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HCAL 2963/2018
[2021] HKCFI 2411
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2963 of 2018
BETWEEN
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Atwal Ravinder Singh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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:
1. The applicant came to Hong Kong on 1/1/2013 as a visitor. He overstayed until 18/10/2013 when he was arrested by the police. He raised the non-refoulement claim in this case on 19/10/2013.
Background
2. The applicant was born on 5/6/1991 in Moga District, Punjab, India [1]. He was single. His parents and siblings were in India. He received education for 15 years. He had a BA degree from Chandigam University in 2010. He further studied at the Industrial Training Institute (“ITI”) in Faridkot in 2011.
3. In February 2012, he was the President of the student association of the Congress Party (“CP”). He reported directly to the Chairman of the “CP”.
4. In August 2012, he was attacked by a group of “ADP” [2] members and gangsters in the classroom. He and other “CP” students were beaten up by them with bare hands. They threatened to cause dire consequence unless he resigned from the “CP”. He and others sustained minor bruises. [3] (1st incident)
5. He reported to the Principal and the ADP students were disciplined. He had not reported the gangsters to the police.
6. One evening about a week later, while he was in the kitchen of “ITI” with 2 friends, 10 unknown gangsters rushed in. The gangsters vandalized the kitchen and assaulted them with baseball bats. The gangsters threatened to kill them if they did not quit the “CP”. The gangsters urged them to join the “ADP”. They managed to escape and hid at his friend’s place nearby. They sustained minor bruises.
7. They reported to the police the next day. There was no concrete action as the police was influenced by the “ADP” which was the ruling party. He did not report to the leaders of “CP” as he thought nothing could be done. (2nd incident)
8. One morning in September 2012, while he was on a bus to “ITI”, 20 gangsters stopped the bus. They dragged him from the bus and assaulted him with sharp weapons. He was taken to a hospital and treated for the wounds and bruises. He stayed in the hospital for a week. He gave a statement to the police but no action was taken.
9. One day in October 2012, some gangsters stopped him outside the campus of “ITI”. He was threatened that if he did not quit the “CP” there would be serious consequences. He was scared and returned home. Since then, he hid at home and various places in the home vicinity to avoid the gangsters. He worried that they could locate him as they had a wide network. (3rd incident)
10. In November 2012, the gangsters went to his home several times and threatened his family. His father advised him to leave India. His father paid 45,000 rupees for arranging him to go to Hong Kong. He left India from Delhi on 31/12/2012 and arrived at Hong Kong on 1/1/2013. He was allowed to stay for 14 days. He had not filed his non-refoulement claim earlier as he was ignorant about the procedures. He was afraid that he might be sent back to India.
11. In Hong Kong, he contacted his parents regularly. The gangsters still looked for him. They came to his home regularly and repeated the threats to his family. He would be in danger if he returned to India given his affiliation with the “CP”. The “ADP” would be able to locate him anywhere in India.
The Decision of the Director
12. The Director pointed out that the risk of harm would be low for the following reasons:
(a) There were several encounters with the gangsters, his injuries were not serious. It did not amount to “a minimum level of severity”. Their intention was to threaten him instead of causing serious harm or to kill him.
(b) He asserted that some assailants were members of the “ADP” however he did not know their background. There was no evidence that the “ADP” was involved in the dispute. It was not accepted that the assailants had the resources to mobilize manpower to locate him all over India.
(c) He had delayed for about 9 months to file his non-refoulement claim in Hong Kong. He only did so after he was arrested for overstay. This conduct was inconsistent with someone whose life was under imminent danger.
(d) He was just involved in the college level of the “CP”. There was no evidence that the “ADP” was behind the dispute. There was no evidence of government involvement. In fact, he was not targeted by the government. He could depart India without any problem.
(e) He did not follow up his reports with the police or take the case further to other authorities. There was no evidence that the Indian authorities as a whole were unwilling and unable to provide reasonable protection.
(f) In the election in 2017, the “CP” had gained majority seats in Punjab while the “ADP” was less powerful. However, he maintained that the police would not help as he was only at college level.
(g) The Director had considered various COI. While there were corruption, human rights violations and police inefficiency, there were on-going reforms with positive improvements. There were different channels established to handle various unfair and delayed police actions, such as, complaints to the Superintendent, the Magistrate or the NHRC[4]. Public interest petitions by NGO were allowed in seeking redress of breach of official duty. Special channels were established to tackle corruption through the CVC.[5] There were newspaper reports that senior police officers were prosecuted for unlawful conduct. The Director was satisfied that there was reasonable State protection.
(h) The law allowed internal relocation. India was a large and populated country. There were reasonable options for relocation, e.g., New Delhi. It was not unduly harsh for the applicant to relocate given his background.
13. The Director rejected his claims on all grounds on 2/11/2017.
The Decision of TCAB
14. The adjudicator held an oral hearing on 9/8/2018. She rejected the appeal on 20/12/2018. The main reasons were as the following: [6]
(a) In the TCAB hearing, the applicant said he was only the vice President of the student association of “CP”. However, in his NCF, he asserted that he was the President.
(b) In the TCAB hearing, the applicant asserted that the gangsters asked him to sell drugs in “ITI”. This was not mentioned in his NCF—he was only threatened to quit the “CP”.
(c) The applicant believed that the police would not assist as “ADP” was in power. However, he also asserted that all parties in the dispute were student members and had nothing to do with politics. His believe was not reasonable.
(d) In the TCAB hearing, he asserted that he could recognize the gangsters who stalked him, vandalized his home and threatened his family on several occasions. In his NCF, he said he was stalked by strangers. He did not mention that his home was vandalized.
(e) The applicant embellished his evidence in the TCAB hearing. The adjudicator rejected his evidence that he was targeted by student members of the “ADP” and the gangsters. He failed to prove the primary facts of his claim.
(f) The adjudicator rejected the appeal on all grounds.
Judicial Review
15. The applicant applied for leave to apply for judicial review on 24/12/2018. In his supporting affirmation, he did not specify any error of the TCAB decision.
16. It is for the TCAB to determine credibility of the applicant and the facts of the claim. In general, this court would not interfere. In judicial review, it is for this court to determine whether there is any error of law or procedures. Whether the TCAB decision was rational.
17. I agree with the findings of the adjudicator. The applicant is not credible given the discrepancies. In my judgment, there is no error of law or procedure. The TCAB decision is reasonable.
CONCLUSION
18. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 19th day of August 2021.
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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 August 2021
Atwal Ravinder Singh
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 August 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9099/17/11/110/IN1712
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2343/17
(formerly RBCZ 698/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Sohoke, Baghapurana Tehsil.
[2] Akali Dal Party.
[3] In the interview before the Director, he clarified that he was just slapped. It was minor.
[4] National Human Rights Commission.
[5] Central Vigilance Commission.
[6] Paragraphs 29—61, the decision of the TCAB dated 20/12/2018.
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