Hussain Tanveer v. Torture Claims Appeal Board and Another

HCAL 827/2017

[2018] HKCFI 1320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 827 of 2017

BETWEEN

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 present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 36-year-old national of Pakistan who entered Hong Kong illegally on 29 August 2009 and was arrested by the police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim on 31 August 2009 on the basis that if he returned to Pakistan he would be harmed or killed by his cousin over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Hanj, Tehsil Khariyan, Gujrat District, Punjab, Pakistan where his father and a brother still live.  After graduating from university he worked as a department manager in a garment factory until 2009 when he came to Hong Kong.

3.In 2003 his father distributed his land in the village to the applicant and his five brothers in equal share with each getting two acres.  In 2005 after the government had built a road adjacent to the applicant’s land, the value of his land had increased substantially and became the subject of dispute with his cousin AZ who was a wealthy and influential man in the village and who coveted his land and demanded that the applicant exchanged it with AZ’s father’s land, and when the applicant refused, a fight broke out between the two of them until they were separated by other villagers, and before AZ left he threatened to kill the applicant if he still refused to exchange his land with his father.

4.After the fight the applicant went to take shelter in his factory in Karachi to avoid further confrontation with AZ, but soon AZ would come with his men to press him for the land exchange with further threats, and the applicant therefore left Pakistan for Greece where he stayed for several months before returning to Karachi when his employer offered him shelter and protection from AZ.

5.For the next three years the applicant stayed in Karachi with no further incidents with AZ, but when his mother passed away in 2008 and he returned to his home village for her funeral, AZ again harassed and threatened him for the land exchange, and when the applicant still refused, he was attacked by AZ and his men causing cuts and bruises all over his body until other villagers intervened, and before he left AZ threatened to kill him next time when they met.

6.As a result his father advised him to leave Pakistan for his own safety, and so on 26 August 2009 the applicant departed Pakistan for Mainland China, and from there he sneaked into Hong Kong on 29 August 2009 when he subsequently lodged his claim, and for which he eventually completed his Non-refoulement Claim Form on 26 November 2014 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 17 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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”).

8.In his decision the Director found the low intensity and frequency of past ill-treatment from AZ indicative of low level of future risk to the applicant upon his return to Pakistan, that his dispute with AZ is a private family matter without any evidence of any involvement of the state or police in AZ’s threats that state protection would be available to him if resorted to, and that objective Country of Origin Information show that reasonable internal relocation alternatives are available in Pakistan with a large population of 196 million people spread across a vast territory of more than 796,000 square kilometers that the applicant can move to areas away from his home village such as Lahore or Karachi where he can safely live and work free of any treats from AZ.

9.On 2 March 2015 the applicant filed his appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”) and attended an oral hearing on 4 December 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator.  On 5 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found even on the facts of the applicant’s own case that it would be unlikely that after all these years that AZ would still have any adverse interest in him, or that AZ would have the resources or manpower to locate him all over Pakistan if he is to relocate to other areas away from his home village, and concluded that he has failed to establish a case for non-refoulement under any of the applicable grounds.

11.On 10 March 2017 the Director by letter invited the applicant to submit additional facts which may be relevant to his non-refoulement claim on all applicable 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”), and in the absence of any response from the applicant, the Director by a Notice of Further Decision dated 28 March 2017 again rejected his claim.

12.On 5 April 2017 the applicant again appealed to the Board against the Director’s further decision, and on 27 October 2017 the Board dismissed his appeal without any further hearing upon finding no additional facts or grounds had been submitted by the applicant in his appeal relevant to BOR 2 risk.

13.On 31 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he complains that the Director and the Board reached their decision without proper consideration of his claim or giving sufficient weight to COI to assess the dangerous situation in Pakistan, and in his supporting affirmation of the same date he merely exhibited copies of their decisions without elaborating further his said complaint or put forward any further grounds for his intended challenge.

14.I do not find any merit or basis in what appear to me just very vague and bare assertions of the applicant without any substance or elaboration.  As both the Director and the Board have clearly found on the facts of the applicant’s own case that his land dispute with AZ was a private matter without any involvement of the state or the police that plainly state protection would be available to the applicant if the threats from AZ still persisted upon his return as well as the availability of reasonable internal relocation to other parts of Pakistan, in which case there cannot be any justification to the applicant being afforded non-refoulement protection in Hong Kong, and that any purported reliance on COI to assess whatever other dangerous situations may be in Pakistan but not relevant to his claim seems to me futile and meaningless in the circumstances.

15.In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not 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.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 15^th day of June 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