ADEEL MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 512/2017

[2018] HKCFI 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 512 of 2017

     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 (counsel for) the Applicant being absent / in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Pakistan who entered Hong Kong on 25 October 2013 with permission to remain as a visitor up to 5 November 2013 when he did not depart but instead overstayed until 5 February 2014 when he was arrested by police.  After he was referred to the Immigration Department for investigation, on 8 February 2014 he raised a non-refoulement claim with the Department on the basis that if he returned to Pakistan he would be harmed or killed by his uncle 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 Niya Mianapura, Mashriq, Sialkot of Punjab, Pakistan where his mother and younger brother still live.  After leaving school he worked as a purchasing manager for a company in Sialkot.

3.  In 2005 upon the passing of his father he and his brother inherited in equal names a piece of residential land from his father’s estate in his home village.  In 2012 his uncle, who owned the adjoining land and was an active member of the political party Pakistan Muslim League (Noon) (“PML(N)”) with strong connection with the government, wanted to buy the land from the applicant and his brother who was then still under aged, but when the applicant refused, his uncle threatened that he and his family would suffer consequences if the land was sold to somebody else.

4.  For the next several weeks his uncle kept calling the applicant to sell his land to him, and when he still refused, his uncle escalated his threats to kill him and bury him in the land.  Then one day several men of a military group known as Lashkar-e-Tayyaba (“LeT”) came to the applicant’s home and demanded that he sell his land to his uncle, and when he refused a fight broke out between them, and although the applicant did not suffer any serious injuries, he reported the matter to the police.

5.  However, a few days later some policemen came to the applicant’s home to arrest him on a false claim made by his uncle that he had cheated him of the sale money over his land.  But as the applicant was then not at home, the police asked his mother to tell him to surrender to the police before they left.  Upon hearing this the applicant moved his family to his grandmother’s place in Khichian Village where no further incidents happened to him or his family.  In October 2013 the applicant was sent by his company to Hong Kong on business during which he received a telephone call from his mother informing him that some members of PML(N) had come to his grandmother’s place looking for him and threatened to kill him for his refusal to sell his land to his uncle, and that he should not return to Pakistan for his own safety.  The applicant therefore decided to remain in Hong Kong and subsequently raised his non-refoulement claim with the Immigration Department.     

6.  By a Notice of Decision dated 30 November 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and 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”).

7.  In his decision the Director found that the dispute between the applicant and his uncle arising from the sale of his land is a private and personal matter without any involvement of the state or the police and hence state protection would be available to the applicant if resorted to upon his return to Pakistan, and that reasonable internal relocation alternatives are available in Pakistan with a large population of 200 million people spread over a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the applicant to move to areas other than his home district such as Lahore where he can live and work free of any threats from his uncle.  

8.  On 2 December 2016 the applicant filed his appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 21 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 June 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the applicant’s accounts of the dispute with his uncle but did not believe that the threats from his uncle were meant to be acted upon in particularly when there was no physical violence exercised on him and that since his departure his mother and brother have remained unscathed, that it was a private dispute without any involvement of the state or the police that state protection would be available to the applicant upon his return to Pakistan if those threats still persisted, and concluded that his claim failed on all the applicable grounds.  

10.  On 14 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board but did not provide any ground for his intended challenge, and in his supporting affirmation of the same date he merely stated the following:

“ I want to draw your attention that my life is in danger if I go back to Pakistan, having said this I am afraid to going back, kindly re-study my case.”

11.  As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the adjudicator’s decision in dismissing the claims, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.  

12.  Nevertheless, 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.

13.  In the premises I do not find any ground which the applicant might reasonably argue in his 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