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HCAL 35/2019
[2021] HKCFI 268
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 35 of 2019
BETWEEN
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Ahmed Ishtiaq |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background
1. The applicant was born on 10 June 1976 in Padrali village, Punjab, Pakistan. He was educated up to class 7. He was a shop keeper and a labourer. He had worked in Dubai for a few years from 2006—2012. He was married with 4 children. His family lived in Pakistan. His 4 siblings lived in Saudi Arabia.
2. In 2005, his father indicated that he would pass the family land [1] onto the applicant and his 4 brothers.
3. In 2006, his paternal uncle claimed ownership of part of the family land. He challenged that his father could not pass the land onto the applicant and his siblings. There was an argument at the applicant’s home and a fight ensued. Both parties reported to the police. There was a court case pending.
4. Later in 2006, his paternal uncle and 2 cousins took over the family land. They did not allow his family to farm on the land. They threatened to kill his family. His family did not take any action. His family had sought help from PTI [2] but they could not assist. They did not seek help from other government authorities. Nothing happened in the next few years.
5. From 2006-2012, the applicant worked in Dubai. He returned home in 2012.
1st incident
6. In 2014, there was a discussion about the ownership of the family land between his family[3] and his paternal uncle’s family[4]. A fight ensued. He was assaulted with wooden sticks. There was a gunshot aiming at him but missed. His front tooth was knocked off. His brother sustained minor injuries. He was treated in a hospital. It took him about 4 months to recover. He reported to the police at the Dina Police station. The paternal uncle and cousins were arrested but released on bail. The police told his father that they were working on the case.
7. Since this incident, he left his home village but returned occasionally.
2nd incident
8. About August 2015, he met the 2 cousins outside his home. They shot him with guns. He managed to escape without injury. He informed his father on the phone. He thought his cousins mistook that he was going to the family land. He did not report to the police as PMLN [5] was in power. The police were under their influence.
9. He stayed at Ralwalpindi [6] for about 5 months. He was not located. His father told him it was unsafe at the home village. His paternal uncle threatened to kill his family. His friend arranged him to go to Hong Kong via China. He paid an equivalent amount of HK$30,000. He left Pakistan safely. His brothers also fled the country.
10. He kept in contact with his father and wife while in Hong Kong. His family had since moved to Jhelum. They were safe there. His paternal uncle still threatened his father on the phone.
11. He did not think the police would protect him so long as PMLN was in power. The PMLN supported his uncle in this dispute. His paternal uncle would use their network to locate him. He did not think there was any useful channels of complaint. [7]
12. On 27/12/2015, he sneaked into Hong Kong from China. He was arrested by the police on the same day. He filed the non-refoulement claim on 30/12/2015.
13. If he returned to India, he believed his paternal uncle and his cousins would harm or kill him.
The Decision of the Director
14. The Director pointed out the following to conclude that the future risk of harm was low [8]:
(a) In both incidents of attack, the applicant was not seriously injured. He even escaped gun shots. The injuries did not amount to a minimum level of severity.
(b) There appeared no real intention to kill him given what had happened during the 2 incidents. It was more likely that the attackers were putting pressure on him not to claim the family land.
(c) The applicant was safe in Ralwalpindi. His family was also safe in the home village before they moved to Jhelum. After that, his paternal uncle could not locate him or his family. This showed that his paternal uncle had limited resources to locate his family.
(d) The land dispute was a private matter. There was no evidence that the PMLN would support the paternal uncle’s family and use their resources to assist them. There was no evidence that any government official was involved in this matter. There was no evidence that the army would be involved even though his cousin was an army officer.
(e) The applicant could leave Pakistan safely. He was not targeted by the State.
(f) The Director found that the Pakistan government could provide reasonable protection and assistance to citizens despite there were also reports of widespread backlog of cases in land dispute and police incompetence. There was a revenue court system dealing with land disputes. The Pakistan government would not tolerate corruption and abuse of power. The court system was intact to tackle abuses by security forces. There were positive reforms which improve police effectiveness. A person could complain to the Ombudsman against misconduct of police or officials. Where a police refuse to register a report, the person could complain to higher rank officers.
(g) The Director found that there was reasonable opportunity for internal relocation. Pakistan law permitted internal movement. Pakistan was a large country with a large population. There were reasonable options such as Lahore and Karachi for relocation. There was no evidence that the government had targeted the applicant. It would not be unduly harsh for him to relocate given his age and education.
15. For the claim under BOR 3, his injuries did not amount to ‘minimum level of severity’ both physically and mentally. The circumstances of the applicant did not support a genuine and personal risk of ill-treatment if he returned to Pakistan. This claim failed.
16. For BOR 2, given the evidence of this case, there was little evidence to support a real risk of arbitrary deprivation of life.
17. For persecution risk, the ill-treatment of the applicant was inflicted because of a land dispute. It was private in nature. There was no evidence that the attack was politically motivated. It was not within the ambit of ‘persecution’ according to the Refugee Convention. This claim failed.
