Muhammad Tanveer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2351/2018

[2022] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2351 of 2018

BETWEEN

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 claimed to have sneaked into Hong Kong by boat from China. He was arrested by the police for unlawful remaining on 26/3/2007.  He had raised a torture claim which was rejected by the Director on 6/6/2012. He filed the present non-refoulement claim on 24/3/2014.

Background

2.The applicant was born on 2/3/1982 in Sheikhupura, Pakistan.  He married an Indonesian in Hong Kong in 2010 according to Islamic law. He had 2 children. His siblings and mother were in Pakistan. He last worked as a laborer in Lahore in 2006.

3.About March 2006, he intended to marry a woman (“S”). His uncles objected as it was the tradition to arrange marriages within the family. They threatened to kill him as the intended marriage bring disgrace to the family.

4.Later, one of the uncles came to his home. That uncle assaulted him during the discussion. He was not injured. That uncle threatened to kill him. He did not report to the police. His parents arranged him to leave Pakistan. He stayed in Lahore for 2 weeks before leaving on 7/9/2006 for China. He stayed in Guangzhou for 7 months before sneaking into Hong Kong on 12/3/2007. He did not apply for protection in China as that was not arranged by the agent. He approached the UNHCR in 2012 but did not know the result.

5.One of the uncle wanted the applicant to marry his younger daughter. The uncles were still angry with him. His mother asked him not to return especially that he had married an Indonesian in Hong Kong.

6.He did not think the police would assist as this was a family dispute. It would also be difficult for him to relocate to other cities as the uncles were powerful and could locate him anywhere in India. He did not want to separate from his wife and children in Hong Kong.

The Decision of the Director

7.The Director dismissed his claim on 10/1/2018 as the risk of harm was low[1]. The reasons were as follows:

i.  The applicant was only assaulted once by one of the uncles in March 2006. He was not injured. It did not amount to a minimum level of severity. The future risk of harm was unlikely to occur.

ii.  He continued to stay at home after the assault in March 2006. He then moved to Lahore in August 2006 before leaving Pakistan in September 2006. He was safe during this period. There was no attempt from his uncles to harm or kill him.

iii.  There was no evidence that his uncle had the resources to trace him anywhere in Pakistan.

iv.  He did not report to the police. There was no evidence that the police in Pakistan was unwilling or unable to protect him.

v.  He could leave Pakistan through normal channel. He was not targeted. There was no evidence that public official was involved.

vi.  The Director accepted that in Pakistan, the police were corrupt and resorted to extortion, cronyism and embezzlement. They were inefficient and in low morale. On the other hand, the Director noted that the Pakistan government had measures to improve efficiency and training in human rights for the police. The Ombudsman was established to protect human rights and compliance with the rule of law. Complaint channels had been improved. The National Accountability Bureau was established to tackle corruption. There were news reports that officers and politicians 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 204 million. It was a large country. It would be difficult for his uncles to locate him. Given his age and experience, Karachi and Lahore would be viable options for relocation.

The Decision of the Board

8.The adjudicator found that the evidence of the applicant was not truthful. There was no real risk of harm. She dismissed the appeal on 24/9/2018.  The reasons were:

i.  The applicant’s written submission was that it was not permitted to marry outside the family. However, he told the adjudicator that his two siblings had married outside the family without any consequences. This situation was inconsistent with the marry-within-family rule. He explained that his uncle wanted him to marry his daughter—that cousin. The adjudicator did not accept that age differences prevented his other siblings to marry that cousin earlier on. In fact, some COI revealed that a large percentage of Pakistani girls would marry before the age of 18.

ii.  The applicant further explained that it was the wish of his grandmother that he should marry the cousin. This assertion was not mentioned before.

iii.  It was unreasonable that the applicant only learned of the marry-within-family rule after he decided to marry another woman outside the family.

iv.  The applicant told the adjudicator that his uncle came to his home frequently and to the factory in Lahore asking about him. These were never mentioned before. On the contrary, his evidence was that he was safe at home and in Lahore before he left Pakistan. The adjudicator found that this further harassment by his uncle was a fabrication.

v.  The applicant had not mentioned in the torture claim questionnaire in 2012 that he had married an Indonesian and had children in Hong Kong. This should have aggravated his fear from his uncle. His failure to mention it was damaging to this basis of his claim. The adjudicator doubted whether there was any fear arising from the marry-within-family rule.

vi.  There were relocation options which would further lower the risk, if any, from his uncle. The adjudicator did not accept that his uncles would be able to locate him merely because they were in the transport industry.

Judicial Review

9.The applicant filed the leave application on 25/10/2018. In the affirmation, the major complaint against the TCAB could be summarized as the following:

a)  There was no basis for rejecting his credibility,

b)  Failure to consider extended form of state acquiescence,

c)  Failure to consider the COI,

d)  No proper basis for accepting reasonable internal relocation options.

10.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.

11.The applicant’s inconsistency was serious. His evidence on the marry-within-family rule was not credible. The adjudicator had analyzed the evidence in great detail. I agree with her. Besides, the applicant failed to disclose his marriage in Hong Kong despite that this was highly relevant to his fear to return. I agree with the adjudicator that the applicant was not credible.

12.The assertion of the fear based on the marry-within-family rule was rejected by the adjudicator. There was no real risk of harm in Pakistan. There was no need to consider State protection or extended acquiescence. In any event, the applicant had not reported the assault by his uncle to the police.

13.The adjudicator disbelieved the applicant. There was no real risk of harm. On that basis, the adjudicator needed not consider the COI in Pakistan. Nor was it necessary to consider State protection or internal relocation.

14.In my view, there is no error of law or procedure, the TCAB decision is rational.

Conclusion

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

Dated 24^th day of March 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