Naveed Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 456/2017

[2019] HKCFI 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 456 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 35-year-old national of Pakistan who entered Hong Kong illegally on 24 December 2013 and was arrested by police on 20 January 2014.  After being 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 his great paternal uncle and his sons over certain land dispute in the family.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Katari, District Jhelum, Province Punjab, Pakistan, and after leaving school he worked in his father’s farmland in the village.

3.One day in about mid-2012 the applicant was told by his father that his great paternal uncle and his sons had tricked him into transferring his land to his great uncle, and when the applicant and his brother went to confront his great uncle, they were assaulted by his sons who then fired their rifles into the air to threaten them as the applicant and his brother fled from the scene.

4.Shortly after the incident the applicant’s father passed away, and when the applicant and his family blamed the great uncle and his sons for his father’s death, they were warned and threatened by his great uncle to keep their mouth shut or otherwise they would be killed.

5.Thereafter the applicant went to consult a lawyer about the dispute, but on his way home he was confronted by his great uncle and his sons who accused him of trying to take legal action against them and proceeded to beat him with wooden sticks which resulted in bruises all over his body.

6.Several days later the great uncle and sons came to the applicant’s home and demanded that he and his family to leave the village now that they no longer owned the land and proceeded to beat him and his family until their neighbours intervened.

7.After his report to the local police was to no avail as his great uncle and sons were wealthy and influential in the village with political connections, the applicant moved with his family to Rawalpindi to avoid their threats and harassments, but when he heard that his great uncle and his sons were still looking to harm him for having spoken out against them, the applicant decided that it was no longer safe for him to remain in Pakistan, and so on 22 November 2013 he departed first for Thailand and then China, and from there he sneaked into Hong Kong where he subsequently lodged his non-refoulement claim on 25 January 2014, and for which he later completed a Non-refoulement Claim (“NCF”) on 16 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 15 April 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”).

9.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and doubted his credibility due to his failure to seek non-refoulement protection either in Thailand or China and until almost one month after his arrival in Hong Kong, that the low intensity and frequency of ill-treatment from his great uncle and sons in the past if true are indicative of a low future risk of harm upon his return to Pakistan and that there is any further reason for them to harm him now that they already had his family’s land, that in any event it was a private family dispute over their family land that reliable and objective Country of Origin Information (“COI”) show that it can be resolved by legal or court process in Pakistan and that in the absence of any official involvement that state protection would be available to the applicant if resorted to, and that COI also 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 experience to move to other area away from his home district in large cities such as Karachi, Lahore, or Rawalpindi where he had stayed before without any incident and where it would be difficult if not impossible for his great uncle and sons to locate him.

10.By a Notice of Further Decision dated 12 June 2017 the Director again rejected the applicant’s claim after considering further submissions from him 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”).

11.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 27 April 2016, and for which he attended an oral hearing on 30 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found a number of issues relating to the applicant’s claim over his father’s land and the later false claims made by his great uncle against him and his family unanswered or unsubstantiated by him, and that major discrepancies were also noted between the information provided by him in his NCF and screening interview before the Immigration Department and his evidence given at his oral hearing before the adjudicator which undermined the reliability of his various allegations, and that it agreed with the Director that in any event state protection and reasonable internal relocation alternatives in other areas of Pakistan would be available to the applicant should he still feel undesirable to return to his home district, and concluded that his claim fails on all applicable grounds.

13.On 26 July 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that the Board’s decision in rejecting his appeal was procedurally unfair as it failed to carry out sufficient research and inquiry into COI conditions and overall general relevance or focusing on the circumstances, attributes and beliefs of a person fitting the profile of the applicant with the consequence that it could not arrive at a fair decision in dismissing his claim;

(2)  that the Director failed to take into account or put proper weight on highly relevant COI that were in favour of the applicant and instead cherry-picked and put weight on irrelevant COI that were of little or no relevance with the consequence of unreasonably dismissing the applicant’s claim;

(3)  that the Director failed to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in Pakistan and failed to take such finding into account or to give any weight to the fact that the applicant was assaulted by his uncle and the misbehavior of police for demanding bribes and threats of death from his opponents in refusing his claim;

(4)  that the Director misdirected himself on law by failing to consider and assess whether state protection existed under the applicable grounds; and

(5)  that the adjudicator failed to explain to him the further and additional information regarding BOR 2 risk or to give him a further oral hearing before rejecting his claim under BOR 2 risk.  

14.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the Board had erred in their decisions, or in what way did the Director or the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15.Further, the mere existence of a constant pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461.  In the present case it has been established by both the Director and the Board that it was a private and personal family dispute between the applicant and his great uncle which formed the core basis of his claim, of which they were entitled to do as the primary decision makers based on the evidence available to them, and I do not see any relevancy or merit in grounds (3) or (4) of the applicant.

16.As for his complaint of the Board failing to give him a further hearing regarding his claim under BOR 2 risk, the applicant clearly attended an oral hearing before the Board on 30 June 2017 which came almost three weeks after the Director‘s Further Decision rejecting his claim under BOR 2 risk, and as recorded in paragraph 11 of the Board’s decision that during that hearing the applicant just confirmed his evidence contained in his hearing bundle without any additional information or grounds for his appeal, and upon which the adjudicator proceeded to consider his claim under BOR 2 risk without a further hearing as he explained in paragraphs 98 – 100 of the Board’s decision as he was in the circumstances entitled to,  and I do not find any merit in this complaint of the applicant either.

17.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.

18.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 22^nd day of March 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