Hussain Imtiaz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2939/2018

[2020] HKCFI 2879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2939 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:

A.     Background

1.The applicant was born on 20 February 1991 and raised in Nankana Sahib, Pakistan.  He and his family had no political affiliation.  About early 2013, he started dating a girl, Komal.  He did not know her age and occupation. He knew very little about the background of Komal and her family.  They met once every one to two months.

2.After about 7 months, they planned to get marry.  However, Komal’s family objected as Komal would be arranged to marry a relative.  Eventually, he and Komal eloped to a village.  He could not recall the name of that village.  About a month later, they were located by Komal’s father and brother. He managed to escape but Komal was taken back home.

3.He fled to a city.  It was a big city but he forgot its name.  He stayed there for a month.  One day he met a friend who told him that Komal was killed (‘honour killing’).  Komal’s father and brother also threatened to kill the applicant.  He was frightened and decided to flee to China.  The applicant’s family was not known to Komal’s family.  They were not harmed.[1]

4.A friend arranged him to take a flight to Guangzhou on 24 July 2013. He used his passport.  There was no problem.  He could not recall that friend’s name and the fees charged.  He then took a train to Shenzhen.  He stayed there for 8 months before sneaking to Hong Kong.  He was arrested on 11 March 2014 for illegal remaining in Hong Kong.  He lodged the non-refoulement claim on 13 March 2014.  He was granted recognizance on 4 April 2014.  He did not know the current situation about Komal and her family in Pakistan.

5.He thought internal relocation was not possible.  Komal’s father could locate him anywhere he went in Pakistan.

6.As Komal’s family had reported to the police about his illegitimate relationship with Komal, the police would not help him.  He did not know under which law the relationship was prohibited.  He dared not complain against the police.  He did not know any channel of complaint, such as, the ombudsman.

7.During the screening interview, he indicated that he was going to marry a Hong Kong resident on 16 February 2017.  They had 2 children already.

The Decision of the Director

8.The Director rejected his claim on 3/2/2017.  The Director found that there was no substantial ground to believe any real risk that the applicant would be killed.  The reason being:

(a)     He only learned from a friend that Komal was killed.  There was no supporting evidence whatsoever.  He had not encountered Komal’s father nor brother.  There was no ill-treatment inflicted on him, not to mention that it must be of minimum level of severity.

(b)     He was not targeted by the Pakistani government.  He did not report to the police.  There was no evidence his relationship with Komal was prohibited by law.  There was no evidence that Pakistan government was involved in any way.

(c)     According to various COI, the reputation of the police in Pakistan was poor.  The problems included ineffective investigation and bribery.  On the other hand, there were practical steps taken to improve the situation and to monitor police conduct.  There were other channels for redress.  The Federal Ombudsman investigate complaints.  Individuals might seek redress from the civil courts against government officials.  It was also an offence for not taking reports.  There were improvements to tackle police professionalism, human right violations etc.[2]

(d)     There would be laws passed to tackle ‘honour killing’.  The State would not turn a blind eye to ‘honour killing’. [3]

(e)     Even if the applicant was charged for the alleged illegitimate relationship with Komal, there was no evidence that he would not be dealt with in a fair trial.  The constitution of Pakistan provided for fair trial and equality before the law.[4]

(f)     Pakistan was a large country and heavily populated.  Internal relocation was permitted under the law.  There was no evidence, so far as resources and influence were concerned, that Komal’s family could locate the applicant anywhere in Pakistan.  The Director pointed out that Lahore and Karachi would be reasonable alternatives.[5]

(g)     Given the above, the Director opined that there was no real and personal risk that the applicant would be subject to ill-treatment.  The claim under BOR 3 failed.

(h)     Similarly, there was no risk of arbitrary deprivation of life under BOR 2.  This claim failed.

(i)     For persecution risk, there was no evidence that the risk, if any, arose from any Convention reasons.  It was not connected with race, religion or political affiliation.

(j)     For torture risk under s 37U, there was no evidence of severe pain and suffering as defined under that section.  There was no State instigation, consent or acquiescence.  There was reasonable State protection and internal relocation options.  This claim failed.

