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

HCAL 2897/2018

[2021] HKCFI 2945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2897 of 2018

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 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:

1.The applicant claimed that he had sneaked into Hong Kong from China on 31/7/2013. He was arrested by the police on 2/9/2013. He filed the non-refoulement claim in this case on 4/9/2013.

Background

2.The applicant was born on 1/1/1972.  He was raised in Bhimber Mirpur, Pakistan.    His family was in Pakistan.  He studied up to grade 9.  He was a taxi driver (2004-2010).  He was unemployed thereafter and supported by his parents. He was married with 4 children. He was a supporter of “PMLN” [1]. He put up posters for the party.

3.In May 2011 in the afternoon, while he was putting up posters for a “PMLN” candidate, about 11 members of “PPP” [2] approached. Zaheer (“Z”) threatened to kill him and asked him to stop. They assaulted him with sticks. He fought back. Someone fired several times into the open air. He was not shot. He ran home. He had bruises over his body. He was treated at home by his parents. He did not report to the police.

4.The next day, he reported to the police. They recorded the complaint and went to his village to locate those members of “PPP”. However, no one was arrested. He did not expect the police would assist as they had asked for a bribe which he could not afford.

5.In the next few months, he received calls from members of “PPP” threatening to kill him. After taking advice from his friends, he decided to come to Hong Kong through China. He asked a friend to make arrangements. Meanwhile, he stayed at his friend’s place at the same village until February 2012 to avoid the “PPP” people. He had no trouble in these few months.

6.On 27/2/2012, he left Pakistan with his passport for Guangzhou. He then went to Shenzhen. He later sneaked into Hong Kong on 31/7/2013. He did not apply for protection in China. His friend did not mention this option to him.

7.He did not think relocation was viable as the “PPP” people would be able to locate him through their network. They were still powerful even though they were not the ruling party. His parents told him that there were persistent calls threatening to kill him. However, his family was not harmed.

The Decision of the Director

8.The Director found that there was no real risk of harm from the “PPP” people.  The reasons were as follows:[3]

i.  The applicant was only assaulted once in May 2011. He had some bruises on his body. He did not need medical treatment. His injuries did not amount to ‘a minimum level of severity’.

ii.  The evidence showed that the gun shots were not aiming at him. It was into the open air. There was no intention to kill him. If they had such intention, they could have done so during the incident. Instead, they just assaulted him with sticks and fists.

iii.  While he was waiting to leave Pakistan, he stayed at his friend’s place at the same village for about 9 months until February 2012. Apart from threatening calls, he was not attacked or located. He could return home from time to time.

iv.  The Director had considered various COI.  The Director accepted that in Pakistan, there was corruption and abuse of power in the police. Mistrust of the police was common.  On the other hand, the Director noted that the Pakistani government had taken steps to monitor and improve police efficiency. An aggrieved party might complaint to the Superintendent of Police or the District Police Officer. The party might seek redress in courts. The National Accountability Bureau was established to tackle corruption. There were trainings on human rights and technical skills.  There was no evidence of State acquiescence.  In fact, the applicant chose not to report to other higher authorities.  In all, the Director was satisfied that reasonable State protection was available.

v.  The law in Pakistan allowed internal relocation. The population was about 180 million. It would be difficult for the “PPP” people to locate him. Cities such as Lahore and Islamabad were possible options. The applicant had working experience.  It was not unreasonable for him to relocate.

9.The Director dismissed his claims  in 2 decisions on 2/11/2015 and 22/2/2017.[4]

The Decision of TCAB

10.The adjudicator held a hearing on 27/7/2016 in which the applicant gave evidence.  The adjudicator found that the applicant was not credible. He fabricated the basis of his claim. The adjudicator rejected the appeal on 16/11/2016 on the following reasons:[5]

(a)   The applicant had stayed in Shenzhen for 17 months before he sneaked into Hong Kong. He told the adjudicator that he was advised by his friend to go to China to save his life. He did not ask his friend further.

(b)   He finally came to Hong Kong as his friend told him to come here for protection. He did not file any claim before he was arrested. By then, it was about 2 months after he had arrived in Hong Kong.

(c)   In his initial written representation dated 4/9/2013, the applicant stated that he was a member of “PPP” while “Z” was a member of the “PMLN” This was contradictory to his evidence in the TCAB hearing, his NCF and the screening interview. When his NCF was shown to him, he then explained that he was mistaken. He had been a supporter of “PMLN” while “Z” was a member of the “PPP”. However, later in the TCAB hearing, he reverted back to the version as in the written representation.

11.The adjudicator was sure that the applicant had fabricated his story. His appeal on BOR 3, persecution and torture risks was rejected.

12.The adjudicator accepted late filing of the notice of appeal in relation to the Director’s decision on the BOR 2 ground.[6] The applicant filed no further evidence for the BOR 2 claim.  It was not necessary to hold another hearing [7]. The adjudicator maintained his finding that the applicant was not credible. The appeal on BOR 2 was rejected on 14/12/2018.

Judicial Review

13.The applicant filed the leave application for judicial review on 18 December 2018. There was no specific complaint in his affirmation.  He did not point out any error in the TCAB decisions.

14.The Director invited the applicant to submit further information by a letter dated 27/1/2017 on ‘all applicable grounds’ including the BOR 2 ground. [8] I am prepared to accept that the applicant might have mistaken that the 1^st TCAB decision dated 16/11/2016 was not final.[9] Therefore, I do not regard his leave application out of time counting from the date of the 2^nd TCAB decision dated 14/12/2018.

15.It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.

16.I agree that there was no need to hold another hearing for the appeal of the Director’s decision on BOR 2 ground. The applicant’s inconsistency was fundamental, coupled with the delay in filing the claim, I agree that he was not credible. His factual basis was unreliable. There was no real risk of harm if he returned to Pakistan. In my view, there was no error of law or procedure, the TCAB decisions are rational.

Conclusion

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

Dated the 4^th day of October 2021.

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