Ahmed Mushtaq v. Torture Claims Appeal Board and Another

HCAL 100/2017

[2018] HKCFI 2312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 100 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 oral submissions by the Applicant in open court;

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 District Rawalpindi, Punjab, Pakistan on 13 January 1972. He received education up to college level in Pakistan, obtaining the degree of Bachelor of Arts in 2003 and the Certificate in Islamic Shariah Law in 2005.  He studied for the degree of Master of Laws in the Chinese University of Hong Kong in 2007 but did not complete the course.

2.The Applicant lived with his father and 4 siblings in Chachi Mohallah, District Rawalpindi and his mother had passed away.  He worked in his father’s grocery store from 1993 to 2000 and as an assistant lawyer and then a lawyer between 2003 and 2007.  He is a person who likes to help people in need and from 2005 to 2007 he was a representative of District Attock in the Women Aid Trust (“WAT”) which provides assistance to women and children to protect their rights and to fight for their justice.  The Applicant and his family members have not belonged to or associated with or taken part in any activities of any organisation or group in Pakistan. 

3.Zafar was a staff member of the Pakistan government telecommunication department in Azad Kashmir and was responsible for the public call offices (“PCO”) across the district which managed pay phones.  He regularly visited his family and children who lived in the neighbourhood of the Applicant.  In 2004 Zafar brought a lady named Robina and her 3 children to settle in Chachi Mohallah. Zafar said that she was the wife of his friend who was working in the United Kingdom, but there were gossips that the two had an affair because Zafar sometimes went to her place in the evening.

4.One evening in July 2005, Robina went to the Applicant’s house for help, claiming that Zafar had assaulted her and had had tried to beat her up on many occasions.  He accompanied Robina to make a report to the police.  Zafar was arrested and Zafar’s family and uncle named Malik apologized to Robina.  Together with the elders of the village they successfully persuaded Robina to withdraw the complaint made to the police.  After being released, Zafar threatened to make up bad stories about her to tell her husband if she refused to have illicit relations with him.  Robina sought assistance from the police again but the police did not do anything.

5.At the request of Robina the Applicant filed an application to court under the Pakistan Penal Code and the court ordered the police to investigate the matter.  The police persuaded Robina to withdraw the case a number of times saying that the procedure would be lengthy and complicated.  Robina finally agreed and the village council (“Jirga”) comprising the father of the Applicant and some village elders confirmed the reconciliation between Zafar and Robina and Zafar was warned not to harass Robina anymore.  The Applicant is of the view that the police had accepted bribes from Zafar and sided with him.  Although Zafar had stopped visiting Robina he continued to harass her over the telephone and whenever they encountered each other.

6.The Applicant learnt from Robina that Zafar had been making use of his position in the telecommunication department and the funds of the government to operate illegal PCO so as to pocket the telephone fees.  The Applicant has no idea what position Zafar held in the department.

7.On 19 October 2005, Zafar verbally threatened a 60-year-old woman named Fehmeda not to report to police a fight between Fehmeda’s 2 grandsons and the 2 sons of Zafar who were only aged 10 to 12.  Fehmeda made a report to the police but no first information report (“FIR”) was filed.  The Applicant believes it was because of corruption that the police did not officially register an FIR.  Fehmeda withdrew the complaint to the police at the request of Zafar’s uncle, Malik, and Zafar and his sons promised not to disturb Fehmeda’s family again.  Zafar kept his promise.

8.Zafar had rented the house of the Applicant’s paternal uncle, Anwar, since 2001 and was supposed to pay a rent of 1600 rupees a month to the father of the Applicant who was the caretaker of the house.  Starting from August 2005 Zafar only paid 850 rupees a month and the Applicant reckons that Zafar was doing so to take revenge on him for his assistance to Robina.

9.On 19 January 2016, the Applicant filed an ejectment petition on behalf of Anwar and his father to remove Zafar from the house.  He set out in the petition the incidents of Robina and Fehmeda to show that Zafar was a man of indecent behaviour and bad character and should be evicted from the house and expelled from the locality.  He also sent an attested copy of the petition to the boss of Zafar in the telecommunication department to inform him about the bad character and corrupt practice of Zafar in order that Zafar might be punished.

10.On 25 August 2006, the Applicant encountered Zafar on his way to the mosque to pray. Zafar asked why he spoke ill of him by sending the petition to his boss.  He attacked the Applicant with a knife and slashed his arm.  The fight which lasted for about 20 to 25 minutes was only stopped when Applicant’s brother Shabir, a friend of Shabir and other passers-by came to his assistance.  He sustained wounds to his arms and wrists.

11.A report was made to the police and an FIR was registered.  The Applicant was escorted by the police to hospital for treatment and he received suture of 4 to 5 stitches to the wound on the right arm with the rest of the injuries bandaged.  He recovered completely after one month.

