Shafiq Junaid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1600/2019

[2022] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1600 of 2019

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 30/11/2015. He surrendered to the police on 1/12/2015.  He raised the non-refoulement claim in this case on 3/12/2015.

Background

2.The applicant was born on 27/9/1987 in Punjab, Pakistan[1]. He was divorced. His family was in Pakistan. He had education for 10 years. He operated a retail business from 2009 to 2014 at his home town. He was a member of the PPP[2]and assisted in canvassing votes.

3.His wife was from a wealthy family. They supported the PML(N) [3]. They had friends who were in the National Assembly and in the Provincial Assembly.

4.In 2007, he purchased a piece of land from his wife’s family in the home town. It was at a price of 1.5 million PKR[4]. Its value had increased to 4.5 million PKR. He registered his name as the owner in the town land office. However, his wife’s grandfather was still the owner under the Patwar system.[5]

5.In late 2013, the uncles of his wife wanted the land back. He refused. In April 2014, the uncles came to his shop and assaulted him. They threatened him to transfer the land to them. He had bruises on his face and needed medication from a hospital. He did not report to the police as he could not afford a bribe.

6.In May 2014, several strangers came to his shop. They assaulted him and damaged his goods and furniture. They were from PML(N). They threatened to kill him if he did not transfer the land to the uncles of his wife. He was injured with wounds on his face and chest. He was hospitalized for one day. He did not report to the police. In June 2014, he divorced his wife.

7.He returned to her parent’s village. He was safe. However, the family of his wife still pressed him to transfer the land.

8.In June 2015, he left Pakistan for Guangzhou. He then sneaked into Hong Kong by boat from Shenzhen.

9.He did not think the police would assist as they were corrupt. He thought his wife’s family would be able to trace him. It would also be difficult for him to relocate to other cities.

The Decision of the Director

10.The Director dismissed his claim on 27/3/2018 as the risk of harm was low. The reasons were as follows:[6]

i.     The applicant was assaulted twice in 2014. His injuries were not serious. It did not amount to a minimum level of severity.

ii.    After his divorce, he returned to his home village which was quite close to his wife’s family. He was safe there. This showed that there was no imminent danger of harm from the family of his wife. His life was not at risk.

iii.   The applicant did not know the position of the uncles in PML(N). He himself was not a prominent member in the PPP. There was no reason that the PML(N) was involved in this dispute. There was no evidence that the friends of his wife’s family in the National Assembly or the Provincial Assembly were involved.

iv.   He chose not to report to the police. It was not the case that the police in Pakistan failed to exercise their duties.

v.    He could leave Pakistan with his passport. He was not targeted by the government.

vi.    The Director accepted that in Pakistan, there was corruption and abuse of power in the police. The police were inefficient and unprofessional. On the other hand, the Director noted that the Pakistani government had taken steps to improve police efficiency. The revenue court system was set up to deal with land disputes. The party might seek redress in courts. Complaint channels were improved by IT technologies to expedite complaints. The National Accountability Bureau was established to tackle corruption. The office of the Ombudsman had been dealing with maladministration. There were news reports that officers were punished for corruption. The Director was satisfied that there was reasonable State protection.

vii.  Internal relocation was permissible in Pakistan. The population was about 201 million. It was a large country. It would be difficult for the family of his wife to locate him. Given his age and experience, Karachi and Hyderabad would be viable options for relocation.

The Decision of the Board

11.There was an oral hearing held on 14/1/2019. The TCAB found that the evidence regarding the land dispute was pure assertion without any documentary proof. The adjudicator dismissed the appeal on 6/6/2019 on all grounds.  The reasons were:

i.     The applicant told the adjudicator that the family of his wife wanted to kill him as he divorced his wife. This was not mentioned in his NCF and was never his case.

ii.    The applicant claimed that the family of his wife were supporters of PML(N) and he was a member of the PPP. However, nothing in his evidence showed that the incidents he encountered were politically motivated.

iii.   The applicant asserted that he was assaulted by the uncles and their men. However, the injuries did not reach a minimum level of severity. The evidence did not support any intention to kill.

iv.   The applicant had never reported to the police. This undermine the credibility of his assertion. Despite corruption, the COI supported that there were institutions which addressed these issues.

v.    The assertion that the family of his wife could locate him anywhere in Pakistan was not supported by any evidence. In fact, after the divorce, he returned to live with his parents. The family of his wife was close-by. He was safe nevertheless. Besides, the population in Pakistan was large, it would be difficult to locate him.

Judicial Review

12.The applicant filed the leave application on 12/6/2019. In his affirmation, he did not point out any specific error in the decision of the TCAB.

13.He attended an oral hearing before this court on 15/11/2021. His uncle had come from the UK to Pakistan to settle the dispute. He wanted to stay in Hong Kong for the time being.

14.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.

15.The applicant’s inconsistency was serious. His evidence was mere assertions without any documentary proof. This court agrees with the adjudicator that the applicant was not truthful. There was no real risk of harm if he returned to Pakistan. There is no error of law or procedure, the TCAB decision is rational.

Conclusion

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

Dated 10^th day of February 2022.

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