The Decision of TCAB

9.The TCAB arranged a hearing on 21 September 2018.  The applicant did not turn up.  He was asked to file a written explanation for his failure to attend.  There was no response.  Having satisfied that all correspondence was sent to his last known address, the adjudicator proceeded to consider his appeal based on the available evidence which include the NCF, records of interview, decision of the Director and relevant COI.[6]

10.The adjudicator had considered COI in relation to ‘honour killing’.  She accepted that this did occur in Pakistan under Sharia Islamic law for some offences.  However, the adjudicator had concerns about the evidence of the applicant.  His recollection of the background of Komal was very vague.  He could not recall many details.  According to the COI, women were overwhelmingly victims of ‘honour killing’.  Given that the applicant failed to attend the hearing, there were many issues which could not be further clarified.  The adjudicator thus acted on the existing material.  She was not satisfied that the applicant could not return to Pakistan as he claimed.

11.As to torture risk, the evidence did not support that the applicant had suffered severe pain and suffering as defined under s 37U.  Given the evidence before the TCAB, the adjudicator was not satisfied that there was genuine fear that he would be subjected to torture from the family of Komal.

12.For BOR 3 and BOR 2, the adjudicator was not satisfied that there was genuine and substantial ground to believe there would be risk of CITDP if he returned to Pakistan.  Similarly, there was no evidence of any risk of arbitrary deprivation of life.  Both claims failed.

13.For persecution risk, the fear in this case was not connected with any Convention reasons.  There was no real risk of persecution.  This claim failed.

Judicial Review

14.The applicant filed the leave application for judicial review on 21 December 2018.  In the Form 86, he sought to review the decision of TCAB dated 24 September 2018.[7]

15.I take it that the applicant meant to judicial review the decision of TCAB which was dated 15 November 2018.  There was no reviewable decision dated 24 September 2018 which was only the date on which the TCAB requested him to file an explanation for failure to attend the hearing scheduled on 21 September 2018.

16.In his affirmation in support of the leave application, the applicant only mentioned that he was not satisfied with the decision of the Director.  He only mentioned that he had problems in his country and asked to be allowed to stay in Hong Kong.  There was no attempt whatsoever to explain his absence from the hearing scheduled before the TCAB.  Nor did he mention any intention to file additional evidence.

17.The adjudicator was satisfied that the notice of hearing was sent to the applicant in accordance with sections 13 & 15 of Schedule 1A of the Immigration Ordinance [8]. Likewise, she was also satisfied that the notice for written explanation for failure to attend the hearing was in accordance with section 15.  The adjudicator was also satisfied that all correspondence was sent to the last known address of the applicant.[9]  The applicant did not respond to the request for explanation.  The adjudicator proceeded to consider the appeal in the absence of the applicant.[10]

18.In this case, the law requires all notices from the TCAB be sent to the last known residential address of the applicant.[11] It is presumed, in the absence of evidence to the contrary, to have been received by the applicant two working days after it was so sent.[12]  The adjudicator was satisfied that notices was duly served.

19.I note that the decision of the TCAB was sent to two addresses which are different from the address recorded in the Form 86 (leave application) and the Form 8 (recognizance form).

20.There is no information when the applicant changed his address.  In my view, it is the duty of the applicant to update his address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance.  Even if he had changed his address, he should have arranged a method for the mail to be diverted to him.

21.The applicant mentioned a date in the Form 86—24 September 2018—which was the date of the notice requesting for an explanation of failure to attend the hearing.  This indicated that at least he was aware of the request from the TCAB but he did not respond to the notice whatsoever.

22.In my judgment, the adjudicator could not be criticized for determining the appeal in the absence of the applicant.

23.Despite the above, I have considered the evidence in this case.  The evidence of the applicant was very vague in some material aspects.  I agree with the decision of the adjudicator and the Director.  They are reasonable.  In my view, there was no error of law nor procedure.

Conclusion

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

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

Dated the 12^th day of November 2020.

Form CALL-1