18. For torture risk, the applicant’s injuries did not amount to severe pain or suffering within the definition of ‘torture’ under s.37U (1) of the Immigration Ordinance. There was reasonable State protection. No evidence that the assault arose from official involvement, acquiescence or instigation. The applicant was never targeted by the Indian government. He could leave Pakistan without any problem.
19. The Director rejected all the above claims on 22/11/2017.
The Decision of TCAB [9]
20. The TCAB rejected the appeal on 24/12/2018. The adjudicator had set out the governing legal principles. He pointed out the following reasons for refusal of his claim:
(a) The applicant did not seek protection in China. He did not take initial steps to seek protection in Hong Kong but only do so after his arrest. The adjudicator rejected the explanation that it was due to language problem. This failure was detrimental to his credibility. [10]
(b) During the hearing, the applicant confirmed that the land dispute was a personal dispute which was not politically motivated.
(c) The applicant stated in the NCF that there were 3 incidents of attack in 2006, 2014 and 2015. During the 2006 incident, he was in Dubai. However, in the hearing, he changed his evidence that he was in Pakistan during the 2006 incident. He later changed his evidence again that there were two attacks in 2006, one in 2014 and none in 2015. The adjudicator doubted the nature and number of the incidents.
(d) Initially in the hearing, the applicant gave evidence that his family tried to report to the army but they did not help. Later he changed his story that he only sought help from the police.
(e) It was his father and wife who told him that his uncle continued the threat to kill him. This was hearsay. The adjudicator doubted its reliability. The applicant was away from the home village for more than 3 years. There was no reason the paternal uncle would still want to kill him given the lapse of time.
(f) The paternal uncle’s family had occupied the land for several years. The paternal uncle would expect that the applicant would return to the home village for pursuing the land dispute. There was no need for the paternal uncle to try to locate the applicant elsewhere in Pakistan.
(g) The applicant had not sought State protection at all.
21. The applicant’s encounter did not arise from any of the categories of persecution under the Convention. There was no State involvement or acquiescence. There were other channels of complaint such as National Accountability Bureau and Ombudsman. There was no evidence that they would not help the applicant. His allegation that these channels would not facilitate PTI supporters was wholly speculative. Persecution risk failed.[11]
22. The injuries sustained by the applicant was minor. He had fully recovered. It did not amount to a minimum level of severity. Taking into consideration of all evidence, there was no genuine and substantial risk of ill-treatment if returned to Pakistan. BOR 3 claim failed.[12]
23. The adjudicator found no evidence that there was a real risk of arbitrary deprivation of life. He rejected the BOR 2 claim.[13]
24. The applicant did not suffer pain or suffering for the purposes as defined under s.37U of the Immigration Ordinance. There was no evidence of State or public official involvement, acquiescence or instigation. It was not a case that the State had failed to discharge its duties or tolerate unlawful acts by an individual as a systemic practice. This ground failed.[14]
25. Since there was no real risk of persecution, the adjudicator did not think it was necessary to consider internal relocation. Nevertheless, the adjudicator had considered relevant COI. He pointed out that Pakistan law allowed internal movement. Given the size and diversity of Pakistan, it would be difficult for the applicant to be located. He concluded that Rawalpindi was a reasonable alternative as the applicant was safe there for about 8 months. Other cities like Lahore or Islamabad were also appropriate. [15]
Judicial Review
26. The applicant applied for leave to apply for judicial review on 4/1/2019. In his supporting affirmation, he pointed out that the TCAB decision was unreasonable. The applicant repeated briefly the basic grounds of his claim. He stressed that his life was in danger. He had not pointed out any specific error in the decisions of the TCAB and the Director.
27. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. In general, this court would not interfere with the findings of facts.
28. This court fixed a hearing on 8/12/2020 on the request of the applicant. He did not turn up. This court proceed to consider his leave application on paper.
29. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
30. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 9th day of February 2021.
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 9 February 2021
Ahmed Ishtiaq
Applicant’s ref. no:
Nil. |
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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 9 February 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9317/17/11/328/P1829
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2631/17
(formerly RBCZ 10275/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] It was worth HK$ 4 million.
[2] Pakistan Telueek-e-Insaaf.
[3] Including his father, 2 brothers and the applicant.
[4] Including his paternal uncle, 2 cousins and some villagers.
[5] Pakistani Muslim League (N), the ruling party which his paternal uncle supported.
[6] A city about 100km from the home village.
[7] The Inspector General of Police Complaint Helpline, E-complaint form and Ombudsman.
[8] Paragraphs 11-19, the decision of the Director.
[9] Decision of the TCAB, §§9, 39—42.
[10] S. 37ZD (1)(b) Immigration Ordinance.
[11] Decision of the TCAB, §§43—59.
[12] Decision of the TCAB, §§62—67.
[13] Decision of the TCAB, §§60—61.
[14] Decision of the TCAB, §§68—75.
[15] Decision of the TCAB, §§76—81.
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