SIDDIQUE AAMIR v. CORRINA TAI, THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 37/2018

[2019] HKCFI 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 37 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 45-year-old national of Pakistan who entered Hong Kong illegally on 8 January 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 neighbor 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 Wallia, Attock, Pakistan.  After leaving school he worked in farming growing crops on his family farmland owned by his father in his home village, whilst his neighbor GR was a wealthy landowner with adjacent farmland where he raised cows and cattle.

3.  One day in late 2014 GR with his sons and nephews came onto the applicant’s family farmland and indicated to the applicant’s father that as he wanted to expand his cattle business he therefore wanted to purchase the farmland from the applicant’s father, but when his father refused to sell his farmland, GR became furious and threatened that he would get the land by any means, and soon a fight broke out when GR and his men attacked the applicant and his father who however managed to escape with only minor injuries.

4.  After the incident the applicant’s father did not report the matter to the police as GR was powerful and influential in the village with political connection to the political party Pakistan Muslim League (N) (“PML(N)”), but as he and the applicant were concerned for their safety and in order to avoid further threats from GR and his men, the applicant and his father stopped growing crops on their farmland and instead went to work for other farmers in the village, returning only occasionally to check on their farmland.

5.  One day in mid-2015 when the applicant and his father returned to check on their farmland, GR again approached them with his demand to purchase their farmland, and when the applicant’s father refused, GR and his men proceeded to punch and kick them viciously before they eventually managed to escape with cuts and bruises.  Again they did not report the assault to the police but continued to keep a low profile and to try to stay away from GR and his men.

6.  One day in late December 2015 when the applicant and his father ran into GR and his men, they were again assaulted by them after turning down GR’s demand for their farmland.  After that assault his father decided that it was no longer safe for the applicant to remain in Pakistan, and therefore made arrangements for him to leave for China, which the applicant did on 7 January 2016, and from there he sneaked into Hong Kong on 9 January 2016 and later lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 1 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 24 May 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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from GR and his men upon the applicant’s return to Pakistan as low as GR was only after his father’s farmland in which the applicant had no legal interest, that his problem with GR was a private land dispute with no 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 196 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 areas away from his home district in large cities such as Karachi where it would be difficult if not impossible for GR and his men to locate him.

9.  By a Notice of Further Decision dated 3 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”).

10.  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 he filed on 3 June 2016, and for which he attended an oral hearing on 24 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found discrepancies and inconsistencies in the applicant’s account of the assaults by GR and his men and questioned his decisions of never reporting any of them to the police, that state and police protection would be available to the applicant if resorted to, and that it would be viable for him to relocate to other areas in Pakistan in large cities such as Karachi or Lahore where it would be difficult if not impossible for GR and his men to locate him.  

12.  On 8 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the consideration which led to the unfair outcome of rejecting his claim;

(2)  that the Director failed to take into account the argument that he was tortured at the behest of and in collusion of the police and the state law enforcement agencies as well as those high up in the political circles that the state should be rendered liable to the applicant by the failure of the state and public officials to provide reasonable protection to its citizens;

(3)  that the Director failed to rely on relevant COI to take into account of the inability of the Pakistani police to protect its citizens or was being biased against the applicant in failing to give sufficient weight to such COI;

(4)  that the Director failed to take into account that the corruption and incompetency of the administration in Pakistan is still a serious problem in the consideration of his claim;

(5)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision; and

(6)  that the adjudicator failed to make sufficient enquiry of the applicant’s claim before finalizing the determination or to give sufficient opportunity to the applicant to arrange relevant evidence to support his claim as well as his appeal.  

13.  These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision, or in what way did the Director fail to take into account of relevant COI or improperly rely on irrelevant COI, or how did the Director fail to attain high standard of fairness in his decision, or what relevancy was the presence of state acquiescence to his claim when there was never any evidence of any official involvement in GR’s threats or assaults or that he was ever tortured by the police.  Some of these assertions were clearly factually incorrect, while none were elaborated or presented with any particulars or specifics by the applicant.

14.  As for his complaint of not being given sufficient opportunity by the adjudicator to provide relevant evidence in support of his claim or for his appeal, of which he never raised any issue during his oral hearing before the Board nor did he make any request to the adjudicator for further time for him to do so.  Even now in his application before me he did not make any further representation or produce any further evidence in support of his claim.  In the premises I do not find any merit in this complaint of the applicant either. 

15.  The fact is that it has been established by both the Director and the Board in their decisions that state and police protection would be available to the applicant in what was essentially a private property dispute with no official involvement at all, and that risk of harm in his 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.

16.  In the premises and having proceeded to consider 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.

17.  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