IJAZ MUHAMMAD v. GRACE MA, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 659/2018

[2019] HKCFI 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 659 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:

1.  The applicant is a 39-year-old national of Pakistan who entered Hong Kong illegally on 9 March 2016 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle and his sons over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Khoday, District Chakwal, Punjab, Pakistan.  After leaving school he assisted in his father’s farming in his farmland in the same village passed on from his grandfather, got married and formed his own family.

3.  After his father passed away in 2001, the applicant inherited his farmland, but as his paternal uncle also coveted the farmland, issues were raised by him over the applicant’s right to inherit it, and one day his uncle together with his sons came to the applicant’s home to demand that the farmland be given to him instead, and when the applicant refused, his uncle and sons started to assault him and his mother with wooden sticks that both had to be taken to the hospital for medical treatments.

4.  After the incident the applicant made a report to the local police, but as his uncle was a wealthy and influential man in the village with political connections, the police refused to take any action against his uncle and just treated the matter as a private family dispute.

5.  On another occasion in 2003 while the applicant and his elder brother were working on the farmland, his uncle came with his sons again to demand that the farmland be given to him, and when the applicant refused, he shot at him with a pistol which missed him but hit his elder brother instead who was as a result hospitalized for a month, and when the applicant reported the shooting to the police, they again refused to take any action against his uncle as there was no other witness to the shooting.

6.  One day in 2007 when the applicant was working on the farmland, his uncle and sons again came to demand that he stopped working on the land as it should belong to his uncle, and when they took out their pistols and started shooting towards the sky, the applicant feared for his life and fled home.

7.  After that incident the applicant went to work in the United Arab Emirates before returning to Pakistan in 2011 when he proposed to his uncle to resolve their dispute by sharing the farmland with him, but when his uncle insisted that the entire farmland should be given to him, a quarrel ensued and his uncle and sons proceeded to hit the applicant and his brothers with wooden sticks that they were subsequently taken to hospital for treatments.

8.  One day in December 2015 his uncle with his sons again came to the applicant’s home with his demand for the farmland and that the applicant and his family should vacate the place right away, and when the applicant refused they proceeded to hit him with wooden sticks and threatened to shoot him and his family with their pistols if they still refused to leave.

9.  After the last assault the applicant moved with his family in January 2016 to Mole Nidral to take shelter with other relatives, but when he heard that his uncle was still looking for him everywhere, he decided that it was no longer safe to remain in Pakistan, and so on 28 February 2016 he departed for China, and from there he later sneaked in Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 12 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 the Hong Kong Bill of Rights (“HKBOR”) (“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”).

11.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle and sons to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute over land without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 193 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Pakistan away from his home district in large cities such as Karachi where it would be difficult if not impossible for his uncle to locate him.

12.  By a Notice of Further Decision dated 13 July 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”).

13.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 22 August 2016, and for which he attended an oral hearing on 28 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 28 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found serious contradictions and inconsistencies in the applicant’s account of his alleged dispute with his uncle over his farmland, that it was unacceptable that he failed to produce any documentary evidence of his alleged interest in any farmland or to give any credible explanation as to why he had not asked his mother to send him a copy of the land title from Pakistan during all his years in Hong Kong, that upon hearing him in evidence that the applicant was not a credible witness that his claim of a well-founded fear of harm from his uncle arising from any land dispute was rejected, and concluded that he was not entitled to non-refoulement protection in Hong Kong under any of the applicable grounds.

15.  On 17 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  misdirection in the law in that the adjudicator misdirected herself by taking into account the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(5)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

16.  These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator misdirect herself in law or fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of which I do not find any basis or merits in any of them, or that they are reasonably arguable for his intended challenge.

17.  The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

18.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

19.  Essentially the applicant’s claim was rejected by the Board based on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 55 of its decision with the benefit of hearing him in evidence and answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the decision being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

20.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  In the premises and having considered the decisions of both the Director and the Board 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.

22.  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