Malik Ghulam Rasool v. Torture Claims Appeal Board

HCAL 336/2017

[2018] HKCFI 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 336 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 44-years old Pakistani man who entered Hong Kong illegally on 27 October 2012 and was arrested by police on the following day.  On 31 October 2012 he raised a claim for non-refoulement protection with the Immigration Department on the ground that he fears he would be harmed or killed by two men known as Shahbaz and Nika and their associates if he is refouled to Pakistan.  

2.The applicant was born and raised in Bijli Ghar, Ambawali Chapri, Mohala Shah Abdal, Sialkot, Punjab, Pakistan where he used to reside with his parents and four siblings, and where he worked as a tailor.

3.One day in October 1999 when on his way home the applicant witnessed his brother Jamil being assaulted by Shahbaz and Nika over their money dispute and from which Jamil was taken to the hospital where he subsequently died from his injuries.  The applicant then reported the matter to the police naming the two men as the murderers of his brother, and whilst the police were conducting their investigation, the two men repeatedly threatened the applicant’s father to withdraw the case and to reconcile with them, and when he refused he was shot and killed by Shahbaz’s brother and two other men one day in May 2001 in front of his shop.

4.However, when the applicant reported the murder of his father to the police, he was told to resolve the dispute with Shahbaz and Nika and that the police would not carryout any investigation.  Thereafter the applicant and his other brother became the constant targets of intimidation and threats from those two men, and in 2003 one of the witnesses to the murder of the applicant’s father was killed by men whom the applicant believed were sent by Shahbaz and Nika.

5.Thereafter the applicant and his family became so fearful for their own safety that they sold their house and moved to another place some 40-minutes’ drive away.  There were no further incidents until one evening in February 2008 when Shahbaz’s brother andtwo other men came on motorcycles and fired three shots at the applicant but missed him.  Afterwards the applicant decided to leave Pakistan for his own safety, which he did on 18 March 2008 when he flew to China where he stayed for about a month until his visa expired and returned to Pakistan where he stayed in his friend’s place in Lahore where he subsequently found work as a tailor.

6.For about one year the applicant did not have any further encounters with Shahbaz and Nika or their men, but in 2009 his mother warned him that it was no longer safe for him to live in Pakistan and told him that she would make arrangements for him to go to China again, which he did on 28 May 2009 by flying into Ning Bo where he stayed for about one year until May 2010 when he returned to Pakistan to visit his sick mother.  Afterwards he returned to work as a tailor in Lahore as before.

7.Although the applicant’s stay in Lahore had since remained uneventful and without any disturbances from Shahbaz and Nika, his mother again urged him to leave Pakistan and eventually arranged for him to fly to Guangzhou on 1 January 2012 where he stayed with a friend for about 10 months during which his mother died from her illness.  The applicant then decided to come to Hong Kong on his friend’s advice, which he did on 27 October 2012 from Shenzhen on a boat when he was subsequently arrested by the police and raised his non-refoulement claim with the Immigration Department.     

8.By a Notice of Decision dated 12 April 2016 the Director of Immigration (“the Director”) rejected his claim on then all 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 treatment or 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”).

9.In his detailed decision the Director found that as there have been no further attempts to harm the applicant or other members of his family since the last incident in early 2008, the risk that he would face from Shahbaz and Nika upon his return to Pakistan would be low, and with no evidence indicating any involvement of the police or any political parties in any of those incidents, state protection would be available to further lower or negate such risk, while objective Country of Origin Information (“COI”) show that internal relocation would be reasonable or not unduly harsh for the applicant to return to live and work safely in other parts of Pakistan.

10.By a Notice of Further Decision dated 19 April 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any additional facts 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 had already filed his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which he did on 22 April 2016, and on 10 May 2017 he attended an oral hearing before the Board in person and gave evidence and answered questions put to him by the Board.  On 24 May 2017 his appeal was dismissed by the Board which confirmed the decisions of the Director.

12.In accepting that the applicant believes that both his father and brother were killed as a result of disputes with Shahbaz and Nika, as confirmed by his reports made to the local police and produced as evidence, the Board similarly found that the likelihood of him being harmed by them is low as those killings took place many years ago, that none of the other members of his family have since been harmed by them despite residing all along in the same area, and that the applicant himself was able to live peacefully for some 13 years in Lahore before being arranged by his mother to come to Hong Kong without giving any reason or explanation as to why she would in 2012 still believe that it was not safe for him to remain in Pakistan.     

13.The Board further found that whilst there is no evidence to suggest any connection between the local police and Shahbaz and Nika, the applicant can always seek assistance from the state as the COI before the Director show that there is an established system for people in Pakistan to ventilate such grievances or to seek the state protection, and that should the applicant remain fearful of returning to his hometown, there are ample objective COI showing that there are many other places in Pakistan where he can relocate such as Lahore where he had lived and worked safely for many years without any disturbances from Shahbaz and Nika or their associates, or Islamabad where the majority of its population speaks his same language.     

14.Nevertheless the applicant on 28 June 2017 filed his Form 86 for leave to apply for judicial review of the Board’s decision on the following grounds:

(a)  procedural unfairness in refusing his appeal and failure to meet the greater care and duty owed to him being an unrepresented claimant;

(b)  late provision of the hearing bundle with no interpretation thereby causing confusion to him at the hearing; and

(c)  improper reliance on source of news not officially recognized or is hearsay and onoutdated cases leading to groundless speculations about his safe return to Pakistan.   

15.The first ground is however so broad and vague that without any particulars or specifics provided by the applicant, it is not clear as to exactly what procedural unfairness that he is referring to in the process of his appeal before the Board, and accordingly I find that the applicant has not shown any basis or merit in this ground. 

16.As for the second ground in respect of the hearing bundle, it is relevant to note that the Board has stated this in paragraph 6 of its decision:

“ An oral hearing was conducted on 10 May 2017. The Applicant appeared in person with suitable interpretation. He testified at the hearing and adopted the information contained in the following documents as evidence in support of his claim:

(a) The Applicant’s Non-refoulement Claim Form dated 12 February 2016 (“NCF”);

(b) The record of his Screening Interview dated 30 March 2016 and 6 April 2016; and

(c) Letter from the Duty Lawyer Service enclosed with supporting documents dated 23 March 2016.”

17.It seems clear to me therefore that the applicant should already be well familiar with all the documents in the hearing bundle as they were either prepared by his then lawyer under the Duty Lawyer Service based on his instruction, or of his earlier interview record with the Immigration Department which he was later supplied with a copy when he was still legally represented.

18.Furthermore, he was clearly able to testify at the hearing before the Board with proper interpretation and there does not seem to me any suggestion or indication of any problem or complain that he may have with interpretation or in answering questions from the Board at any time during the hearing.  I do not see any basis or merit in this ground either. 

19.As for his third ground, again without providing any particulars or specifics as to which parts of the COI relied on by the Board were either hearsay or outdated, it is not possible to know how such reliance was improper.  It seems clear to me that the Board did refer to those COI relied on by the Director in its consideration of his claim and the availability and reasonableness of internal relocation alternatives for him as listed in the Appendix to the Director’s decision, and a close examination thereof reveal that they were all from well-recognized and official sources such as the UK Visas and Immigration, the US Department of State or the Punjab Provincial Government.  Accordingly I am unable to see any basis or merit in this ground either.

20.These grounds aside, in undertaking my own consideration of the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do notsee any error in law or procedural unfairness in either of their decisions, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.

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 29th 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