Gulzar Muhammad v. Torture Claims Appeal Board and Another

HCAL 220/2017

[2018] HKCFI 67

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 220 of 2017

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

Following;

Order by the Honourable Mr. Justice Yau :

Leave to apply for Judicial Review is refused.

Observations for the Applicant (Order by the Honourable Mr. Justice Yau):

1.The applicant is a Pakistani male, born in Village Jatlan, Mirpur District of Pakistan.  He is married and his wife is a Hong Kong citizen living in Hong Kong.  He worked as a labourer for about 4 years and a lorry driver for about 8 years in Pakistan.

2.In Pakistan farmers made use of a canal system in accordance with a roster to irrigate their farm land.  On 7 or 8 May 2009, the applicant and his cousin, Imran, had a dispute with Mr Sadat Ali (“Ali”) because Ali insisted to irrigate his own farm when it was the rostered day for Imran to use the system.   Imran refused to allow Ali to do so.

3.Ali owned 70% of the land in the vicinity of Village Jatlan and was famous and influential. He and 1 of the 2 men who accompanied him were armed and Ali shot Imran.  The appellant ran away to tell his uncle.  When they returned to the scene they found Imran unconscious.  A report was made to the police and Imran died after admission to hospital.

4.The police took no action.  The appellant suspected that Ali had bribed the police.  When the appellant, his uncle and many villagers protested the police charged Ali with murder.  Some villagers told the appellant that if he testified in court Ali would kill him.  The appellant ignored the threat as he was determined to get justice for his cousin. 

5.The trial was set down for 26 or 27 July 2009.  A couple of weeks before that day the appellant was attacked in the street by 4 unknown men who threatened to kill him if he testified in court.  On the night before the hearing, Ali and the same 4 men came to the appellant’s home and made the same threat. 

6.On the day of the hearing, when the applicant was about to board a bus to go to court he was stopped and beaten up by the same 4 men and another 2 men with wooden rods for 15 minutes.  They warned that things would go worse if he attended court.  The applicant was taken to a clinic by a friend and he had a fractured finger and bruises which took a month to recover.  It was too late for the applicant to go to court after the medical treatment.  He made a report to the police about the attack but was told by the police that it was safer for him not to testify.

7.At the suggestion of his mother the applicant moved to another town called Hafiz Abad where he lived with his relatives for 11 days.  He encountered no troubles there.  He then moved to Rawalpindi.  There were also no untoward incidents but he heard others saying that people were looking for him.  Taking heed of the advice of his family and relatives the applicant left Pakistan by bus for China on 13 October 2009 with the help of an agent he met in Rawalpindi.  

8.The applicant sneaked into Hong Kong from China on 27 October 2009 and was arrested by the police on the same day.  He was referred to the Immigration Department and he lodged his torture claim on 29 October 2009.  He was released on recognizance on 8 November 2009.  On 26 January 2010 the applicant was arrested by the police for taking employment unlawfully.  He was convicted of the offence on 24 February 2010 and sentenced to 2 months imprisonment.  A removal order was issued against him on 22 April 2010 and served on him on 27 April 2010.  He was released on recognizance  on 1 May 2010 for his non-refoulement claim to be considered. 

9.In connection with his non-refoulement claim, the applicant provided a Torture Claim Form and a Supplementary Claim Form and attended 2 interviews with an officer of the Immigration Department.  He was assisted by the Duty Lawyer Service (“DLS”).  His non-refoulement claim was refused by the Director of Immigration by a Notice of Decision dated 27 May 2016.  His appeal/petition to the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“the Appeal Board”) which was lodged on 6 June 2016 was rejected on 5 May 2017 after a hearing.

10.According to the information the applicant received from his family, as a result the efforts of Imran’s family which included bribing the court, the murder case was still ongoing.  A witness is, however, required to give evidence in the case.  The applicant fears that his uncle will force him to testify against Ali while Ali has continued to tell his family that he will kill the applicant should he return to Pakistan.  The applicant cannot be relocated to other part of Pakistan because Ali will employ people to locate him and kill him.

11.The applicant asserts that he is a person of low class with no money, land or political links and is unable to fight against Ali who is from a rich family with links to the ruling party of Pakistan.

Conclusion

12.I have considered the evidence and decisions of the Director of Immigration and the Appeal Board.  They have looked into all the available grounds of non-refoulement claim of the applicant and I do not find any error in law or procedure.

13.The applicant submits in this application that he was not given any legal representation throughout his appeal/petition to the Appeal Board. While it is indeed the case that he was not legally represented in the appeal he was assisted by the DLS when his claim was being considered by the Immigration Department.  Despite having no such assistance in the appeal/petition the Appeal Board had given full assistance to the applicant and had considered all aspects of his appeal/petition.  The contention of the applicant that there was a clear violation of the principle of “high standard of fairness” has no merits.

14.The applicant complains that no language assistance was provided to him in his appeal/petition and when he was asked in a letter by the Immigration Department to provide additional facts or information to the department for consideration.  He alleges that the letter was too technical for a layman like him whose first language is not English to understand.  It must be pointed out that the letter of the Immigration Department though in English is not technical at all.  It should not be difficult for the applicant to seek help to have the letter explained to him.  The fact that the applicant is able to make a proper affirmation in English for this application serves as an example.

15.More importantly, despite no language assistance having been provided to the applicant his non-refoulement claim had been fully and fairly considered by the Immigration Department and the Appeal Board.

16.The applicant also relies on the ground that the Appeal Board has no reasonable basis to reject his credibility.  This concerns the finding of facts by the Appeal Board and this court does not see any justification to interfere with it.

17.There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.

Dated the 22^nd day of January 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