Asghar Nadeem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1628/2019

[2022] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1628 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 granted.

Observations for the Applicant:

1.The applicant sneaked into Hong Kong from China by boat. He was arrested by the police on 13/8/2009. He lodged the torture claim in this case on 16/8/2009.

Background

2.The applicant was born on 10/6/1981 in Punjab, Pakistan[1]. He was a Muslim. He had 5 siblings in Pakistan. He studied up to grade 12. He worked as a time-keeper in a hotel from 2003 to 2005. He was a construction worker in UAE[2] from 2005 to 2008.

3.In May 2009, during a cricket match at his home town, he saw his teammate (“M”) shot dead by a player of the opposite team (“D”). He gave a statement to the police. Subsequently, D was arrested. Later, he gave evidence in the trial of D who was convicted and sentenced to imprisonment for 14 years. He thought the sentence was lenient because of the political connection of D’s family.

4.A few days after D’s sentence, he met D’s brothers near the bazaar. They threatened to kill him when there was an opportunity. They appeared angry. He thought it was connected with his evidence against D.

5.A week later, they threatened him again on the street. He was frightened and ran away immediately. He was depressed. He did not consult any doctor. He thought he was just mentally disturbed.

6.He did not report to the police who were incompetent. He did not want to agitate D’s brothers further.

7.Since then, he hid at various places until he finally left Pakistan on 23/7/2009 for China. He paid an agent to arrange the trip. He stayed in China until 12/8/2009 before sneaking into Hong Kong on 13/8/2009. He was informed by his friends that the other 2 witnesses who testified against D had fled to Saudi Arabia and Greece.

8.Internal relocation was not possible as the family of D had strong political connections. They could track him down. Terrorists in those cities would not spare him. His parents told him on the phone that D’s brothers had threatened to take revenge on him.

The Decision of the Director

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

i.        The applicant was only threatened verbally during the two encounters with D’s brothers. They had not assaulted him. There was no injury which amounted to a minimum level of severity.

ii.      He was safe staying at various places from May to July 2009 at his friends’ houses and a Muslim Colony. Later an agent arranged him to leave Pakistan. There was no real risk of harm.

iii.     His family was never attacked.  They were safe in the home town.

iv.     There was no evidence that any political party was involved. There was no public official involved.  His belief that D had a lenient sentence was pure speculation. It was not the case that the police refused to deal with the applicant’s case. In fact, he chose not to report. There was no evidence of State acquiescence.

v.      The Director had considered various COI.  The Director accepted that in Pakistan, there were problems of corruption, extortion, ill-treatment of detainees and witnesses.  On the other hand, the Director noted that there were reforms with positive results. An Act was passed to protect witnesses in criminal proceedings. A separate department was set up to counter terrorism.  The Punjab provincial government organized regular training to improve professionalism and protection of human rights. The Ombudsman was responsible for investigating corruption against politicians and government officials.  In all, the Director was satisfied that reasonable State protection was available.

vi.    The law in Pakistan allowed internal relocation.  It was a large country with a population of 196 million. Cities such as Lahore or Islamabad were possible options.  The applicant was 33 and had many years of working experience.  It was not unduly harsh for him to relocate.

10.Given the above, the Director rejected the claim on BOR 3, persecution and torture risk on 21/1/2015.

11.Later, the Director considered his further submission on BOR 2 risk.  The Director found that there was no evidence of arbitrary deprivation of life. He could avoid the threat from D’s family by relocating to Lahore and Islamabad. There was reasonable State protection.  This claim also failed on 18/5/2017.

The Decision of TCAB

12.The adjudicator held a hearing on 28/7/2015. The adjudicator opined that the applicant’s evidence could not support the claim.  He dismissed the claim on 23/5/2019. The reasons were as follows:

(a)         The applicant only lodged the claim after he was arrested by the police. He was never threatened or approached by anyone in Hong Kong in relation to his giving evidence in D’s trial. With the passage of time, D should have completed his sentence and released. It was unlikely that D and his family would take revenge against the applicant.

(b)         The applicant had never sustained any pain or suffering which amount to torture as defined under Part VIIC of the Immigration Ordinance. He was never attacked by any person nor was there any public official involved. There was no real risk of harm. The claim under torture risk failed.

(c)         The applicant had never suffered any injury attaining a minimum level of severity. There was no real risk of CIDTP. The BOR 3 ground failed.

(d)         There was no evidence that the applicant would be at risk of capital punishment. There was no evidence that the Pakistani government would place his life at risk. The adjudicator stressed that BOR 2 protected against the government perpetrator. However, the applicant feared only non-state actors. The BOR 2 ground failed.

(e)         There was no evidence that there was any real risk of harm because of any Convention reasons. The claim on persecution risk failed.

Judicial Review

13.The applicant filed the leave application for judicial review on 14/6/2019. In his affirmation, the applicant raised the following points:

(a)         If the adjudicator was not clear about the time of conviction and sentence, he should have clarified with the applicant during the oral hearing.

(b)         Likewise, the adjudicator was uncertain about the time when D was released on completion of his sentence. He did not clarify with the applicant during the hearing.

(c)         The adjudicator failed to consider that the applicant’s life would be more at risk if D had already been released. There was no basis to conclude that it would be unlikely for D to take revenge after he was discharged from prison.

14.The applicant attended a hearing on 15/11/2021 before this court. He had nothing to update.

15.The adjudicator has a duty to ascertain the factual basis of the applicant’s claim. Any error in the findings of fact would render the decision unfair.

16.In his decision, the adjudicator pointed out that the applicant only filed the non-refoulement claim after he was arrested by the police (emphasis added). While this is true, the adjudicator seemed to have overlooked that the applicant was arrested by the police on the same day (13/8/2009) when he sneaked into Hong Kong. He filed the claim 3 days later (16/8/2009). It appears that the adjudicator had taken an adverse view against the applicant on this background which is unfair.[4]

17.The adjudicator seemed to be uncertain about the time D was convicted and sentenced. While there is no exact date in the evidence, it must be sometime between May and August 2009, or else, the brothers of D would not have threatened the applicant leading to his flee from Pakistan.

18.The applicant’s case is that he would be at risk if refouled. The fact that there was no one threatening the applicant in Hong Kong is neither here nor there. The issue should be that he would face real risk of harm if returned to Pakistan.

19.The adjudicator opined that if D had completed his sentence, it would be unlikely for D and his family to take revenge on the applicant. This reasoning is difficult to follow. The criticism by the applicant in 13(c) above is reasonably arguable.

20.The adjudicator opined that BOR 2 protected the applicant against the State perpetrator. Since the applicant was afraid of non-state actors—D and his family—he did not have protection under BOR 2. This is obviously wrong in law as BOR 2 covered the risk to life from both State and non-State agents. [5]

Conclusion

21.Given the above, it is reasonably arguable that the TCAB decision was unfair and irrational. The decision is wrong in law in relation to BOR 2 risk. This court grant leave for judicial review of the TCAB decision on all grounds.

Dated the 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