AHMAD SHAHZAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2989/2018

[2021] HKCFI 2946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2989 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant entered Hong Kong illegally on 18/8/2015.  He surrendered to the Immigration Department on 19/8/2015.  He filed the non-refoulement claim in this case on 20/4/2016.

Background

2.  The applicant was born on 1/1/1989.  He was raised in Lahore, Punjab, Pakistan [1]. He had education for 12 years.  He was single.  He was last employed as a security guard in Macau from 2009—2014.  His family and siblings were in Pakistan.  His family supported the PPP [2]. His cousin Waqar (“W”) was an active member of the PPP.  The majority of his neigbhours were supporters of PML(N) [3] which was the ruling party then.

3.  In August 2014, he bought a plot of land [4] from Ghulam (“G”) at the price of 6 million PKR.[5]  The sales agreement was made on a stamp paper attested by a Notary Public.  “W” was the witness.  He planned to build a house on the land.

4.  One day in October 2014, he was at the land with “W” to inspect the progress of construction.  Rashid Butt (“RB”) [6] and his men arrived.  They were armed with rifles.  “RB” queried his right to build on the land.  “W” had an argument with them.  They assaulted “W” and him.  Eventually, he and “W” escaped.  He immediately reported the incident to the police.  They later had treatment in a hospital.  He sustained some injuries at his head and back.  “W” had wounds all over his body.  He received 2 stitches.  “W” was hospitalized for 1 day.

5.  About 10 days later, “RB” and his men approached him at the market.  They threatened to kill him if he went to the land again.  He was scared. He and “W” contacted “G” who promised to do something.  However, there was no follow up.

6.  He also asked the leader of PPP to help him.  In March 2015, the PPP leader sent his representative to negotiate with “RB”.  An argument ensued. However, “RB” indicated he would sort it out.

7.  Later in April 2015, two men shot at them while he was on his bike with “W”.  He believed that they were sent by “RB”.  He was wounded at his shoulder.  They fell from the bike.  The 2 men approached and assaulted them.  The police attended the scene.  He was sent to a hospital.  He received an urgent operation to remove the bullet and to treat the collar bone fracture.  He was hospitalized for 20 days.  The police took statements from him and “W”.

8.  After he was discharged in May 2015, his parents advised him to leave Pakistan.  He stayed in Karachi to avoid “RB” while the agent arranged his trip to China.  In the meantime, he heard from “W” that “G” was shot.  “RB” alleged that he and “W” were responsible.  He also heard that “RB” were looking for him at Karachi through the PML(N) network.  He left for Guangzhou smoothly on 3/8/2015.  He was refused entry to Macau.  He then went to Shenzhen and sneaked into Hong Kong by boat.

9.  Currently, he was informed by his family that it was not safe to return.  His parents were safe.  His brothers had moved to another town in Lahore to stay away from the PML(N).  He had lost contact with “W”.  He did not know the status of the land.

10.  There were fierce conflicts between PPP and PML(N).  The Police were corrupt.  The PML(N) were the ruling party and controlled the authorities.  He would be located by them anywhere in Pakistan.

The Decision of the Director

11.  The Director pointed out the following to conclude that the future risk of harm was low:[7]

(a)  In the incident which he was shot, “RB” and his men did not take the chance to kill him.  They just assaulted him.  During his hospitalization, there was no further attack or threat.  A week after discharge, he was able to travel to Karachi and stay there safely for 3 months before leaving for China.  The risk that he would be killed was low.

(b)  He was just a supporter of the PPP with no official capacity.  The land dispute between him and “RB” was not connected with the PML(N).  Despite the political grudges between “W” and “RB”, it was not accepted that the PML(N) people would employ their resources to target or kill him.

(c)  The land dispute was a private matter.  There was no evidence that the PML(N) or the Pakistan government were involved.  The gun shot attack on “G” was pure hearsay.  There was no information as to the current status of the land.  The applicant could leave Pakistan safely through official channel.  He was not targeted by the State.

