Abbas Qammar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 234/2017

[2019] HKCFI 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 234 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 21 October 2013 and was arrested by the police on 12 November 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by three fellow villagers over certain land dispute.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Mandi Bahauddin, Pakistan.  After leaving school he worked as a driver, and in 2003 inherited two plots of land in the village from his father.  In the same village were three wealthy land owners FY, NM and RY with political connections as supporters of the ruling party Pakistan Muslim League-N (“PML-N”) who coveted his land which led to subsequent conflicts with the applicant.

3.One day in March 2011 when the applicant ran into the three of them, NM demanded that he handed over his land to them, and when he refused they threatened that they would kill him to get his land before they left.  The applicant did not report the threat to the police.

4.Two days later whilst he was at home he was informed by his neighbor that some people were on his land.  When he went to his land he found the three of them there with FY driving a tractor on his land, and when the applicant tried to stop them, NM and RY took out a pistol and shot at him which they missed and the applicant was able to flee to his home.  Later when he reported the matter to the police, the officer just took down his details but did not follow up with any action.

5.Several days later when the applicant found some workers on his land, and when he tried to drive them away, NM and RY appeared with guns and threatened to kill him there that the applicant was so frightened that he ran home to hide, and when he feared that they would come looking for him, he fled to Islamabad to take shelter at a friend’s place, but when he heard that FY and NM were coming to Islamabad for him, he decided to leave Pakistan which he did on 26 July 2013 for China, and from there he later sneaked into Hong Kong and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 8 January 2016 with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 9 May 2016 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”).

7.In his decision the Director found the threats against the applicant arose from a private property dispute with his fellow villagers with no evidence of any involvement of the state or the police that state protection would be available to him 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 199 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experiences to safely move to other areas away from his home district such as Karachi or Islamabad where he had lived before without any incidents and where it would be difficult if not impossible for his enemies to locate him.  

8.By a Notice of Further Decision dated 21 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts 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”).

9.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 19 May 2016, and for which he attended an oral hearing on 18 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board similarly found the applicant’s dispute with his fellow villagers a private personal matter that state or police protection would be available to him, and that any such risk of harm from his enemies was confined to the local area where he lived and hence internal relocation to another part of Pakistan would mitigate or remove such risk.

11.On 25 May 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just repeating his claim that his life would be at risk in Pakistan as follows:

“ … if I will return to my home country to Pakistan my life will risk will receive death. All I claim I make will consider deeply no life save and will high risk. My against party people more power people in our country which they can do anything in our home they more powerful people. Torture Claim Board attached file which copy from website film actor life which all fake no one safe if against this party …”

12.As noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

13.As it has been established by both the Director and the adjudicator in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, they were entitled to come to their conclusion that there is no justification to afford the applicant with non-refoulement protection in Hong Kong, and I am unable to find any basis to interfere with such conclusions: see TK v Jenkins & Anor, supra.

14.Neither do I find any error of law or procedural unfairness in their decisions after having considered them with rigorous examination and anxious scrutiny, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.   

15.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 I accordingly refuse his leave application.

Dated the 1st day of February 2019

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