SHER ZAMAN KHAN v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3002/2018

[2021] HKCFI 3204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3002 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 be refused.

Observations for the Applicant:

1.  The applicant entered Hong Kong illegally on 10/3/2008.  He was arrested by the police on 12/3/2008.   He filed a torture claim on 27/3/2008.  The Director rejected the torture claim on 21/1/2014.  Subsequently, he filed the non-refoulement claim in this case on 25/1/2014.[1]

Background

2.  The applicant was born on 6/11/1986 at village Sirka, Punjab, Pakistan.  He had no formal education.  He was single.  He was a farmer from 1998—2008. His 2 brothers were in Malaysia and Dubai.  His father was in Pakistan.  His mother died in 2011.  He had not joined any political groups. He had not been arrested or imprisoned.

3.  He and his 2 brothers inherited a piece of land [2] from his grandfather in 2002.  He was the executor of the will.  His uncle (“TK”) was angry about the arrangement.  TK demanded his family to hand over the land. From 2002—2007, TK came to his home and put pressure on the applicant’s family 2—3 times a month.

4.  TK was affiliated with corrupt politicians in the “PPP” [3]. TK was notorious for acquiring land by deception and false documents.   He did not know the detail in those plots.  He did not know the status of TK in PPP.

5.  In early 2007, TK came to his home with others.  TK held him under gun point.  TK forced him to sign a document to transfer the land title.  He refused.  TK threatened to kill him. Since then, he had to hide from TK.  His father told him to leave Pakistan.  His elder brother eventually went to Malaysia to avoid trouble.

6.  In mid-2007, he met TK and his gang on the street. They assaulted him with sticks.  He received treatment at a clinic.  He did not encounter TK again until he left Pakistan in March 2008.

7.  TK warned him not to report to the police, or else, TK would kill him and his parents. He thought TK could influence the police.  He saw TK socializing with the police.  He did not report as he could not afford a bribe. He however bribed the immigration officers when he left Pakistan.

8.  He left Pakistan for China via Bangkok in March 2008.  He stayed at Shenzhen for 2 days.  He then sneaked into Hong Kong.  He only learned about the protection scheme when he was detained in CIC.

9.  TK could locate him anywhere in Pakistan.  TK was influential and associated with the PPP. However, he had lived with a friend safely in Lahore for about 8 months in 2005.  He also went to Dubai in 2007.[4]

10.  After he left Pakistan, the family land was abandoned.  TK did not harass his family. He thought TK would force him to sign the transfer document if he returned to Pakistan.  He asserted that he was in control of the land, however, all 3 brothers had to sign before the title could be transferred.  He had no update information of his brothers’ situation in Malaysia and Dubai.

The Decision of the Director

11.  The Director pointed out the following to conclude that the future risk of harm was low: [5]

(a)     In the incident in early 2007, he refused to sign the transfer document despite he was held under gunpoint.  He was not assaulted.  There was no severe pain and suffering. It did not amount to a minimum level of severity.

(b)     During the incident in mid-2007, TK and others assaulted him with sticks.  He received treatment from a clinic.  He stayed in the home village afterwards.  The injuries were not severe.  It did not amount to a minimum level of severity.

(c)     Although TK threatened to kill him.  There was no action taken to harm him seriously.  TK had plenty of chances to do so when the applicant was in Pakistan.

(d)     TK warned him not to report to the police.  This showed that TK worried about   police involvement.  This was contradictory to his assertion that TK could influence the police.

(e)     He had stayed with his friend safely for 8 months in Lahore. He could travel to Dubai and stayed there for 3 months in early 2007.  This showed that TK could not locate him as asserted. In fact, since TK started putting pressure on his family in 2002, he stayed in Pakistan until he left in 2008.  The threat was never as imminent as he asserted.

(f)     The transfer document had to be signed by all 3 brothers.  His 2 brothers were in Malaysia and Dubai.  There was no use for TK to target him only.

(g)     He heard about the protection scheme in Hong Kong while in China.  He only sought protection until he was arrested 2 days after he arrived at Hong Kong.  He did not attempt to seek protection in Bangkok or China.  This was inconsistent with his assertion of imminent risk of harm.

(h)     He knew very little about TK’s position in the PPP.  There was no evidence that the PPP was involved.

(i)     There was no evidence that TK had harassed his family in India to put pressure on him. TK had taken no action to locate him elsewhere. The influence of TK was localized.

(j)     Some COI revealed that the police was inefficient, corrupt and unprofessional.   Land disputes were prevalent.  There was a large backlog of cases.  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. There was special court system to deal with land disputes. The Director was satisfied that there was satisfactory State protection.  

