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

HCAL 2004/2018

[2021] HKCFI 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2004 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 refused.

Observations for the Applicant:

Introduction

1.  The Applicant seeks leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 8 March 2018.   In fact, there was only one decision of the Board in respect of the Application and it was dated 5 September 2018.  The date quoted by the Applicant was the date of the Notice of Decision (the “Notice”) issued by the Director of Immigration in refusing his application for non-refoulement protection.  The decision of the Director in the Notice is now subject to judicial review because there is in place procedures for appeal against such a decision to the Board.   The Applicant has invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if he is entitled to, would adequately protect his interest.  The Court therefore treated his application as an application for leave to apply for judicial review of the Decision of the Board dated 5 September 2018.

2.  The Applicant is a Pakistani national in the Punjab.  He flew from Pakistan to Guangzhou.  On 23 July 2014, he entered Hong Kong and raised a non-refoulement claim on 25 July 2014 based on his fear of being harmed or killed by his uncles and their families arising out of a land dispute.

3.  The Applicant was assessed on all four applicable grounds available under the USM, namely:

(1)  risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”);

(3)  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(4)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”)

4.  By a Notice of Decision dated 8 March 2018, the Director rejected his application for non-refoulement protection.  The Applicant appealed to the Board on 19 March 2018.  His appeal was dismissed by the Board on 5 September 2018.

5.  On 21 September 2018, he applied for leave to apply for judicial review of the Decision of the Board. In his affirmation filed in support of the application on the same date, he said he requested for judicial review of the Decision of the Board and attached a bundle of documents which are documents in the appeal bundle before the Board and six pages of submissions including photographs.

The Applicant’s case

6.  The Applicant was born in 1980 in Rawalpindi in Pakistan.  He is the youngest son in the family with two elder brothers and three elder sisters.  He was widowed and had three sons born by his late wife in 2010, 2012 and 2014.

7.  The Applicant’s father and his two uncles, Kajeer and Mian, jointly own a piece of farmland in Injra Afghanan.  His father passed away in December 2012.  Prior to his death, his father used to help in the farming of the land.  After his death, no one from the Applicant’s family took part in the farming.

8.  As the Applicant was living in Injra Afghanan, while his brothers were staying outside Injra Afghanan due to their work, he assumed the responsibility of acquiring his father’s share of the land from his uncles.  In May 2013, he approached his uncles requesting for his father’s share of the land to be inherited by him and his two brothers.  His uncles agreed to do so after the harvest.

9.  The Applicant approached his uncles again after the harvest in August 2013.  But his uncles refused to give him his father’s share of the land and had an argument with him.  Following the argument, Mian and his family blocked the access path to the Applicant’s house by fence.  That triggered another round of serious quarrels between him and the Mian’s family leading to the children of his two uncles throwing stones at the Applicant’s house.  As a result, the Applicant and his family moved to Mohalla Feroz Pura, which was about 170 kilometres away from Injra Afghanan.

10.  In early 2014, the Applicant found 5,000 chickens in his poultry farm were poisoned.  Later, two of his cousins told him that they had poisoned his chickens and threatened to kill him if he insisted on having his father’s share of the land.  The Applicant believed he was being targeted because he was the only person in his family who could afford to hire lawyers to pursue the land dispute in court. He believed his uncles wanted him to sign off the land to them formally.

11.  The Applicant did not report the poisoning and the threat to the police because he believed he had to bribe the police in order to get his report registered and in spite of that it may still yield no result in his favour.  Since his cousins poisoned his chickens, he was afraid that they would also seriously harm or kill him. Because of that fear, he wanted to flee to Hong Kong.  He took a bus to Xinjiang in May 2014 and enquired how to go to Hong Kong.  Having failed to find a way to Hong Kong, he returned to Pakistan on 12 May 2014.

12.  On 9 July 2014, he fled to Guangzhou.  Then he took a bus to Shenzhen.  On 23 July 2014, he entered Hong Kong on foot.  On 25 July 2014, he raised a non-refoulement claim.  He did not consider internal relocation a viable option because he believed his uncles would locate him across the country and he did not think state protection was available because the police were corrupt and he could not afford to bribe them. 

