Usman Gani v. Torture Claims Appeal Board and Another

HCAL 263/2017

[2020] HKCFI 758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 263 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 single Pakistani male, born in Hajipura Camp, Sialkot District on 22 February 1973.  His parents had passed away and he has lost contact with his 5 brothers.  He finished primary 5 and worked as a leather cutter before coming to Hong Kong.  He speaks Urdu and Punjabi.  He and his family are supporters of the Pakistan Muslim League, a political party in Pakistan.

2.Around 1991 or 1992, a man named Malik Saraj (“Saraj”), who was closely connected with the Pakistan People’s Party (“PPP”), together with 3 persons came to the farmland of the applicant and his father, demanding them to surrender their land to Saraj.  The applicant and his father refused and were beaten up by them, causing injuries to their arms and legs.  They received treatment in a hospital.  The Narowal police refused to accept their report as Saraj was believed to be aligned to PPP, the then ruling party in Pakistan.

3.As the farmland was occupied by Saraj, the applicant and his father applied to the District Court to recover the land but the court ruled that the occupation was legal.  The father appealed to the High Court but the case was repeatedly adjourned, making no progress at all.

4.About 2002 or 2003, a group of about 6 persons came to attack the applicant and his father at their home, warning that they would be killed if they did not transfer the ownership of the land.  The police again did not accept the complaint of the applicant and his father for the reason that they did not believe the applicant and his father.  The police  sided with the ruling party.

5.In 2004, the applicant’s father decided that the life of the applicant was in danger and would not be safe no matter where the applicant was to hide himself in Pakistan.  At the suggestion of the father the applicant came to Hong Kong.   

6.He entered Hong Kong on a valid Pakistan passport through proper channel on 29 April 2004 and has since remained in Hong Kong.  In 2006 he applied to the United Nations High Commission for Refugees (“UNHCR”) for protection and was rejected in 2007.  He was arrested in Hong Kong on 23 February 2011 and he raised a torture claim with the Immigration Department on 26 February 2011 and was released on a recognizance on 12 April 2011.

7.His claim was assessed by the Director of Immigration (“the Director”) under the risk of torture and the Director rejected his claim on 27 January 2012.  The applicant did not take the decision any further.

8.The applicant did not report to the Immigration Department pursuant to the terms of his recognizance on 14 February 2012 and was re-arrested on 17 April 2013.  2 days later he made a non-refoulement claim by way of a written signification. He was released on recognizance again on 25 April 2013.  On 30 May 2016 with the assistance of the Duty Lawyer Service he lodged a supplementary claim form under the Unified Screening Mechanism (“USM”).  The risks raised in his non-refoulement claim under the USM, with the exception of that under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BOR 2”), were rejected by the Director on 12 August 2016 and the applicant lodged an appeal against the decision on 22 August 2016.  The BOR 2 risk was also rejected by the Director on 16 March 2017 when the applicant failed to respond to the letter of the Director asking him to provide further facts, if any, relevant to his non-refoulement claim.

9.The Torture Claims Appeal Board (“TCAB”) hearing the appeal of the applicant dealt with both decisions of the Director.  The applicant appeared in the hearing in person.  The TCAB dismissed the appeal of the applicant on 18 May 2017.

10.The applicant lodged an application for leave to apply for judicial review of the decision of the TCAB by a notice (“Form 86”) dated 2 June 2017.  The applicant sought, inter alia, an order to quash the decision of the TCAB.  The applicant asked for an oral hearing in case leave was not granted on paper.  He, however, failed to appear in court despite 3 hearing dates were arranged for him.  The Court therefore decided to deal with the case on paper.

Conclusion

11.I have considered the evidence and decisions of the Director of Immigration and the TCAB. They have looked into all the available grounds of non-refoulement claim of the applicant and I do not find any error in law or procedure.

12.The applicant submits by way of his affirmation that there was an unreasonable delay of more than 1 year by the Director in screening his torture claim, and because of such delay he was unable to retrieve documents and to obtain evidence from his home country to support his claim.  The applicant arrived in Hong Kong in 2004 and when his application for protection to the UNHCR was rejected in 2007 he chose to remain in Hong Kong illegally.  He did not raise the torture claim until he was arrested in 2011.  Taking into consideration of the heavy workload of the Director in dealing with the large number of applications similar to that of the applicant, the time taken by the Director to process the torture claim of the applicant was certainly not unreasonably long.  If there was any delay it was occasioned by the applicant himself.  The applicant had stayed in Hong Kong for about 7 years before he filed his torture claim.  There no doubt was plenty of time for him to obtain the necessary documents and evidence to support his claim.  The complaint of the applicant in this regard is totally unfounded.

13.The applicant complains that on 15 March 2017 the Director served the hearing bundle which was in English on him for the hearing before the TCAB which was scheduled for 22 March 2017 and he did not have the means and time to have the bundle translated into his language.  He was as a result unable to prepare sufficiently for the hearing.  Judging from the way the applicant prepared the documents for the torture claim and the present application the applicant should have no difficulty to enlist assistance to do the same for the TCAB hearing.  Most importantly, it can be seen from the decision of the TCAB that the adjudicator had assisted the applicant throughout the hearing and illicited evidence from him by asking him questions.  The applicant was able to state his case fully in the hearing and the TCAB had considered all aspects of his appeal.  The complaint of the applicant in this regard has no merits.

14.The applicant also relies on the ground that the TCAB has no reasonable basis to reject his credibility.  This concerns the finding of facts by the TCAB and the TCAB has in its decision given detailed explanations why it had found the applicant to be incredible.  This court does not see any justification to interfere with the finding of the TCAB.

15.The applicant further complains that the TCAB relied significantly on the source of news which was not officially recognised or was simply hearsay and on outdated cases.  He, however, has not given any details or particulars of such source of news and outdated cases or elaborated on how the decision of the TCAB had been affected.  The Director in considering the claim of the applicant referred to a considerable amount of materials relating to the conditions in Pakistan, including the COI report, the Country Information and Guidance Pakistan relating to land disputes, actors of protection and internal relocation issued by the UK Home Office in 2014, the Country Reports on Human Rights Practices of Pakistan for 2015 issued by the US State Department in 2016 and the Immigration and Refugee Board Report of Canada issued in 2014.  The TCAB although referred only to COI report it had examined and analysed the decisions of the Director very carefully and thoroughly.  The complaint of the applicant in this regard cannot be substantiated.  More importantly, as pointed out above, the main reason of the TCAB rejecting the claim of the applicant is that it did not find the story of the applicant truthful.

16.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 14^th day of May 2020.

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