MUHAMMAD TANVEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2913/2018

[2022] HKCFI 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2913 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant first entered Hong Kong on 18/9/1997. He was arrested by the police for overstaying on 22/8/2000. He was repatriated to Pakistan on 5/10/2000.

2.  On 12/10/2013, he sneaked into Hong Kong[1]. He was arrested by the police on 25/10/2013. He raised the non-refoulement claim in this case on 26/11/2013.

Background

3.  The applicant was born on 10/7/1971 in Lahore, Punjab, Pakistan. He was widowed with 2 sons. His family was in Pakistan. He had education for 11 years. He had working experience for 17 years.

4.  He inherited a piece of land from his father in 2011. His father inherited the land from his grandfather. There were documentary records of his land title. His uncle claimed to be the owner of the land.

5.  In March 2011, his uncle went to his house. They argued about the ownership of the land. His uncle threatened that there would be serious consequences if his family remained on the land. He reported to the police who refused to intervene as it was a private dispute. His uncle was a wealthy property dealer and associated with PMLN.[2]

6.  Since then, the 2 sons of his uncle (cousins) came to his house from time to time. They had connections with local gangsters. The cousins threatened his family and forced his family to leave. He refused.

7.  About December 2011, 5 policemen came to his house. They arrested him for using forged documents in relation to the land. The complaint was from his uncle. He was detained in the police station overnight and assaulted. No charge was laid against him afterwards.

8.  In November 2012, his cousin (“Amir”) and 4 strangers came to his house in the evening. They were armed. His cousin argued with him on the ownership of the land. In the heat of the argument, they assaulted him and shot his wife. His sons were inside the house and unharmed. His wife died on the way to the hospital. He was given some painkillers.

9.  He reported to the police but they did not believe in him. Nevertheless, they issued a first information report (“FIR”) to him but there was no investigation.

10.  A few days later, Amir came and threatened to kill him if he did not leave the land. He thought the police would not take action against Amir. His uncle had influenced the police.

11.  After discussing with his sister, he arranged to leave Pakistan through an agent. He flew to Guangzhou on 10/10/2013. He then took a bus to Shenzhen. He met a man on the street who arranged him to sneak into Hong Kong by boat on 12/10/2013.

12.  He did not think the police would assist as they were in favour of his uncle. It would also be difficult for him to relocate to other cities as the PMLN and the gangsters had extensive networks. He learned from his sister that his uncle was still looking for him.

The Decision of the Director

13.  The Director dismissed his claim on 17/10/2017 as the risk of harm was low. The reasons were as follows:

i.     The applicant was only assaulted during the incident in 2012. His injuries were not serious. It did not amount to a minimum level of severity.

ii.    Amir and others chose to kill his wife during a struggle but not the applicant. There were subsequent threats by Amir. Despite all these, the applicant chose to remain in the house. He made no effort to report to other authorities. It was not consistent with the asserted imminent danger to his life.

iii.   There was no evidence that the PMLN party would assist his uncle to trace him. It was a private land dispute. The applicant could leave Pakistan without any problem. He was not targeted by any authorities.

iv.   The applicant was safe at home from March 2011 to October 2013 despite Amir came from time to time to threaten him. He and his sons were not injured at all. There was no intention to kill him.

v.    The applicant did not take his complaint further. He was given a FIR in the case of his wife. He asserted that there was no further investigation but he did not follow up. There was no evidence that the police had ignored his complaint.

vi.   He could leave Pakistan with his passport. He was not targeted by the government.

vii.  The Director accepted that in Pakistan, there was corruption and abuse of power in the police. The police were inefficient and in low morale. On the other hand, the Director noted that the Pakistani government had taken steps to improve police efficiency and training in human rights. Complaint channels had been improved. One could complain through email, fax and SMS. The National Accountability Bureau was established to tackle corruption. There were news reports that officers were punished for corruption. The Director was satisfied that there was reasonable State protection.

viii. Internal relocation was permissible in Pakistan. The population was about 199 million. It was a large country. It would be difficult for his uncle and cousins to locate him. Given his age and experience, Karachi and Islamabad would be viable options for relocation.

The Decision of the Board

14.  There was an oral hearing held on 28/9/2018. The TCAB found that the evidence regarding the land dispute and the death of his wife were not supported by any documentary evidence. The adjudicator found that these factual bases were not genuine. The adjudicator dismissed the appeal on 14/11/2018 on all grounds.  The reasons were:

i.     The applicant’s evidence about the circumstances in which his wife was shot was inconsistent. In his NCF, his wife was shot while struggling with the assailants. She died on the way to hospital. However, he told the adjudicator that his wife came to the doorway on hearing gunshots and was shot dead. She died in the hospital after treatment for 3-4 hours. The adjudicator pointed out that the applicant could not have mistaken this event.

ii.    He could not give a coherent explanation why his uncle suddenly demanded the land 30 years after his grandfather died. His family and his uncle’s family were living peacefully on the land all along.

iii.   The applicant told the adjudicator that he was just a labourer in the past whereas he said in his NCF that he was a property salesman. It was unconvincing that he did not know how to resolve a property dispute.

iv.   The applicant promised to produce the FIR and death certificate of his wife to the adjudicator within 21 days. He claimed that those documents were with her sister. However, he failed to do so without any explanation.

Judicial Review

15.  The applicant filed the leave application on 19/12/2018. In the Form 86, he mainly complained against the decision of the Director. He pointed out that the TCAB did not give him sufficient time to arrange for the relevant documents.

16.  The applicant attended a hearing held on 13/12/2021 before this court. The applicant confirmed his address as this court pointed out to him that the notice of hearing was returned. He had no update nor any complaint.

17.  Once there was a decision by the TCAB, it would supersede the decision of the Director. The TCAB decision was the final decision on the claim at the end of its processing. The decision of the Director is not a decision susceptible to judicial review once an appeal to the board is pursued by a claimant.[3] This court would not deal with the complaint against the Director.

18.  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.

19.  The applicant’s inconsistency was serious. His evidence was mere assertions without any documentary support. He actually asked for 14 days during the TCAB hearing but the adjudicator gave him 21 days to submit the FIR and death certificate of his wife. He asserted that the documents were kept by his sister. He indicated that he could produce them in time. The TCAB hearing was in September 2018. He could not produce any document up till the decision in 14/11/2018.

20.  The adjudicator disbelieved in the evidence of the applicant. He found that the land dispute and the death of his wife were not true. On that basis, the adjudicator needed not consider the COI in Pakistan. The applicant failed to establish his claim.

21.  This court agrees with the adjudicator that the applicant is not truthful. There is no real risk of harm if he returned to Pakistan. There is no error of law or procedure, the TCAB decision is rational.

Conclusion

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

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