GHANI MUHAMMAD USMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1329/2018

[2020] HKCFI 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1329 of 2018

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Pakistan who last entered Hong Kong illegally on 29 March 2016 and subsequently raised a non-refoulement claim for protection with the Immigration Department on the basis that if he returned to Pakistan he would be harmed or killed by his neighbor over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sialkot of Punjab, Pakistan where his family owned a farmland in his home village.  Their neighbor Waseem, who also owned the land next to theirs, was a wealthy and influential businessman in the neighbourhood with political connections.

3.  One day in 1995 Waseem proposed to marry one of the Applicant’s sisters but was rejected by the Applicant’s parents.  As a result Waseem became furious with the Applicant’s family as he took their refusal as an insult to him.  To pacify the situation the Applicant’s family met with Waseem at the home of one of the village’s elders for discussion, during which the meeting turned into a quarrel and one of Waseem’s men pulled out a gun and shot the Applicant’s father in the leg.

4.  As a result the Applicant’s father was taken to the hospital while Waseem’s men were arrested by the police and later sentenced by the court to prison, but after several months they were released from prison after Waseem had paid bribe money for their release.

5.  Meanwhile the Applicant’s father passed away in the hospital, and his land was therefore inherited by the Applicant and his brothers.  Waseem then started to press them to sell their land to him, and when they refused, Waseem threatened them with violence,and on one occasion one of the Applicant’s brothers was assaulted by Waseem’s men and suffered a broken jaw, and on other occasions Waseem’s men would fire shots with their guns outside the Applicant’s home to scare him and his family.

6.  To avoid Waseem’s threats, the Applicant therefore left his home village in 1998 to take shelter at his aunt’s home in Karachi where he stayed for four years without incidents,and in 2002 he thought it would be safe and so he returned to his home in Sialkot.

7.  One day in 2006 while the Applicant and his family were gathering outside their house, Waseem and his men arrived with guns and started shooting at them, and when the Applicant and his brothers returned fire with their guns, the police soon arrived to arrest all of them, and while Waseem and his men were soon released without charge, the Applicant and his brothers were detained for possession of illegal weapons, which charge was however later dropped and they were released.

8.  Thereafter Waseem continued to make threats against the Applicant and his family,and the Applicant had to stay away in various places to avoid his threats, but when he heard that two of his brothers had been shot at by Waseem’s men, he heft it was not safe to remain in Pakistan, and so in February 2008 he departed for China, and from there he sneaked into Hong Kong, and upon his arrest by police he raised a torture claim on the basis of harms from Waseem, but which claim was eventually rejected by the Immigration Department,and in August 2012 he was repatriated to Pakistan.

9.  Upon returning to Pakistan, the Applicant stayed away from Sialkot to avoid Waseem’s threats, and asked his friends to negotiate with Waseem to settle their disputes,but when he later heard that their meeting turned violent during which Waseem’s men shot and killed one of his friends and injured the other two, the Applicant decided to leave Pakistan again to save his life, which he did in September 2013 for China, and from there again he sneaked into Hong Kong and raised his non-refoulement claim for protection,for which he completed a Non-refoulement Claim Form on 3 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 28 November 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 Waseem or his men upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from them, that his problems with Waseem were private personal disputes 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 reasonableinternal relocation alternatives are available in Pakistan with a large population of 204 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 Lahore orIslamabad where it would be difficult if not impossible for Waseem or his men to locate him.

12.  On 4 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 8 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board accepted the Applicant’s claimed disputes with Waseem over his land in his home village but found that they were private personal disputes withoutany official involvement that state protection as well as reasonable internal relocation optionswere available for the Applicant to safely relocate to other parts of Pakistan where he wouldnot be at risk of any harm from Waseem or his men that his claim for non-refoulement protection failed on all applicable grounds.

14.  On 9 July 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)   that the Director had merely adopted a formulaic and biased approach in assessing his claim;

 (2)   that the Director failed to properly and objectively consider the relevant COI on the overall condition of Pakistan including the ineffectiveness of the police and their corruption in assessing his claim;

 (3)   that the Board’s decision had never been read or translated to him which is procedurally unfair; and

 (4)   that it was wrong for the Board to find that state protection was available to the Applicant when his personal experience had showed it not to be the case.  

15.  These are however all very 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 Director or the Board had erred in their decisions, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was wrong for the Board to find that state protection was available on the basis of the relevant COI, or how the fact that the Board’s decision was not translated to the Applicant be a valid ground to challenge its finding or decision.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and that none of which are reasonably arguable for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board either.

16.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  The fact is that it has been established by both the Director and the Board in their respective 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.

18.  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.

19.  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