12.Zafar was arrested the next day after the report was made.  He was taken to court after investigation and remanded in a prison in Adiyala, Rawalpindi awaiting trial.  Zafar’s family and his friends from the Pakistan Muslim League “N” (PMLN”) asked the Applicant to withdraw the complaint against Zafar and when he refused they approached a senior of the Applicant who was an advocate of the Supreme Court of Pakistan for help.  The Applicant’s father and the senior asked him to withdraw the complaint.  The Applicant did so by swearing an affidavit that Zafar was to move out of the house of Anwar within 2 weeks and not to cause any more troubles to the Applicant and that the court case was to be reopened should Zafar breach any of the conditions.  Zafar was then released on bail.  He abided by the conditions and moved to live in Ismailabad which was 30-minute walk from Chachi Mohallah. 

13.On 18 September 2007, the Applicant came to Hong Kong to study on a student-visa, allowing him to stay until September 2008.  In late 2007 he heard that Zafar had been dismissed by the telecommunication department.  He reckons that Zafar would no longer be able to make profits by running the illicit pay phone business and might lose his entitlement to government employee benefits. Shortly after that Zafar telephoned the Applicant 2 to 3 times, saying that the Applicant had ruined his future and he would not leave the Applicant alone and would teach the Applicant a lesson if the Applicant returned to Pakistan.   The Applicant reckons that Zafar meant to cause him actual bodily harm or kill him. The last call from Zafar was in December 2007, but after that the Applicant received several calls from unknown or restricted numbers which he did not receive because he thought that they were made by Zafar.

14.His study in Hong Kong terminated in January 2008 and he was supposed to leave Hong Kong.  He did not do so and surrendered to the Immigration Department on 17 September 2017 for overstaying.  He was released on recognizance on 22 October 2008 and he submitted his written signification to raise a torture claim on 1 December 2008.

15.On 25 December 2012 his brother told him that their mother had passed away.  The Applicant planned to return to Pakistan to attend the funeral, but he decided not to do so when he was informed by a friend on the next day that he had met Zafar in the funeral of his mother and Zafar had questioned his whereabouts and said he would kill the Applicant if he should see him.

16.In April 2014, the brother of the Applicant, Shabir, heard from his friend, Jawad, who was the neighbour of Zafar in Ismailabad, that Zafar had asked about his whereabouts.  The Applicant reckons that Zafar still has an adverse interest in him.

17.The Applicant made a non-refoulement claim by submitting a claim form dated 29 May 2014.  His application was considered under the Unified Screening Mechanism (“USM”) and was rejected by the Director.  The notice of decision of the Director is dated 27 November 2014.  His appeal to the TCAB was rejected on 20 March 2017 after a hearing.

18.He made the present application by virtue of a Form 86 dated 27 March 2017.  His application is supported by an affirmation which is dated 27 February 2017. This date is obviously a mistake and should read 27 March 2017.  He seeks, inter alia, an order of certiorari to quash the decisions of the Director and TCAB and an order to have his appeal against the decision of the Director to be heard by a different TCAB member.  He also asks for an extension of time to make the present application.  This is clearly unnecessary because the application has been made within the time limit.

19.It is the contention of the Applicant that although he is not targeted by the Pakistani government, he is indirectly so targeted because Zafar is a government employee and as Zafar is a party worker of the PMLN the threats Zafar made against him are also politically motivated.  The arguments of the Applicant obviously do not make sense and are illogical.  The Applicant himself pointed out in his non-refoulement claim that he had heard Zafar had been dismissed by the telecommunication department.  Furthermore, no matter whether Zafar had been dismissed from his post or not, there is no evidence at all Zafar made the threats against the Applicant in the capacity of a government employee or party worker of PMLN rather than because of personal grudge.

20.The Applicant points out in his affirmation that one and half years have elapsed since the TCAB hearing and the circumstances in Pakistan could have been changed.  This is irrelevant to the present application because even if the circumstances in Pakistan had changed for the worse it still does not change the nature of the threats made by Zafar against the Applicant that they have nothing to do with the Pakistani State or politics.  More importantly, all complaints made by the Applicant to the police in Pakistan regarding what Zafar had done to him were properly dealt with by the police and Zafar was even taken to court.

21.The Applicant complains that he was given a short notice of the TCAB hearing and the majority of the documents in the bundle provided to him were in English.  The Applicant did not have the financial means to hire an interpreter to explain the documents to him.  He therefore did not have sufficient time and understanding of the documents to prepare for the appeal.  The notice of the Director rejecting the non-refoulement claim of the Applicant is dated 27 November 2014.  The hearing of the TCAB did not take place until 10 September 2015. There should be plenty of time for the Applicant to prepare for his appeal.  As regards the language problem it should not be too difficult for the Applicant to seek help to have the documents explained to him.  This is testified to by the Applicant being able to make a proper affirmation in English for the present application. 

22.More importantly, the TCAB have given full assistance to the Applicant and the non-refoulement claim of the Applicant has been fully and fairly considered by the Director and the TCAB.

Conclusion

23.I have considered the evidence of the case and the decisions of the Director and the TCAB. They have looked into all the available grounds of non-refoulement claims of the Applicant and have carried out thorough research and enquiries into the conditions of Pakistan.  All the issues raised by the Applicant have been fully and fairly considered by the Director and the TCAB in accordance with the law and legal procedure.

24.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 16^th day of October 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