Mahmood Tariq v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2112/2018

[2022] HKCFI 790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2112 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 1/1/2016. He was arrested by the police on the same day.  He lodged the non-refoulement claim in this case on 3/1/2016.

Background

2.The applicant was born on 20/9/1982 in Punjab, Pakistan. He had education for about 8 years.  He was self-employed for 4 years.  His family was in Pakistan.  He was a supporter of PTI[1] since 2007.  He joined their campaigns in the home village.

3.Around 2009, Ijaz and his subordinates (Ilyas and Saeed) came to his house to persuade him to support PML(N)[2]. He refused.  At that time the majority of villagers supported PML(N).  In 2013, PTI lost in the election.  Since then, supporters of PML(N), including Ijaz and his subordinates, harassed and assaulted supporters of PTI.  He however was not injured. 

4.One day in mid-2013 after the election, 6 supporters of PML(N) including Ijaz’s subordinates stopped him and disallowed him to work in the factory.  It was meant to be a punishment for not supporting PML(N).  He was not attacked.  Later he learned that other PTI supporters were also treated similarly. 

5.About 5 days later, he was stopped by the same group again on his way to work.  They assaulted him for 10 minutes and left.  He did not seek treatment.  He did not report as the police were in favour of PML(N).  After the incident, he moved to Jamila Abad Colony which was a city about 44 km from the home village.  He was safe there for a year.  He worked at the same factory until he was sacked.  He then returned to the home village.  He continued to participate in the activities of PTI during this period.

6.In mid-2014, He was forced to pay Ijaz’s subordinate 50,000 PKR[3] so that they would stop harassing him.  He reported to the police but there was no result.  Later, Ijaz’s subordinate came to his house.  They blamed him for making a report.  They threatened him.  He was not assaulted.

7.In May 2014, he was forced to work in the farm of Ijaz.  When he asked for his wages, Ijaz assaulted him.  His right knee was seriously injured. His brother was informed and took him to a hospital.  He received an operation and stayed home for 4 months.  He was not threatened during this period.  In late 2014, he moved to Jamila Abad Colony again and worked for another factory. He did not participate in any PTI activities.

8.In mid-2015, Ijaz located him and asked him to work in the farm again.  There were several occasions in which he was assaulted.  He refused to work for Ijaz.  On one occasion, one of them brandished a pistol threatening to shoot.  He was injured each time and took 10 days to recover.

9.In late 2015, he moved to stay with a friend in Haroonabad which was about 300 km from the home village.  He was safe there.  He paid an agent who arranged him to leave Pakistan for Guangzhou on 24/12/2015.  He paid another agent who arranged him to sneak into Hong Kong by boat on 1/1/2016.

10.He did not think the authorities would protect him as he supported the PTI.  Internal relocation was not viable as he had no connections elsewhere. 

The Decision of the Director

11.The Director found that there was no real risk of harm.  The reasons were as follows:[4]

i.     The applicant was attacked several times by Ijaz and his men.  He did not suffer severe injuries.  The injuries were not life threatening.  The injuries did not amount to a minimum level of severity.

ii.    He had supported PTI since 2007.  There was no harassment by supporters of PLM(N) before mid-2013.  In the several incident in 2013 to 2015, had they wanted to kill him, they could have done so.  In fact, he was never fatally attacked.  This showed that there was no intention to kill him.

iii.   There was no evidence that PML(N) was behind all these harassment and assaults.  He was not targeted.  It appeared that Ijaz and his subordinates wanted to extort money and forced him to work for them.  It was a private dispute.

iv.   The applicant stayed away from the home village for a period but returned subsequently.  He moved to another city and worked there without any problem.  He did not leave the country at the first available opportunity.  This showed that the risk of harm was not imminent.

v.    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[5] was responsible for investigating corruption against politicians and government officials.  The Ombudsman Punjab dealt with grievances and complaints.  News reports revealed that officers were arrested for corruption and misuse of power.  There was no evidence that the Pakistani police was unable or unwilling to discharge their duties.  The Director was satisfied that reasonable State protection was available.

vi.   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.  Cities such as Lahore, Karachi or Islamabad were possible options.  The applicant was young.  It was not unduly harsh for him to relocate.

12.Given the above, the Director rejected the claim on 24/10/2017. 

The Decision of TCAB

13.The adjudicator held a hearing on 27/2/2018.  She found that the applicant was not credible.  She rejected the factual basis of the applicant’s claim and concluded that there was no real risk of harm on 3/8/2018.  The reasons were as follows:

(a)     The applicant was vague in explaining his support of the PTI.  He said in the NCF that he was motivated by the aims of the PTI.  However, he could not be more specific apart from some general platitudes.  Instead, he told the adjudicator that he supported the PTI as the MNA[6] from his area was kind and helpful.  The adjudicator found this unconvincing.

(b)     All along, the applicant asserted that he engaged in activities of the PTI, however, there was no concrete evidence as to what he actually did.  He could not give any detail.  In fact, he mistook that the election in 2013 was held in March.  It should be in May.  Given that his mission was to canvass votes, his mistake was not acceptable.

(c)     The applicant told the adjudicator for the first time that he had deflected from PML(N) to support PTI before the harassment by Ijaz.  Had this been the case, he must have mentioned it earlier.  If this was true, Ijaz must have harassed him earlier.

(d)     The applicant told the adjudicator that it was about 3 months after the election in 2013 that the harassment by Ijaz began.  However, in his NCF, he stated that it started in 2009.

(e)     The applicant had been canvassing support for the PTI for several years before the election in 2013.  It was unconvincing that Ijaz would only target him after the election in 2013.

(f)     The applicant was inconsistent about the circumstances surrounding the extortion of 50,000 PKR by Ijaz.  He was also inconsistent as to the number of assaults by Ijaz and his subordinates while he was in Jamila Abad Colony for the second time.

Judicial Review

14.The applicant filed the leave application for judicial review on 3/10/2018.[7]  There was no specific complaint in his affirmation.  He did not point out any error in the TCAB decision. 

15.The adjudicator had examined the evidence in detail.  The applicant was given ample opportunities to explain.  His explanation was unacceptable.  He failed to establish that there was real risk of harm.  I agree with the conclusion of the adjudicator that the applicant was not credible.  The TCAB decision was reasonable.  There was no error in law or procedure either.

Conclusion

16.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 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