Zareed Jamshaid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2917/2018

[2020] HKCFI 2835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2917 of 2018

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 Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Background

1.The applicant was born in Sui Cheemian Village, Rawalpindi, Punjab, Pakistan. He was 42.  He had education up to class 10.  He was single.  He had six younger siblings.

2.He supported the Pakistan Tehreek-e-Insaf party (‘PTI’).  He helped the party in rallies and local assembly election in 2013—2015.  He was a driver and web-designer of a company called Web Designing Office in Islamabad.

3.On 4 April 2015, there was a robbery at his office.  The three robbers came on two motorcycles.  They had pistols.  When the robbers fled, the applicant managed to knocked down one motorcycle leading to the arrest of one robber.  During the struggle with the robber, the applicant sustained a broken leg.  His leg was put on plaster.  He was admitted to Benazir Bhutto International Hospital (‘BBIH’) eventually for about one and a half months.[1]

4.While hospitalized, he received a call from a person named ‘Murad’ who threatened to kill him in revenge as the arrested robber was his uncle.  He received another call from Murad a week after discharge. He reported the matter to the police.  There was no action by the police who asked him to leave.  He believed Murad and his uncle associated with the ruling party—Pakistan Muslim League (‘PML’)—and the local police.  Murad’s uncle was released without charge.

5.In November 2015, he travelled to Guangzhou by air through normal channel.  Then he went to Shenzhen and sneaked to Hong Kong by boat on 15 December 2015.  He surrendered to the Immigration Department on 23 December 2015.  He was granted recognizance.

6.He did not think the police would protect him as they were influenced by the PML.  There was a claimant from Hong Kong—Abdul Rahman—who was shot dead after returning to Pakistan.  Internal relocation was not an option as his enemies would use the government machinery and their connections to locate him in Pakistan.

7.He was afraid that Murad would harm or kill him if he returned to Pakistan.

The Decision of the Director

8.The Director considered the NCF and the further written clarification from the applicant.[2]  He rejected the claim and give the following reasons:

(a)  He had never met Murad who threatened him.  His injury was not connected with Murad.

(b)  He only received threats from Murad but he was safe while in Pakistan.

(c)  Had Murad or PML wanted to harm or kill him, there were plenty of chances.  They never did anything.  This was indicative that they had no intention to do so.

(d)  The future risk of harm if he returned to Pakistan was low.  There was no substantial ground to believe so.

9.The applicant chose not to report to higher authorities.  There was no evidence that Murad was under the instigation of PML.  There was no state consent or acquiescence in this case.  The applicant was able to leave Pakistan without any problem.

10.The Director had considered various COI and concluded that there was reasonable state protection.  The overall impression was that the police in Pakistan were able to enforce the law irrespective of political background.  There was Federal Ombudsman which would investigate complaints against police or public officials.

11.The Director pointed out that Lahore was a big city with large population.  The law in Pakistan permited relocation.  The applicant was only 41 and it was not unduly harsh for him to relocate.

12.For BOR 2, given the evidence in this case, the Director opined that there was no real risk of arbitrary deprivation of life.

13.For BOR 3, there was no ill-treatment, physical or mental, which amounted to ‘minimum level of severity’.  There was no genuine and substantial risk of ill-treatment.

14.For persecution risk, the dispute between the applicant and Murad was personal and had nothing to do with persecution as defined under the Refugee Convention.

15.For the torture risk under s 37U of the Immigration Ordinance, there was no severe pain and suffering as defined under the section.  There was no official involvement, instigation or acquiescence.  There was no evidence of targeting by the government nor was there state involvement.

The Decision of TCAB

16.The applicant gave evidence during the hearing on 23 November 2018.  The TCAB rejected his appeal on 7 December 2018. 

17.The adjudicator found that the applicant’s story not credible for the following reasons:

(a)  The applicant claimed to have a broken leg which was put on a plaster during the robbery in April 2015.  He submitted reports which only recorded a twist of the left knee in a traffic accident during a car chase.

(b)  According to the discharge card submitted, he was admitted to BBIH on 26-5-15 and discharged on 14-7-15.  This was inconsistent with the robbery and the injury which should be around April 2015.

(c)  The applicant said Murad had been a co-worker in the company.  He did not say so in his NCF.

(d)  The applicant said he rammed his car into one of the robbers’ motorcycle after loosening himself.  In the NCF, he said he jumped onto the robber’s motorcycle.

(e)  During hospitalisation, there was no attempt by Murad to harm or kill the applicant.

(f)  There was no more threat after his discharge from BBIH until November 2015.

(g)  He confirmed that PTI was elected the ruling party in Pakistan in 2018.  However, he insisted that the police would not change their practice despite a change of the ruling party.

(h)  He insisted that relocation to Lahore was not possible as his enemies would locate him even through the National Database and Registration Authority.  The adjudicator found this not credible.[3]

18.The adjudicator found the applicant not credible.  There was no robbery.  His injury was not sustained during a robbery.  There was no threat from Murad.  There was no real risk of him if he returned to Pakistan.

19.The applicant was not within the definition of refugee set out in the Refugee Convention.  Given the rejection of his story, this ground failed.

20.The applicant’s evidence of the robbery was rejected.  He failed to established that there was a real risk of CIDTP.  The claim under BOR 2 and BOR 3 failed.

21.The applicant’s evidence of the robbery was rejected.  There was no evidence of state involvement or inaction.  The claim under Part VIIC of the Immigration Ordinance failed.

22.The adjudicator pointed out that Islamabad or Rawalpindi were reasonable alternatives for relocation.

Judicial Review

23.The applicant filed the leave application on 19 December 2018.  His ground was that he was afraid the enemy would kill him.  He had not pointed out any specific error in both decisions.

24.I have considered the decisions in particular that of the TCAB.  I do not find any error of law or procedure in both decisions.  They are reasonable given the evidence.

Conclusion

25.This case is not reasonable arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 10^th November 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