(k)     The Director found that there was reasonable opportunity for internal relocation.  The law in Pakistan permitted internal movement.  Pakistan was about 790,000 km² in area with a population of about 204 million.  It would be difficult to locate him.  There were reasonable options such as Islamabad and Karachi for relocation.  The applicant was not targeted by the government.  It would not be unduly harsh for him to relocate given his age and work experience.

12.  The Director rejected the claim on BOR 2, BOR 3 and persecution grounds on 21/5/2018.

The Decision of TCAB

13.  The applicant attended a hearing on 5/10/2018.  He confirmed that the information in the hearing bundle was true.  The TCAB rejected the appeal on 3/12/2018.  The adjudicator pointed out the following reasons: [6]

(a)     The evidence of the applicant only supported a case of land dispute between him and TK.

(b)     During the incident in early 2007, he refused to sign the transfer document despite he was held under gunpoint. At the end, TK left without harming him and his family. TK did nothing to carry out the death threat.

(c)     The encounter in mid-2007 was not premeditated, he met TK on the street by chance. TK and others only assaulted him. They did not have any intention to kill him. Although the applicant alleged corruption, there was no evidence that TK had bribed the police.

(d)     It was not to the interest of TK to kill the applicant as his signature was needed to effectuate the transfer of the land title.

(e)     The injuries sustained by the applicant did not amount to a minimum level of severity.

(f)     There was reasonable State protection in Pakistan.  There were reasonable relocation options.  The applicant could stay with his friend safely for 8 months in Lahore.

(g)     It was a private land dispute.  There was no persecution under the Convention.

Judicial Review

14.  The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he attached a 35-page-submission.  He also summarized the grounds which are dealt with as follows:

 (1)     No reasonable basis for rejecting my claim credibility.  The adjudicator’s reasons are summarised in paragraph 13(a)—(g) above.  In my view, there are sufficient bases to support the adjudicator’s findings.

 (2)     Failure to consider the extended form of state acquiescence. In paragraph 41 of the TCAB decision, the adjudicator had considered the COI.  He concluded that there were steps taken by the Pakistan government to provide State protection.  The applicant had not reported to other police station or higher authorities.  There was no evidence that TK had bribed the police.[7]  There was no evidence that the Pakistan authorities would not assist if the applicant took the case further.

 (3)     Failure to consider the COI reports. In paragraph 41 of the TCAB decision, the adjudicator had considered various COI.  Besides, he must have considered the analysis of the Director which set out the relevant parts of various COI in detail.[8]  In my view, the adjudicator had sufficiently considered the COI before arriving at his decision.

 (4)     Irregularity of the decision maker being a different person than the interviewing officer.  I have no ground to doubt that the adjudicator had interviewed the applicant on 5/10/2018. It is the applicant’s bare assertion without supporting evidence.

 (5)     Failure to place weight on relevant information and selectively placing weight on irrelevant information.  This complaint is a general allegation without particulars. This court could not deal with it meaningfully.  In any event, the adjudicator had analysed the evidence.  Having read the decisions of the TCAB, this court cannot find anything which raises concern.

 (6)     Failure to consider a consistent system of human right violations.  According to the COI, there was no evidence of a consistent system of human right violations in Pakistan.  There is no substance in this ground.

 (7)     Place weight on irrelevant matters or on inaccurate or incorrect facts.  I repeat the comment in (5) above.  This ground is too vague to be of any substance.

 (8)     Fail to call for psychological and/or psychiatric reports/evaluations.  Nothing in the evidence of the applicant indicates that he was suffering from any psychological or psychiatric problems. The applicant had not raised any either. There is no need to call those reports.

 (9)     Applying the wrong standard of proof.  The adjudicator indicated under the heading of persecution risk that the standard of proof was a reasonable possibility of such a risk. I agree with this.  Although he did not mention the same under BOR 2 and BOR 3 assessment, I have no reason to doubt that he used a different standard.

 (10)     No reasonable basis to reject my claim credibility.  Same as (1) above.

 (11)     Failure to consider the extended form state acquiescence.  Same as (2) above.

 (12)     Failure to consider the COI reports.  Same as (3) above.

 (13)     Irregularity of the decision maker being a different person than the interviewing officer. Same as (4) above.

 (14)     No proper basis for consideration of internal relocation. In paragraphs 47—51 of the TCAB decision, the adjudicator had considered alternative options for internal relocation.  I agree with his analysis.  There is no substance in this ground.

15.  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.

16.  I agree with the adjudicator that the basis of the applicant’s claim was not convincing in various important aspects.  It was only a land dispute with no official involvement.   In my judgment, there is no error of law or procedure.  The decision is reasonable.

Conclusion

17.  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