Shakeel Awais v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2026/2018

[2021] HKCFI 3879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2026 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:

1.The applicant sneaked into Hong Kong from China by boat on 10/3/2009.  He was arrested by the police on 17/3/2009.  He lodged a torture claim on 19/3/2009 which was rejected by the Director on 26/7/2013.  He lodged the non-refoulement claim in this case on the same day.

2.During the interim in 2010, the applicant was convicted of various offences and was sentenced to imprisonment for 12 months.[1]

Background

3.The applicant was born on 4/4/1989. He was raised in New Abadi, District Gujrat, Pakistan. He had 4 siblings in Pakistan. His father was in Hong Kong. He studied up to grade 8.

4.His father was a contractor in building construction. In 2007, his father travelled to Greece to find a job with 2 friends and an unknown man.  During the journey, the unknown man was sick and eventually died.  His father returned to Pakistan and explained to the family of the unknown man (the “family”).  They did not accept but accused his father and his friends of murder.  Meanwhile his father’s friend hid themselves.  His father decided to leave home for his safety.  Someone fired at his father near the transport terminus.  His father was not injured as the shot was block by a passing vehicle.  His father believed the attacker was sent by the “family”.

5.Later in 2008, he learned that his father had gone to China.  It transpired the “family” was wealthy and supported PML-Q[2]. The members of that party conducted various illegal activities.

6.After his father fled, he was attacked at school by 5 students who were relatives of the “family”.  There were 3 attacks during October to November 2008.  He was punched and kicked in the 1^st attack.  He did not need treatment.  Two days later during the 2^nd attack, they stabbed him with a hook at his leg.  A doctor bandaged his wound.  Four days later, they assaulted him in an alley with punches and scratches.  They threatened to gouge his eyes.  They said the “family” would not spare his father.  He was treated in a hospital and sick leave from school for 10 days.  The school authority did not take action against them as they were from the “family”.

7.He stopped schooling.  He did not report to the police.  He left home for China in February 2009.  There was no problem with the Pakistan authorities.  He claimed that he surrendered to the police on 1/3/2009.

8.His family were attacked by some unknown men.  His mother reported to the police who refused to assist.  His mother moved to Lahore in March 2014.  She was safe there.  His friend told him that people from the “family” still asked around about him.  His friend was killed in November 2014. He believed it was done by the “family” as his friend refused to disclose his whereabouts to them.

9.He believed the “family” would be able to locate him as they had wide networks.  He did not think Lahore was a viable option.  He did not contact anyone at home after his friend was murdered.  He feared the “family” would kill him if he returned to Pakistan.

The Decision of the Director

10.The Director found that the risk of harm was low.  The reasons were as follows:[3]

i.        The applicant was attacked by the 5 students at school.  He did not suffer severe injuries.  He could recover within 2 weeks.  It did not amount to a minimum level of severity.

ii.      Apart from the incidents at school, he was safe at home until he left Pakistan in February 2009.  The “family” had no intention to kill him.

iii.    After he left, his family was threatened verbally.  They were never attacked.  His mother was safe in Lahore.

iv.    He was not directly involved in the alleged death of the unknown man.  If the “family” wanted to put pressure on his father, there was no reason to attack the applicant only while all other siblings and his mother was safe.

v.      There was no evidence that his friend was killed by the “family” or people from the PML-Q.  His belief that it was done by the “family” was pure speculation.

vi.    The Director had considered various COI.  The Director accepted that in Pakistan, there was corruption, extortion, cronyism and embezzlement.  On the other hand, the Director noted that there were reforms with positive results.  The Punjab provincial government organized regular training to improve professionalism and protection of human rights. The NAB[4] was responsible for investigating corruption against politicians and government officials.  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.

vii.  The law in Pakistan allowed internal relocation.  It was a large country with diversity. Many large urban centers were home for mixed ethnic and religious communities. There were job opportunities and greater access to services. Cities such as Lahore, Rawalpindi or Islamabad were possible options. The applicant was young.  It was not unreasonable for him to relocate.

11.Given the above, the Director rejected the claim on BOR 3, persecution ground on 2/9/2015.

12.Later, the Director considered the BOR 2 risk on the existing information as the applicant did not file additional evidence.  The Director found no evidence of arbitrary deprivation of life.  This claim also failed on 20/10/2016.[5]

The Decision of TCAB

13.The adjudicator held a hearing on 25/10/2017.  The applicant did not attend.  The adjudicator did not accept the explanation of the applicant who alleged that he called the wrong number.  The adjudicator dealt with the appeal on paper.  He rejected the claim on 7/9/2018.

14.The adjudicator opined that the applicant’s evidence could not support the claim.  He did not accept the applicant’s story.  He dismissed the claim on reasons as follows:[6]

(a)   The applicant had no contact with his father since the latter left home. It was unconvincing that the applicant knew his father was shot at the transport terminus. There was no evidence that the attacker was from the “family”. It was pure speculation.

(b)   The applicant asserted that he was attacked by relatives of the “family” at his school. He had some injuries. Those injuries did not attain a minimum level of severity.

(c)   The applicant did not report to the police. It was not the case that the police refused to take action against the “family”.

(d)   The COI indicated that there was reasonable State protection in Pakistan.

(e)   The applicant had left Pakistan nearly 8 years ago in 2009. There was no evidence that the “family” still targeted the applicant in Pakistan. In fact, his mother and siblings were safe in Lahore.[7]

(f)    There was no substantial risk of ill-treatment. BOR 3 ground failed.

(g)   The adjudicator opined that the alleged assault was not connected with any Convention reasons.  There was State protection. His claim on persecution risk failed.

(h)   The applicant failed to file further evidence for BOR 2 claim.  The adjudicator considered the BOR 2 claim based on all existing information.  There was no evidence of arbitrary deprivation of life.  BOR 2 ground failed.

Judicial Review

15.The applicant filed the leave application for judicial review on 26 September 2018. There was no specific complaint in his affirmation.  He did not point out any error in the TCAB decision. He stressed that it was not safe in his country.

16.The adjudicator was justified to deal with the claim on paper as the applicant’s explanation was unsatisfactory. Given the evidence, the applicant failed to establish that there was real risk of harm. I agree with the conclusion of the adjudicator.  The TCAB decision was reasonable.  There was no error in law or procedure either.

Conclusion

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

Dated the 30^th day of December 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