Case Document

100%Judiciary

HCAL 1525 /2021

[2022] HKCFI 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1525 of 2021

BETWEEN

	Hussain Adnan	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 was allowed to stay in Hong Kong as a dependant from 2/6/2009 to 2/6/2016. There were several extensions of visa.[1] He surrendered to the Immigration Department on 29/11/2016 for overstaying.

2.He was granted dependant status afresh and permitted to stay from 18/7/2018 to 14/3/2019. He committed various offences and was sentenced to imprisonment.[2]

3.He filed the non-refoulement claim in this case on 4/6/2019 and 24/7/2019. He withdrew his claim on 6/11/2019. While on recognizance, he committed offences again and was sentenced to imprisonment. He was detained in CIC after serving sentence since 22/1/2021.[3] Subsequently, the Director allowed his application to re-open his claim.

Background

4.The applicant was born on 5/11/1995, in Rawalpindi, Punjab, Pakistan. He was a Muslim. He was married with one son. He received education for 2 years. He last worked as a general worker from 2009—2017. His father lived in Hong Kong. His wife and son lived in Pakistan. He did not support any political party.

5.His father and uncle inherited a piece of land in equal shares from his grandfather. One day when the applicant was around 12 years old, his uncle and cousins came to his home. They claimed that the whole piece of land belonged to them. His father disagreed and was assaulted. They even brandished pistols to scare his family off. They threatened to kill him as he would be the one to inherit the share of the land. His father sustained minor injuries. His family decided not to report to the police. Since then, his cousins came to his home occasionally and demanded his family to give them the land.

6.In 2009, he came to Hong Kong to join his father as dependant. In 2011, he returned to Pakistan for 3 months. He was safe in the home village.

7.Nothing eventful happened until 2014 when he returned to Pakistan for holiday. His cousins confronted him in a restaurant. They demanded him to transfer the share of land. They threatened to kill him. His friends told his cousins to leave. He was not injured.

8.A week later, he met the cousins on the street. They assaulted him for about 15 minutes causing injuries on his body and nose. The injuries were not serious. He treated the injuries by himself. He did not report to the police. Three weeks later, the cousins apologised to him after a family meeting.

9.While he was in Hong Kong in 2020, his wife told him that the cousins came weekly to check on him. They threatened to kill him. This threat persisted up to 2021. However, his cousins did not attack his family.

10.He did not want to relocate as his mother was living at the home village. The police would not protect him as they were corrupt. He knew nothing about Ombudsman. The government would not protect an ordinary person like him.

Decision of the Director of Immigration

11.On 15/4/2021, the Director of Immigration found that the risk of harm was low. The Director rejected the claim on the following grounds:[4]

a.     There were three incidents of assault by the uncle and cousins. Once when he was 12 years old and twice in 2014. He was not seriously injured. He could treat the injuries by himself. The injuries did not amount to a minimum level of severity. His cousins had no real intention to harm or kill him. The fear for future risk of harm was far-fetched.

b.     The land dispute was a private matter. There was no evidence that the Pakistani authorities were involved. There was no evidence that the Pakistani authorities would refuse to protect him if he returned. There was no evidence that his uncle and cousins had the resources to locate him nationwide.

c.     The applicant returned to Pakistan in 2011 and 2014. He visited his wife there. This was inconsistent with his assertion that he was subject to imminent danger of harm from his cousins.

d.     He had not returned to Pakistan since 2014. His family was never attacked. The long lapse of time indicated that the hostility with his cousins would have dissipated.

e.     The applicant had not reported to the police. It was not the case that the police refused to investigate. He could leave Pakistan without any problem. He was not targeted by the State.

f.     The Director accepted that in Pakistan, there was corruption and abuse of power and human rights violations in the police. They were inefficient and not professional. On the other hand, the Director noted that the Pakistani government had taken steps to improve police efficiency. The civil court system was tasked to deal with human rights petitions. There was independent judiciary. A party might seek redress in courts. The National Accountability Bureau was established to tackle corruption. The office of the Ombudsman had been dealing with maladministration at all levels. There were news reports that officers and politicians were punished for committing offences. The Director was satisfied that there was reasonable State protection.

g.     Internal relocation was permissible in Pakistan. The population was about 233 million. It was a large country. It would be difficult for the family of his cousin to locate him. Given his age and 9-year-working experience, Lahore and Islamabad would be viable options for relocation.

The decision of the Torture Claim Appeals Board

12.The applicant attended 2 hearings scheduled on 2/9/2021 and 17/9/2021. The Adjudicator dismissed his appeal on 11/10/2021. The Adjudicator found the applicant unreliable and evasive. His account was vague and implausible. In view of his father’s evidence, the adjudicator rejected the factual basis of the applicant’s claim. The adjudicator pointed out the following aspects and found that there was no real risk of harm:[5]

a.     The evidence of his father was reliable and was accepted. What the applicant asserted in his NCF was contradictory to the evidence of his father. The applicant made up facts and the roles of his brothers, sisters, his uncle and his cousins.

b.     The applicant’s father did not have any land dispute with the applicant’s uncle. The only land dispute concerned the small piece of land from the great-grandfather. However, this dispute was never in the manner as the applicant asserted. The adjudicator was not satisfied with the explanation of the applicant.

c.     Taking into account his father’s evidence, the adjudicator rejected the assertion about the 3 incidents of confrontation.

d.     After the incidents in 2014, the applicant returned to Hong Kong. He did not raise any claim until June 2019. He explained that his cousins returned to Pakistan in 2020 and looked for him again. This could not explain why he raised the claim in 2019.

13.The Adjudicator found no evidence of torture, ill-treatment under BOR 3 and risk to life under BOR 2. There was no persecution under the Refugee Convention.

14.The Adjudicator found that it would be safe for the applicant to relocate either in Lahore, Karachi or Islamabad.

Leave for Judicial Review

15.The applicant filed the leave application on 3/11/2021. He disagreed with the decision of the TCAB. He maintained that his life was in danger if refouled.

16.The evidence of the applicant was contradicted by his father’s evidence. The adjudicator had the chance to observe the manner they gave evidence. Her finding on credibility is reliable. I agree with the adjudicator. The applicant is not truthful. The adjudicator was right to reject his evidence.

Conclusion

17.Having considered the above, I agree with the findings of the Adjudicator. I do not find any error in law or in procedures. The TCAB decision was reasonable.

18.In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.

Dated 15^th day of February 2022.

(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 15 February 2022 Hussain Adnan 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 15 February 2022 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17932/21/5/45/P3454 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 302/21 (Formerly RBCZ 10236/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)