Case Document

100%Judiciary

HCAL 2199/2018

[2021] HKCFI 3423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2199 of 2018

____________________

BETWEEN
	Rizwan Khan	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 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 entered Hong Kong illegally from China on 2/1/2007. He was arrested by the police on 31/1/2007. He raised a torture claim on 25/8/2008 which was later treated as a non-refoulement claim.

Background [1]

2.The applicant was born in Pakistan on 17/12/1982 in Lahore, Punjab, Pakistan. He is single. He had no formal education. He was an odd job worker in Lahore from 1989 to 2004. He operated a partnership selling spare parts in 2005 and 2006. His mother and siblings were in Pakistan. After the death of his father, his uncle (“Yaseen”) did not allow his family to live in the joint family house. His family moved to live with his maternal grandmother. He had not joined any groups or organization. He was never charged or detained in Pakistan.

3.The applicant’s mother told him that his grandfather gave a piece of land to his father in Lahore [2]. Yaseen had been occupying the land illegally. After the death of his father, Yaseen used some forged documents to obtain the title of the land from the land department. He was unable to locate the genuine title documents of the land. His mother had not negotiated with Yaseen about the land.

4.Yaseen was a rich man. He had connections with gangsters. He was notorious in taking others’ land illegally. Yaseen’s family supported the PPP[3] but he heard from a friend that he changed allegiance to PML(N)[4] since 2013. Yaseen also associated with the local police.

5.One day in 2004, he went to negotiate with Yaseen about the land. He was threatened by Yaseen and his 2 sons that they would kill him. They then assaulted him. Yaseen stabbed him twice at his stomach. He was semi-conscious. They then dumped him at a nearby township in Lahore. Eventually, his family was alerted and took him to a hospital. He received treatment and recovered in about 8 weeks.He reported to the police but they did not believe in him. There was no follow up investigation.

6.After he recovered, his family moved to another village. He and his family moved to various villages and stayed at each village for a couple of years.[5] They moved to various places to avoid Yaseen. However, he was constantly threatened by people from Yaseen. His partnership business was also disrupted. He tried to report to the police in his township. However, the police asked for a bribe which he could not afford.

7.While hiding from Yaseen, he applied visas for Nepal, Malaysia and China. However, he had no money to buy the air ticket. Finally, in September 2006, his friend paid an agent for arranging him to leave Pakistan. He departed Pakistan for China. There was no problem. He stayed in China until January 2007 and sneaked into Hong Kong on 2/1/2007.

8.He could not solve the dispute in court. Yaseen would be able to influence the officials. The police were corrupt and would not assist poor people. He had no means to relocate to other cities. Yaseen would be able to trace him. If he returned to Pakistan, Yaseen would kill him.

The Decision of the Director

9.The Director dismissed his claims on 18/12/2014 which covered the BOR 3 risk^{^[6]}, the persecution risk^{^[7]} and the torture risk^{^[8]}.

10.The Director found that there was low risk of harm from Yaseen. The reasons were as follows:[9]

i.        While he asserted that he was stabbed twice by Yaseen. He only needed bandaging and was given some tablets. He could recover in about 8 weeks. There was no further attack by Yaseen. After he recovered, he could move around places of residence and attended to his business. The low intensity and low frequency of the ill-treatment from Yaseen was indicative of a low likeliness of future risk of harm. The injuries did not amount to a minimum level of severity.[10];

ii.      There was only one attack by Yaseen. While they constantly threatened him, they did not take any action to harm him. Even during the time that he moved from place to place, they did not try to enter his house and harm him. He could continue working in his partnership business. There was no intention to kill. The risk of future harm was low.[11]

iii.    Although Yaseen was said to be a supporter of the PML(N), it cannot be assumed that they acted in an official capacity. The dispute was private in nature. There was no involvement of the PML(N) or any government officials; [12]

iv.    According to relevant COI, there was a revenue court which was responsible for adjudicating land disputes. While the court might have been overloaded, the applicant had never tried to resolve the dispute in a court. His assertion that Yaseen could influence officials was only his speculation; [13]

