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HCAL 2944/2018
[2020] HKCFI 2927
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2944 of 2018
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Kathat Gopal |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
Background
1. The applicant was born on 1 January 1992 in village Jaitpura, Beawar city, Sate Rajasthan, India. He was educated up to class 10. He farmed on his father’s land from 2008—2015. He was also a welder at a cement plant from 2013-2015. He was single.
2. His father’s plot of land was near the main road in Beawar. In 2015, his father was seriously ill and transferred the land to him. He had not seen the official document.[1] A villager (‘Goham’), who was a gangster, wanted to build a brick plant on his land. Around March 2015, Goham went to the applicant and demanded the land be transferred to him otherwise he would kill the applicant. The applicant reported the threat to the police officer who refused to register the complaint as it was a private dispute. He thought the officer was biased. The officer was a supporter of Bharatiya Janata Party (‘BJP’), so was Goham.[2]
3. In April 2015, Goham came with several men. They were BJP supporters. Goham asked the applicant to sign a document to transfer the land to Goham but he refused. They beat him with sticks causing bruises all over his body. After the gang left, he was taken to a clinic. He received sutures and dressing of the wounds. He recovered in 15 days.
4. He reported the incident to the same police officer who promised to investigate. He was not given any first information report (‘FIR’). He thought BJP would protect Goham through a friend (‘Hari’) who was a member of the Legislative Assembly. He did not follow up the case with the officer as the police station was too far away from home. He did not complain to other officers or police station.
5. At the end of April 2015, he stopped farming. He went to New Delhi and stayed with his sister for 2 months. He was afraid of Goham who tried to locate him in the home village. Goham however did not disturb his family.
6. During the time in New Delhi, a police officer came to his house in the home village asking about his whereabouts. His family assumed that Goham had filed a complaint against him for theft and fighting.[3]
7. His sister arranged him to come to Hong Kong in June 2015. A lawyer was instructed to assist him in Hong Kong.
8. On 24 June 2015, he took a flight from Mumbai via Bangkok to Macau. He was initially refused entry on 27 June 2015 when he took a Macau ferry to Hong Kong. In the second attempt on the same day, he lied to the Immigration Officer that he would just stay for 2 days. He was then allowed to enter Hong Kong. He filed the non-refoulement claim on 28 June 2015 with the assistance of a lawyer.[4]
9. His sister told him that Goham had occupied his land illegally. His family did not take any action against Goham. They could not afford any bribe.[5] He was not aware of the Central Vigilance Commission (‘CVC’) for combating corruption.
10. If he returned to India, he believed Goham would harm or kill him. He worried about his sister and her family.
11. Internal relocation was impossible as Goham was influential and rich. Hari was his friend. The police officer who handled his case was a cousin of Hari. There were surveillance cameras everywhere in New Delhi. He would be easily located.
The Decision of the Director
12. The Director pointed out the following to conclude that the future risk of harm was low [6]:
(a) The relationship between Goham and Hari had never been supported by any evidence other than a bare assertion. Hari had never met or harm the applicant.
(b) There was no evidence that the malpractice of the police officer was connected to Goham or Hari. In fact, both Hari and the officer had done nothing to harm the applicant.
(c) The land dispute was a private matter. There was no evidence that the BJP had done anything to encourage the conduct of Goham. In fact, there was no evidence that BJP was involved.
(d) The applicant recovered in 15 days after the assault in April 2015. He could travel to New Delhi after recovery. There was no further threat when the applicant stayed in New Delhi. His family was not disturbed in the home village. This was indicative that Goham had no intention to kill him. The threat was localized and did not amount to ‘a minimum level of intensity’.
13. The Director found that the Indian government could provide reasonable protection and assistance to citizens despite there were also reports of widespread corruption and police incompetence. There was a functioning judiciary and a legal aid system. The Indian government would not tolerate malpractice of individual officers. There were positive reforms which improve police effectiveness. There were alternative channels for complaint, eg CVC. [7]
14. The Director found that there was reasonable opportunity for internal relocation. The law permits internal movement. India was a large country with a large population. There were big cities such as New Delhi and Mumbai. There was no evidence that BJP had targeted the applicant. During his stay in New Delhi, the applicant and his sister were safe. It would not be unreasonably harsh for him to relocate given his age and education.[8]
15. For the claim under BOR 3, his injuries, physical or mental, did not amount to ‘minimum level of severity’. The circumstances of the applicant did not support a genuine and substantial risk of ill-treatment if he returned to India. This claim failed.[9]
16. For persecution risk, the ill-treatment of the applicant was not within the ambit of ‘persecution’ according to the Refugee Convention. The whole incident was a private land dispute. This basis of claim failed.[10]
17. For torture risk, the applicant’s injuries did not amount to sever pain or suffering within the definition of ‘torture’ under s.37U (1) of the Immigration Ordinance. There was reasonable state protection. No evidence that the assault arose from official involvement, acquiescence or instigation. The applicant was never targeted by the Indian government. He could leave India without any problem. [11]
18. The Director rejected all the above claims on 4 September 2015.
The BOR 2 claim
19. On 26 January 2017, the Director invited the applicant to submit further facts in relation to all claims including BOR 2 ground. However, the applicant did not submit any further facts despite sufficient notice.
20. The Director proceeded to assess the BOR 2 ground relying on the existing information. The Director found no evidence to support arbitrary deprivation of life. The Director dismissed this claim on 16 February 2017.
