Kanwal Gulnaz v. Torture Claims Appeal Board and Another

HCAL 973/2017

[2018] HKCFI 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 973 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 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 30-year-old national of Pakistan who entered Hong Kong illegally in May 2012 and surrendered to the Immigration Department on 13 January 2015 and subsequently lodged a non-refoulement claim on 20 May 2015 on the basis that if she returned to Pakistan she would be harmed or killed by her paternal uncle over a land dispute.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Hazro Tehsil, Attock District, Punjab, Pakistan where her father was a farmer who owned the residential land of his family home and the adjacent farmland in the village.

3.One day in January 2011 her parents were killed by a bomb blast when they were on their way to Kohat City.  Several months thereafter the applicant’s uncle came to her home with some men said to be members of the political party the Pakistan Peoples Party (“PPP”) and told her that as her father owed them money and demanded that the applicant repay the debt for her father by transferring her father’s land to them, and when she refused, they pointed their pistols at her head and started beating her until she yielded to their demand and signed the land transfer to her uncle.  She was then told to leave her home and was threatened not to go to the police or else she would be killed. 

4.As a result the applicant went to take shelter at her friends’ places in Rawalpindi and Karachi, but when she started receiving threatening phone calls from her uncle, she decided that it was no longer safe for her to remain in Pakistan and she therefore left for China on 22 May 2012, and from there she sneaked into Hong Kong in May 2012 where she subsequently lodged her non-refoulement claim, and for which she later completed her Non-refoulement Claim Form on 2 March 2017 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 23 June 2017 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 her absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 the level of risk of harm from her uncle upon the applicant’s return to Pakistan as low as it has been more than six years after she had signed the land to him and that he should no longer have any adverse interest in her after all these years, that it was a private financial dispute between her and the uncle without any state or police involvement that state protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 201 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young person to move safely to other areas away from her home district such as Karachi or Rawalpindi where she had resided before without any incidents.    

7.On 26 June 2017 the applicant filed her appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended an oral hearing on 20 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. At the hearing the applicant also disclosed that she has since married a fellow Pakistan man from Gujrat who is also an asylum seeker in Hong Kong.  On 20 October 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted on the facts of the applicant’s case that there might have been a dispute between her and her uncle back in 2011 but the risk of harm or danger from him since was considered as low after all these years and given the fact that he never followed up with his threats when the applicant was living in Rawalpindi and Karachi before she left Pakistan, and that in any event state and police protection would be available to her if resorted to, and that she can relocate safely to Rawalpindi, Karachi or Gujrat now that she is married to a fellow Pakistan man from that city. 

9.On 29 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1)     that the Director failed to give proper weight to the presence of state acquiescence when the applicant was tortured with the collusion of the police and the state law enforcement agencies in the consideration of her claim;

(2)     that the director failed to take into proper account of the relevant COI in the consideration of her claim;

(3)     that the Director failed to give sufficient weight to the ineffectiveness of the police in Pakistan to protect its citizens in the consideration of her claim;

(4)     that the Director failed to take into account of the relevant COI in the consideration of her claim;

(5)     that the Director failed to take into account of the serious problems of corruptions and incompetency of the state or government of Pakistan in the consideration of her claim;

(6)     that the Director failed to apply high standard of fairness in the consideration of her claim and therefore his decision was Wednesbury unreasonable in the public law sense; and

(7)     that the adjudicator failed to make sufficient enquiry into her case before reaching the decision and failed to give her sufficient chance to provide relevant evidence in support of her claim.  

10.These are all very broad and vague assertions of the applicant containing numerous key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI, or what is the relevancy of state acquiescence or collusion to her claim when there was never any evidence of any involvement of the state or police in her uncle‘s actions.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

11.As it has clearly been found and accepted in the decisions of both the Director and the Board that the risk of harm from the applicant’s uncle is a localized one, and that it is not unreasonable or unsafe for the applicant to relocate to another part of Pakistan, there is simply no justification for affording her non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.   

12.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.

13.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 her leave application.

Dated the 20^th day of July 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