v.      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 improve police efficiency. The Punjab provincial government had conducted regular training of the police at all levels. An aggrieved party might complaint to the Superintendent of Police or the District Police Officer if a report was not registered. The party might seek redress in courts. The National Accountability Bureau was established to tackle corruption. There were improved channels for taking complaints. The office of the Ombudsman had been dealing with maladministration. There were reports that officers were punished for corruption. The applicant had not taken his complaint to any higher authorities. There was no evidence that the police or the government were unwilling to assist him. The Director was satisfied that there was reasonable State protection.[14]

vi.    Internal relocation was permissible under the law. The population was about 187 million. It would be difficult for Yaseen to locate him. Given his experience, Faisalabad and Rawalpindi would be viable options for relocation.[15].

11.By a decision dated 24/2/2017, the Director also dismissed his claim for protection based on BOR2 risk^{^[16]}.

The Decisions of the Board

12.There were 2 oral hearings. The applicant indicated that he did not wish to answer questions from the adjudicator. The TCAB dismissed the appeal on 18/10/2016.

13.The TCAB dismissed the claim based on BOR3 risk, persecution risk and torture risk. The reasons were that:[17]

i.        The applicant was not an honest witness. He had only one uncle whose name was Yaseen. He told the adjudicator that this uncle had passed away in about 2000. The harassment by Yaseen could not have happened in 2004 as he asserted. [18]

ii.      The applicant claimed to be the eldest child in the family. That was the reason why he took up the task to negotiate with Yaseen. However, he told the adjudicator that there was an older brother, Usman, who was a few years senior to him.[19]

iii.    The applicant told the Director during the screening interview that he moved to various villages and lived there for a few years each. However, he told the adjudicator that he only lived at those villages for a few months each.

iv.    In his NCF, the applicant asserted that he approached the UNHCR 2 days after he arrived at Hong Kong. However, also in his NCF, he asserted he approached the UNHCR around 2008. Given that he was arrested on 31/1/2007, the latter cannot be right.

v.      The applicant failed to establish a plausible account that he had been harassed by Yaseen.

14.The applicant also appealed against the Director’s Further Decision. The applicant attended a hearing on 3 October 2018 before the TCAB. The applicant asserted that “his problem back at home has been resolved”. He was prepared to return to Pakistan. The Board dismissed the applicant’s claim based on BOR 2 risk.

Judicial Review

15.The applicant filed the leave application on 11/10/2018. He complained in his affirmation that the adjudicator had failed to consider all evidence and the risk to his life in Pakistan.

16.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.

17.The applicant’s inconsistency was serious. This court agrees with the adjudicator that he was not credible. His factual basis was not plausible. There was no real risk of harm if he returned to Pakistan. There was no error of law or procedure, the TCAB decisions are rational.

Conclusion

18.This court refuses leave for the intended judicial review. It is not reasonably arguable. There is no reasonable prospect of success.

Dated 18^th day of November 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 18 November 2021 Rizwan Khan 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 18 November 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 648/14/12/141/P190 & BOR 275/17/3/46/P78 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 9/09 & RBCZ 9001546/16 (formerly RBCZ 1570/08) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] Decision of the Director dated 18/12/2014, §§6—7.

[2] It was about 1000 sq. ft. and worth about 8 million rupees.

[3] Pakistan People’s Party.

[4] Pakistan Muslim League N.

[5] Decision of the Director dated 18/12/2014, §7.22.

[6] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap.383

[7] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[8] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[9] Decision of the Director dated 18/12/2014, §§12—23.

[10] Decision of the Director dated 18/12/2014, §13.

[11] Decision of the Director dated 18/12/2014, §14.

[12] Decision of the Director dated 18/12/2014, §16.

[13] Decision of the Director dated 18/12/2014, §15.

[14] Decision of the Director dated 18/12/2014, §16—18.

[15] Decision of the Director dated 18/12/2014, §19—23.

[16] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[17] Decision of the TCAB dated 18/10/2016, §§19—25.

[18] Decision of the TCAB dated 18/10/2016, §§19—22.

[19] Decision of the TCAB dated 18/10/2016, §23(a).