given the evidence in support of the applicant’s claim, I agree with the decisions. They are reasonable. There was no error in law or procedure either.
Conclusion
23. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated the 12th day of November 2020.
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 12 November 2020
Ehsan Ul Haq alias
Haq Ul Ehsan
Applicant’s ref. no:
Nil. |
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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 12 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1903/15/7/87/P548 & BOR 281/17/3/54/P82
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1043/14 (formerly RBCZ 2671/09) & RBCZ 9001739/16
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Assemble computers, sell stationery and provide photocopying services.
[2] Paragraph 6.3 of the decision of the Director.
[3] Paragraph 6.6-6.10 of the decision of the Director.
[4] This was issued in 2008 for procuring garments and toys in China. Paragraph 6.18-6.19 of the decision of the Director.
[5] Paragraph 1 of the decision of the Director.
[6] On BOR 3, persecution risk and torture risk under Immigration Ordinance.
[7] On BOR 2.
[8] Paragraphs 13-16 of the decision of the Director.
[9] The applicant said so during the screening interview. Paragraph 13 of the decision of the Director.
[10] Paragraphs 6.26 of the decision of the Director.
[11] Paragraph 4, 35-38 of the decision of the TCAB.
[12] Paragraphs 9-16 of the decision of the TCAB.
[13] Paragraphs 17-22 of the decision of the TCAB.
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