Case Document

100%Judiciary

HCAL 3005/2018

[2021] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3005 of 2018

BETWEEN

	Khan Asad Ali	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 absent in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The appellant was arrested on 14/1/2016 for illegal remaining in Hong Kong. He admitted to the police that he left Pakistan on 10/1/2016 for China and sneaked to Hong Kong subsequently. [1]

Background [2]

2.The applicant was born on 15/7/1992. He was raised in Attock, Punjab, Pakistan. He had education for 4 years. He was a farmer from 2006-2010. He was a driver from 2014-2016. His parents had passed away. His sisters were in Pakistan. His younger brother in Dubai.

3.About 2003, the applicant inherited a plot of farm land from his father. One day, his cousin came with several men who were supporters of the PML.[3] They threatened to kill the applicant if he refused to transfer the land to his cousin. He was afraid they would harm him and his family. He fled.

4.He recalled that there were 5-6 similar incidents during 2005-2006. He managed to escape on those occasions.

5.Later in 2014, his brother was attacked by his cousin and the gang. His brother was injured and hospitalized for 10 days. He heard about this attack and ran away. In 2015, he stayed with a friend in Rawalpindi for 3 months. In 2016, he left Pakistan for Hong Kong via China [4]. He encountered no problem leaving Pakistan. The trip was arranged by an agent at a fee of 200,000 Rupees. He did not apply for protection in China as the stay was short there.

6.He was informed that his cousin and his gang still looked for him in Pakistan.

7.The Police did not take any action despite he had reported to the Hazzro Police Station. He would be located by his cousin as they had a network and resources.

8.He feared that his cousin and his gang would harm or kill him because of the land dispute with his cousin.

The Decision of the Director

9.The Director pointed out the following to conclude that the future risk of harm was low:[5]

(a) In his encounters with the cousin, he had never been physically attacked. There was only verbal threat. His mental state was not affected. He took shelter at Rawalpindi and planned to leave Pakistan through an agent. There was no injury which amount to a minimum level of severity.

(b) It seemed that the cousin and his gang were putting pressure on him to transfer the land. They actually had plenty of chances to harm him but did not. His fear of harm was far-fetched.

(c) The land dispute was a personal matter. There was no evidence that the PML or the Pakistan government were involved. There was no evidence that any government official was involved. The applicant could leave Pakistan safely. He was not targeted by the State.

(d) The applicant had not filed any complaint to other police stations or higher authorities. He just asserted that the police would not assist. There was no evidence that the State knew about the situation but failed to take action.

(e) Some COI revealed that police efficiency varied by district. There was corruption in the police. Mistrust of the police was common. However, the Pakistan government had taken positive steps to tackle corruption and abuse of power in the police force. The NAB[6] was responsible to investigate and eliminate corruption at all levels. A person might complain to higher rank officers—superintendent—if on refusal to register a complaint. DPSPCC[7] were established to improve safety at district level and prevent abuse of power. A person might file complaints to the Ombudsman against misconduct of police and public officials. The Director was satisfied that there was satisfactory State protection. There was no breakdown of law and order.

(f) The Director found that there was reasonable opportunity for internal relocation. The law in Pakistan permitted internal movement. Pakistan was about 800,000 km² in area with a huge population. There were reasonable options such as Faisalabad and Karachi for relocation. The applicant was not targeted by the government. It would not be unduly harsh for him to relocate given his age and experience.

10.The Director rejected the claim on all grounds on 7/2/2018.

The Decision of TCAB

11.The applicant attended a hearing on 29/10/2018. The TCAB rejected the appeal on 20/12/2018. The adjudicator had set out the following reasons for refusal of his appeal:[8]

(a) The applicant remained at his home village at Lakori from 2003-2015. During this 12-year-period, his cousin had not harmed or killed him because of the land dispute. Since he left Pakistan, his family was still farming on the land. His cousin had not taken any action to take the land.

(b) During the hearing, the applicant confirmed that he stayed at Karachi for 6-7 months before leaving Pakistan. However, this was inconsistent with his NCF according to which he stayed at Rawalpindi before leaving Pakistan. He could not explain the inconsistency. The adjudicator doubted his credibility.

(c) The applicant stated in the NCF that his cousin associated with PML at the time he fled Pakistan in 2016. In the hearing held in 2018, he stated that his cousin was connected to the PTI [9]. The PML was the majority party in the government until 2018 when the PTI allied with other parties to form the majority government. The applicant asserted that his cousin had changed allegiance without any supporting evidence. The adjudicator found that this was an attempt to instill some political flavor in his claim.

(d) The adjudicator did not accept that the police would not assist the applicant in Pakistan. She did not accept that the cousin had the resources to locate the applicant. In any event, it would not be unduly harsh for the applicant to relocate. There were cities like Karachi, Lahore and Islamabad which were reasonable options.

12.The applicant’s claim did not arise from any of the categories of persecution under the Convention. There was no State involvement or acquiescence. There was no risk of torture, CIDTP or arbitrary deprivation of life. The adjudicator rejected his appeal.

Judicial Review

13.The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he pointed out that his life was in danger in Pakistan. He asked to stay in Hong Kong until the problem was solved.

14.In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. In general, this court would not interfere with the findings of facts.

15.I agree with the adjudicator that the applicant was not credible in various important aspects. In my judgment, there is no error of law or procedure. The decisions are reasonable.

Conclusion

16.The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.

Dated the 19^th day of April 2021.

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19 April 2021 Khan Asad Ali Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 April 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10401/18/2/285/P2008 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 332/18 (formerly RBCZ/10547/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)