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HCAL 2051/2018
[2021] HKCFI 3604
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2051 of 2018
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Mahmood Tariq |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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Director of Immigration |
Putative
Interested Party |
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant entered Hong Kong illegally from China on 18/11/2013. He was arrested by the police on the same day. He raised the non-refoulement claim in this case on 20/11/2013.
Background
2. The applicant was born on 10/12/1968 in Azad Kashmir, Pakistan[1]. He was married with 2 children. His family was in Pakistan. He had education for 8 years. He was a farmer from 1992 to 2013. He was also a driver from 2011 to 2013.
3. The applicant’s late father and 3 uncles inherited a piece of land from his grandfather. In 2011, they decided to divide the land among them. His father’s cousin Yousaf (“Y”) claimed to be the owner of the land. “Y” filed a case in court to stop the division of the land. His family also filed a counterclaim. The land was transferred to him before his father died. He however lost the authorization letter.
4. It transpired that “Y” had already sold the land to 12 persons (“the group”). He knew one of them was a weapon dealer—Ibrar. The others in the group were of bad reputation.
5. In mid-2011, the group destroyed the crops grown on the land. An argument ensued. The group left when the elders intervened. The group filed a court case against the applicant’s family alleging illegal possession of the land.
6. There were several occasions that he met “Y” and Ibrar. They exchanged foul language. In one occasion, “Y” slapped him. He was not injured. He reported to the police but there was no investigation. He thought the police had been bribed by “Y” and the group.
7. He was the target of harassment. He was told to sign some documents and leave the land. The villagers informed him that “Y” and the group threatened to harm or kill him. Since then, he met “Y”, Ibrar and the group a few times in the market. They did not attack him but just threatened to kill him.
8. He was in fear and decided to leave Pakistan. An agent arranged him to leave by air on 11/11/2013 to China en route Thailand. He later sneaked into Hong Kong by boat.
9. The land was still under his name. “Y” and Ibrar were still looking for him. If he returned to Pakistan, he would be killed by “Y” and the group. The police would not help him. “Y” and Ibrar would be able to locate him in Pakistan as they were wealthy and powerful.
The Decision of the Director
10. The Director dismissed his claims on 11/1/2018 as the risk of harm was low. The reasons were as follows:
i. While the applicant asserted that he was authorized by his father to take the land, he was unable to give more details about the land. He did not know the value. He was unable to produce any evidence of ownership.
ii. In his NCF, he mentioned an elder brother aged 54 in his family. When asked why the land was given to him instead of his elder brother, he told the Director that he was mistaken about the age of his elder brother. The Director did not accept this discrepancy.
iii. As “Y” was unable to give the land to the group. The group should sue “Y” for compensation. It was unreasonable that Ibrar and the group would join with “Y” to threaten him.
iv. The land was owned by his late father and 3 uncles. There was no reason why the applicant was the only one harassed. The applicant was unable to explain.
v. There was only one attack by “Y”. While they threatened him on several occasions, they did not take any action to harm him despite they could have done so. This indicated that “Y” only wanted to put pressure on him. There was no intention to harm or kill. The ill-treatment, physical and mental, did not amount to a minimum level of severity.
vi. After the incident that “Y” slapped him in 2011, the applicant remained in the locality for 2 years before leaving Pakistan. There was no further attempt to attack or kill him during this period.
vii. According to relevant COI, there was a revenue court which was responsible for adjudicating land disputes. The District and Sessions Court also dealt with possession of land.
viii. The Director had considered various COI. The Director accepted that in Pakistan, there was corruption and abuse of power in the police. The police were inefficient and of poor reputation. On the other hand, the Director noted that the Pakistani government had taken steps to improve police efficiency. An aggrieved party might complaint to the Superintendent of Police or the District Police Officer if a report was not registered. The party might seek redress in courts. The National Accountability Bureau was established to tackle corruption. There were improved channels for taking complaints. The office of the Ombudsman had been dealing with maladministration. There were reports that officers were punished for corruption.
ix. This was a private dispute on land. There was no official involved. The applicant had not taken his complaint to any higher authorities. There was no evidence that the police or the government were unwilling to assist him. The Director was satisfied that there was reasonable State protection.
x. Internal relocation was permissible in Pakistan. The population was about 205 million. It was a large country. It would be difficult for “Y” and others to locate him. Given his age and experience, Lahore would be a viable option for relocation.
The Decision of the Board
11. There was an oral hearings held on 27/4/2018. The TCAB found that the evidence regarding the land dispute was deficient, confusing and inconsistent. The adjudicator rejected the factual basis of his claim. There was no real risk of harm. The adjudicator dismissed the appeal on 20/9/2018 on all grounds. The reasons were:
i. The applicant told the adjudicator that his cousins were also involved in the dispute. This was never mentioned before. He only mentioned “Y” to the Director.
ii. The applicant claimed to the adjudicator that the land dispute had been going on for 10 to 12 years. Whereas in his NCF, he stated that the dispute started in 2011 which was about 7 years ago.
iii. The applicant told the adjudicator that he had never mentioned “Y” selling the land to the group of 12 persons. When his NCF was put to him, he insisted that he had never mentioned the group. The adjudicator found this perplexing.
iv. The applicant gave inconsistent version about the area of the land in dispute. His evidence was also confusing as to the ownership of the land.
v. The applicant failed to give reliable information on the progress of the court cases in relation to the land dispute between him and “Y”. The adjudicator found this unreasonable given that he claimed to be the owner of the land.
Judicial Review
12. The applicant filed the leave application on 27/9/2018. In his affirmation, he did not point out any specific error in the decision of the TCAB.
13. It is the duty of the adjudicator to establish the facts and the credibility of an applicant. In general, this court would not interfere. In a leave application, this court would decide whether there is any error of law and procedure. Whether the TCAB decision is rational.
14. The applicant’s inconsistency was serious. His evidence was confusing and deficient in important details. This court agrees with the adjudicator that he was not credible. The factual basis was not plausible. There was no real risk of harm if he returned to Pakistan. There is no error of law or procedure, the TCAB decision is rational.
Conclusion
15. This court refuses leave for the intended judicial review. It is not reasonably arguable. There is no reasonable prospect of success.
Dated 2nd day of December 2021.
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(Mike Mak)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 2 December 2021
Mahmood Tariq
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 December 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9988/18/1/261/P1930
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3052/17
(formerly RBCZ 893/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Sahang Kalyal, Mirpur.
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