13.  Adnan, the son of the Applicant’s elder brother, Saleem, took over his poultry farm business since he left Pakistan.  In May 2015, Saleem informed him that his uncles’ sons had made a false report to the village council and the police against Adnan, for drug trafficking.  As Adnan was arrested by police officers from outside the local jurisdiction, the Applicant believed the officers were bribed to arrest Adnan and that the arrest was related to the land dispute with his uncles. Subsequently Adnan was acquitted of the charge on 5 January 2016.

14.  In the meantime, two months after Adnan’s arrest Saleem sought help from the village head on 24 July 2015.  On the same day, the two uncles signed an affidavit with the Applicant’s two brothers regarding the land.  However, his two uncles did not comply with the affidavit and the village head offered them no further assistance.

The finding of the Board

15.  The burden is on the Applicant to establish that there is a real risk of harm under the different applicable grounds were he to return to the risk state.  However, bearing in mind the low standard of proof required of the claimant, the Board took no issue on the credibility of the Applicant and accepted his evidence.  However, as a matter of law, the Board held that he does not qualify for protection under the four applicable grounds.

16.  In respect of the Torture Risk ground, the Board found the Applicant is unable to show any form of state instigation or acquiescence whether active or passive.  The element of official capacity which is a basic requirement under this ground cannot be established.

17.  In respect of the BOR 3 Risk ground, the Board could find no evidence to show that the police have been bribed or influenced by the two uncles.  The Board was of the view that the Applicant should have reported the case and if he was not satisfied with the way the case was handled by the local police, he could bring his case to the higher-level police or government authorities which included National Accountability Bureau and Ombudsman, for investigation.  Having considered the Country of Origin Information (“COI”), the Board was satisfied that effective state protection was available for the Applicant.  Adnan’s acquittal supports the Board’s finding that state protection is available.

18.  In respect of the Persecution Risk ground, the Board found that even if there was persecution, the claimant must prove that the agent of persecution is either the state authorities or a sizeable portion of the population.  The Board was not satisfied that the two uncles and their families represented the state authorities or constitute a sizeable portion of the population of Pakistan.  They are just aggressors in a personal or domestic dispute.

19.  In respect of the BOR 2 Risk ground, the Board found that the two uncles and their families only meant to deter the Applicant from pursuing the land interest through the three incidents.  Even if the Applicant is dead, they will have to look for, and get, the Applicant’s two brothers to sign off the land.  The Board found it unlikely for the two uncles to take the risk of criminal sanction to kill the Applicant.  In any event, state protection and internal relocation is available.

Grounds of the Application

20.  In his grounds of appeal, he said that he was not satisfied with the immigration officer’s decision.  The Court assumed that was also directed at the Decision of the Board.  The Applicant produced photographs and newspaper cuttings not previously produced to the Board.  His fears and risks are his uncles and their families threat to harm or kill him and his family.  He relied on the prosecution of Adnan and the brutal murder of a family of four in another family land dispute case as evidence to boost and support his fears and risks.

Disposition

21.  The role of The Court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The Court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

22.  The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions and in particular, the COI.  The Board basically accepted his factual case.  The Court found that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  The Applicant could not have any complaint about the Board’s acceptance of his factual case.  It was on the basis of his evidence that the Board held, as a matter of law, he did not qualify for protection under the four applicable grounds.  An applicant is not entitled to the protection from the international communities for any fears or risks arising from his home country.  He has to prove not only that his fears and risks are genuine, but also they fall within certain criteria set out under the four applicable grounds.   The Board found that his fears and risks did not qualify and it gave reasons why they did not. These are finding of mixed questions of law and facts.  Insofar as they are finding of facts, the Applicant cannot complain that the Board erred as it accepted his evidence.  Insofar as they are finding of law, The Court found the Decision of the Board was utterly without fault.  The Board went further and found on the basis of the COI that in any event state protection and internal relocation are available in the Applicant’s home country to deal with or to avoid the risks and fears.  These COI are from credible and official sources.  They are reliable.  The Board could not have erred on this finding as well.  In conclusion, The Court found there were no errors of law or irrationality in its Decision or procedural unfairness. 

23.  The Court therefore found no substance in the grounds of this application.  Accordingly, the application for leave to apply for judicial review is refused.

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