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HCAL 289/2018
[2020] HKCFI 470
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 289 of 2018
BETWEEN
| Rahman Zaiwr Ur |
Applicant |
| and |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
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consideration of the documents only; or |
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consideration of the documents and the Applicant being present / absent in open court; |
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 35-year-old national of Pakistan who entered Hong Kong illegally on 22 August 2014 and was arrested by Immigration Department on the same day. Afterwards he raised a non-refoulement claimon the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncleovera land dispute. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Sirka, Attock, Punjab, Pakistan. He did not receive any formal education and mainly worked as a farmer in his family’s farmland.
3. Upon his father’s death his paternal uncle, a wealthy and influential man in their home village, started to covet his father’s land by demanding that the land be transferred to him with the false premise to hold them on behalf of the Applicant and his brothers untilthey reach majority, and as a result he would frequently harass and threaten the Applicant’s mother over the transfer of the land to him.
4. When the Applicant reached the age of 17, his uncle shifted his threats and harassments towards him, and had on several occasions even had his men assaulted him by hitting him with wooden sticks that on the last occasion in 2005 the Applicant ended up in a hospital for medical treatments after a particularly severe beating.
5. Upon his discharge from the hospital the Applicant fled to Swabi to take shelter at his friend’s place where he stayed for three months before moving on to various places such as Peshawar, Lahore and Karachi.
6. In 2007 when he heard that his uncle was still looking for him everywhere, he decided it was no longer safe to remain in Pakistan, and so he departed for Malaysia where he stayed until 2014 when he went to China, and from there he sneaked into Hong Kong, andupon his arrest by the Immigration Department he raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form (“NCF”) on 17February 2015 and attendedscreening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 7 August 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of him being harmed by his uncle upon his return to Pakistan as low after all these years and when the last attack took place more than 10 years ago, that his problems with his uncle was a private family dispute 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 reasonable internal relocation alternatives are available in Pakistan with a large population of 199 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...
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