AYUB NAVEED v. TORTURE CLAIMS APPEAL BOARD

HCAL 540/2017

[2018] HKCFI 1317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 540 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 43-year-old national of Pakistan who entered Hong Kong illegally in early December 2013 and was arrested by the police on 3 December 2013.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim with the Department on 7 December 2013 on the basis that if he returned to Pakistan he would be harmed or killed by his cousin over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Tchsil, District Jhelum, Pakistan where his mother and two siblings still live.  After leaving school he worked as a tailor until about 2005 when he inherited a piece of farmland from his father’s estate after his father’s death on which he started farming for his living.

3.  In about 2000 his cousin whose name he claims he is not certain but was a teacher started to build a wall and a house on his own land adjacent to the applicant’s but which had encroached onto the applicant’s land.  The applicant therefore complained to the local land registry and demanded compensation from his cousin, and when his cousin refused, they broke into a fight during which the applicant was punched on the face and beaten with a wooden stick which caused injuries to his face with two teeth knocked out.

4.  After the fight the applicant made a complaint to the police but they refused to assist unless the applicant paid them a bribe which he refused.  Instead the police would accompany his cousin to come to his house on two or three occasions during which his cousin threatened the applicant to hand over his land to him.  Afterwards the applicant became concerned that it would only be a matter of time when his cousin would cause further physical harm to him over their land dispute, he therefore decided to leave Pakistan for his own safety which he eventually did on 29 November 2013 when he left for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form on 7 December 2015 with legal representation from the Duty Lawyer Service.     

5.  By a Notice of Decision dated 12 February 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director did not accept that the applicant would face any real risk of harm from his cousin upon his return to Pakistan given his threats were only verbal and that he did not give the applicant any more trouble for some two years before he departed Pakistan, that his cousin had no political influence and in the absence of any evidence of any involvement of the state or police in his threats, state protection would be available to the applicant if resorted to upon his return to Pakistan.

7.  By a Notice of Further Decision dated 28 February 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which he filed his appeal on 24 February 2016, and attended two oral hearings on 8 March 2017 and 8 June 2017 before the Board during which he confirmed his claim as set out in the documents of his hearing bundle but declined to file any further evidence before the Board nor to answer any questions put to him by the adjudicator.  On 23 June 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant’s evidence inconsistent and unreliable, and in the absence of any reliable corroboration that it was unable to attach any weight to his claim that he had any land dispute with his cousin, and that in any event he had not been subjected to ill-treatment that reached the degree of severity to establish a non-refoulement claim, and concluded that on the available evidence it was not persuaded that the applicant had any land dispute with his cousin or that he had been threatened or assaulted by his cousin or by anyone in Pakistan, and hence the issue of internal relocation did not even arise.   

10.  On 22 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just exhibiting a copy of the Board’s decision with his following statement:

“ I am not satisfied with the decision of Director of Immigration. I request you for judicial review. My life not safe in my motherland. Please see details with attached documents Exhibit page (1) to (23) total 23 pages. Please consider my case.”

11.  As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the Director or adjudicator’s decision in dismissing the claims, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the decision-makers, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.  Here the applicant does not even say that the Director or the Board has erred in their decisions.  Nevertheless, having proceeded to consider their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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