The Decision of TCAB
21. The TCAB rejected the appeal on 30 November 2015[12]. The adjudicator set out the facts of the applicant’s case as above. She also set out the governing legal principles. She pointed out the following reasons which affect the credibility of the applicant:
(a) During the hearing, the applicant said his home was in Jaitpura village, the plot in question was in Jetpura. The distance between Jaitpura and Jetpura was 15 km. The adjudicator pointed out that each day the applicant would have to take a 6-hour-walk to and from the plot of land in total.[13]
(b) The applicant could not produce any evidence to show that he was the owner of the plot or the present status. According to the relevant COI, there was a computerized registration of land title in Rajasthan District. It should not be difficult for the applicant to obtain official documents through his lawyer who had been assisting him in filing the non-refoulement claim all along [14].
(c) The applicant did not know that if Goham killed him, the plot would revert back to his father under the Hindu law. There was little point for Goham to do so.[15]
(d) There was no evidence to support Goham’s intention to change the use of the plot. Given the land registration system, the applicant should be able to submit documents of such change.[16]
(e) The above was all material assertions about the land dispute. They were drawn to the attention of the applicant during the oral hearing. The applicant was unable to provide satisfactory explanation.[17]
22. The adjudicator did not accept that the applicant was the owner of the plot of land in question. The main reasons were: [18]
(f) The applicant was assisted by his private lawyer in preparing for the papers in support of the non-refoulement claim. He could not have mixed up the whereabouts of the plot. He could have asked his lawyer to locate documents in support his ownership of the plot.
(g) It was not plausible for the applicant to walk 6 hours each day for farming.
(h) The applicant did not know the full name of Hari. There was no evidence on the relationship of Goham and Hari. No explanation why Hari wish to assist Goham in the land dispute.
(i) There was no medical evidence to support the injuries nor treatment at the unknown clinic.
(j) There was no evidence that the applicant was targeted by the police because of the alleged criminal charge.
23. The applicant did not fall into any of the categories of persecution under the Convention. There was no State involvement or acquiescence. Persecution risk failed.[19]
24. The injuries claimed by the applicant did not amount to a minimum level of severity. As a whole, there was no genuine and substantial risk of ill-treatment if returned to India. BOR 3 claim failed.
25. The applicant did not suffer pain or suffering for the purposes as defined under s. 37U of the Immigration Ordinance. There was no evidence of State or public official involvement, acquiescence or instigation. This ground failed.
26. Since there was no real risk of persecution, the adjudicator did not think it was necessary to consider internal relocation.[20]
The BOR 2 claim
27. On 27 March 2017, the applicant filed a notice of appeal against the decision of the Director in relation to BOR 2. In that decision dated 16 February 2017, the Director dismissed the claim under BOR 2 based on the existing material as the applicant failed to file any further facts.[21]
28. The adjudicator noted that the notice was 23 days late. The adjudicator further noted that the applicant had changed his address. It transpired that the further decision of the Director in relation to BOR 2 was sent to the old address. The adjudicator however was of the view that the applicant must bear the consequence of failure to inform the Director his change of address. Despite all this, the adjudicator was minded to consider the merits of the applicant’s BOR 2 claim based on the existing material.[22]
29. The adjudicator found no evidence that there was a real risk of arbitrary deprivation of life. She rejected the BOR 2 claim on 11 December 2018.
Judicial Review
30. The applicant applied for leave to apply for judicial review on 21 December 2018. In his supporting affirmation, he disagreed with the TCAB decision. The applicant repeated briefly the basic grounds of his claim. He has not pointed out any specific error in the decisions of the TCAB and the Director.
31. In judicial review, this court decides whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. Finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.
32. The adjudicator is right to stress that the applicant must bear the consequence of late filing. There is a duty to inform the Director and TCAB of any change of address according to s 37ZA (2) of the Immigration Ordinance. I agree with the adjudicator that there is a need to enforce compliance of the rules to ensure expeditious disposal of a case while bearing in mind overall fairness. In any event, the issue of late filing is academic in this case as the adjudicator did consider the merits before rejecting the BOR 2 claim.
33. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
34. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 19th day of November 2020.
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(Mike Mak) |
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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 19 November 2020
Kathat Gopal
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 19 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2264/15/9/117/IN465 & BOR 338/17/3/109/IN87
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1273/15 & RBCZ 9001767/16 (formerly RBCZ 354/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Paragraphs 6.4-6.6, the decision of the Director.
[2] Paragraphs 6.7-6.8, the decision of the Director.
[3] Paragraphs 6.16-6.17, the decision of the Director.
[4] Paragraphs 6.18-6.20, the decision of the Director.
[5] Paragraphs 6.21-6.23, the decision of the Director.
[6] Paragraphs 11-15, the decision of the Director.
[7] Paragraphs 13-14, the decision of the Director.
[8] Paragraphs 15, the decision of the Director.
[9] Paragraphs 16-18, the decision of the Director.
[10] Paragraphs 19-22, the decision of the Director.
[11] Paragraphs 23-26, the decision of the Director.
[12] The appeal against BOR 3, persecution risk and torture risk.
[13] Paragraphs 46-47, the decision of the TCAB.
[14] Paragraphs 48-52, 56-58, the decision of the TCAB.
[15] Paragraphs 51-52, the decision of the TCAB.
[16] Paragraphs 57-58, the decision of the TCAB.
[17] Paragraphs 62-70, the decision of the TCAB.
[18] Paragraph 71, the decision of the TCAB.
[19] Paragraphs 72-83, the decision of the TCAB.
[20] Paragraphs 103-104, the decision of the TCAB.
[21] Paragraphs 19-20 above.
[22] Paragraphs 18-24, the further decision of the TCAB dated 11/12/2018.
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