Shahzad Amir v. Torture Claims Appeal Board

HCAL 262/2017

[2018] HKCFI 877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 262 of 2017

BETWEEN

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 33-year-old national of Pakistan who entered Hong Kong illegally and was arrested by the police on 9 April 2009.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim on 12 April 2009 with the Department on the basis that if he returned to Pakistan he would be harmed or killed by certain distant relatives of his family over a land dispute in Pakistan.  He was subsequently released on recognizance pending determination of his claim.

2.The applicant was born and raised in Village Surkhpur, Gujrat District, Punjab Province, Pakistan as the eldest son of his family which has farmed on a piece of farmland in the village owned by his father, and as the eldest son in the family he stood to inherit it from his father, but the farmland has also been the subject of disputes between his family and certain distant relatives who were wealthy land owners and influential people who coveted that land even before he was born, and of which he had witnessed several fights over the dispute when he was small.

3.After finishing school the applicant first assisted his family working in the farmland and then as a causal worker for six to seven years.  One day in 2008 these distant relatives together with other men came to his home looking for him with threats of violence that he had to escape from the backdoor and fled to a neighboring village for several days before he dared to return home.  Thereafter there were six similar incidents when he was ambushed by those relatives and assaulted by them with wooden sticks causing minor injuries to him, and of the first few incidents he did report to the police but to no avail as he believes was due to the influences of those relatives in his village.

4.By late 2008 the threats from these relatives escalated to the extent that they had seized the farmland and built a wall around it although it was still in his father’s name, and that they also cut off their water supply.  Then one night in January 2009 when they came to the applicant’s house looking for him, they shot and killed his brother-in-law when he refused to disclose the whereabouts of the applicant after he had fled to Head Marala where he hid for one and a half month.  Eventually the applicant decided to leave Pakistan for his own safety for Mainland China and from there he sneaked into Hong Kong on 9 April 2009 where he subsequently lodged his non-refoulement claim with legal assistance under the Duty Lawyer Service.

5.By a Notice of Decision dated 6 May 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), 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”). 

6.In his decision the Director found numerous discrepancies and inconsistencies in the applicant’s accounts of the land dispute and the alleged incidents which he detailed in paragraphs 11 – 16, and that on credibility alone the Director found that he has failed to show substantial grounds for believing a reasonable degree of likelihood or genuine or real risk of harm that he claims to fear if he is to return to Pakistan, but nevertheless proceeded to assume that even if his claim were genuine, objective Country of Origin Information (“COI”) show that state protection would be available to the applicant if resorted to upon his return to Pakistan, and that internal relocation would also be available in other areas of Pakistan which has a large population of 196 million people spread over a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant to live and work away from his home village in cities such as Lahore or Karachi where he would be free from any threats from those relatives of his.

7.By a Notice of Further Decision dated 5 December 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any additional grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”). 

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 15 May 2015 and for which he attended two hearings on 23 December 2016 and 16 January 2017 before the Board.  On 19 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board similarly found the applicant’s evidence full of contradictions, illogical and incredible as detailed in paragraphs 26 – 38 of the decision, but that in any event objective COI show that the Pakistani government has taken practical steps to monitor the conduct of the police and improve their effectiveness, and hence state protection would be available upon his return to Pakistan, and that being an able-bodied and relatively young man with years of working experience, it would not be unduly harsh for him to live anywhere in Pakistan away from his home village to avoid those distant relatives of his.  

10.On 2 June 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he listed the following grounds for his intended challenge which can be summarized as follows:

(1) the Board has unlawfully fettered his discretion by refusing his appeal;

(2) the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) the Board’s decision in refusing his appeal is unreasonable or irrational in public law or the result of procedural error or unfairness; and

(4) the Board has failed to apply high standards of fairness in dealing with his appeal. 

11.However, it is plain that all of these grounds are just broad and vague statements that without any particulars or specifics provided by the applicant, it is not easy to discern what error of law or procedural unfairness that he asserts the Board has made in its decision. However, in the same Form 86 as well as his supporting affirmation of the same date the applicant referred to these two points:

(a) that the hearing bundle of documents provided to him by the Director for his appeal before the Board are all in English and that it was only six days before the scheduled hearing on 16 January 2017 and hence there was insufficient time for him to prepare for his appeal; and

(b) that the Board had significantly relied on sources of news not officially recognized or was simply hearsay or outdated resulting in groundless speculation that it would be safe for him to return to Pakistan. 

12.However, as noted above and as shown by the Board’s record, that hearing on 16 January 2017 was the second hearing which was adjourned from the first scheduled hearing on 23 December 2016, hence the hearing bundle must have already been provided to the applicant prior to the first hearing in December 2016 and not on 10 January 2017 as asserted by him, and therefore he would have had much more than six days to prepare for the hearing.  In any event, he must have been familiar with most of those documents in the bundle such as the Director’s decision, his own torture claim form and other documents presented on his behalf by his legal representation under the Duty Lawyer Service, and his interview screening records, all of which he would have read before while he still had legal assistance.

13.Furthermore, if indeed he had any issue with the hearing bundle as he claimed for his appeal, he never raised it at all during the hearings when he appeared before the Board, as its decision recorded as follows:

“ 26. In order to be fair to the Petitioner, an oral hearing session was conducted so as to enable the Petitioner to supplement whatever information he omitted to say from the records in the file.

27. After explaining to him the purpose of the oral hearing, he indicated he had nothing to say.

28. In view of the serious allegations against those officers who had helped him in processing his application and with a high standard of fairness as required, I have arranged for all the officers and interpreters to be present at the first hearing.  I told the petitioner that since he made allegations against them, he was at liberty to call them to give evidence to see if they agreed to his allegations.  The Petitioner did not call any of them.”

14.As for his complaint about the Board relying on unofficially recognized or hearsay or outdated COI, again the applicant has failed to provide any particulars or specifics in support, and upon examining those COI listed by both the Director and the Board in their assessment that it would be safe for the applicant to return or relocate to Pakistan, I am unable to discern anything amiss from their reliance of these COI or anything that may corroborate his complaint.

15.In the premises and for these reasons, I do not find any merit or basis in any of the proposed grounds of the applicant, and upon rigorous examination and anxious scrutiny of the decisions of both the director and the Board, nor do I find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.In conclusion I am therefore 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 27^th day of April 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