(d)  The applicant had not followed up his complaint with the police.  His allegation against the police was of no basis.  There was no evidence that “RB” were acting in any official capacity.  There was no evidence that the State was unwilling or incapable of providing protection.

(e)  Some COI revealed that police efficiency varied by district.  There was corruption in the police.  Most of the citizen did not trust the police.  However, the Pakistan government had taken positive steps to tackle corruption and abuse of power in the police force.  There was training in technical skills and human rights at all levels.  A person might complain to the Superintendent or the District Police Officer if a case was not registered.  A person might file complaints to the Ombudsman against misconduct of police and public officials.  The Director was satisfied that there was satisfactory State protection.  

(f)  The Director found that there was reasonable opportunity for internal relocation.  The law in Pakistan permitted internal movement.  Pakistan was about 800,000 km² in area with a population of 201 million.  It would be difficult to locate him.  There were reasonable options such as Ralwalpindi and Karachi for relocation.  The applicant was not targeted by the government.  It was not accepted that “RB” had the resources to locate him.  It would not be unduly harsh for him to relocate given his age and working experience.

(g)  The documents submitted could not take his case any further.

12.  The Director rejected the claim on all grounds on 5/2/2018.

The Decision of TCAB

13.  The applicant attended a hearing on 17/9/2018.  The adjudicator found that the applicant was unable to give adequate details of his story.  There were inconsistencies which were not satisfactorily explained.  The applicant was not truthful.  The TCAB rejected the appeal on 21/12/2018.  The adjudicator pointed out the following reasons: [8]

(a)  The applicant admitted that the ruling party had since changed to Pakistan
Tehreek-e-Insaf Party.  The political influence of “RB” arising from his role in PML(N) became insignificant.

(b)  During the TCAB hearing, the applicant confirmed that he only concerned about the land not politics.  However, he did not know the status of the land. It appeared that he was not concerned about the ownership of the land and the construction project anymore.

(c)  The applicant stated “RB” would still kill him even if he gave up the land.  The reason being that “RB” was attacked and his men believed that the applicant was involved.  It transpired that the applicant mixed up the attack of “G” for “RB”.  In fact, he never mentioned in the NCF or to the Director that “RB” was attacked by anyone.  

(d)  The applicant failed to submit any medical report about the 1^st assault in October 2014.  He explained that his father was not educated and could not obtain it from the hospital.  He did not think of giving his father an authorization.  He however said he had showed the police his medical report immediately after the assault.  This was inconsistent.

(e)  As to the gun shot incident, he told the adjudicator he was unconscious and could not recall anything.  However, he said he was punched and kicked in his NCF.  He then explained that he was only semi-conscious.  The adjudicator found this unconvincing.  The adjudicator found that had “RB” the intention to kill the applicant, they could have done so in this incident.

(f)  The applicant told the adjudicator that his brothers were not involved in the dispute.  There was no need for them to move to Lahore.  Besides, if his brothers were safe in Lahore, the applicant would be safe there.

(g)  The applicant finally agreed that “RB” wanted to scare him off the land instead of killing him.  He even indicated that he just wanted some more time and would return to Pakistan when the problem was solved.

(h)  The adjudicator found that there were reasonable options for relocation. The influence of “RB” was localized.

Judicial Review

14.  The applicant applied for leave to apply for judicial review on 27/12/2018. In his supporting affirmation, he pointed out that his life was in danger in Pakistan.  His enemy could do anything.  They even killed a member of the Parliament.

15.  On 30/12/2019, the applicant filed an affirmation to withdraw the leave application.  He indicated that his life was no longer in danger.  For reasons unknown, this court had not dealt with the summons.  In the circumstances, this court would deal with his leave application as if there was no application for withdrawal.  There should not be any prejudice. 

16.  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.

17.  I agree with the adjudicator that the applicant was not credible in various important aspects.  He could not explain the inconsistencies satisfactorily.  In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

18.  The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review. 

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