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HCAL 2901/2018
[2020] HKCFI 2718
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2901 of 2018
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Sawinder 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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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 10 February 1982 in village Awan Lakha Singh, District Amritsar, Punjab, India. He was educated up to class 5. He was trained in hairdressing and was a barber from 1994—2014. He was also a farmer. He was married with two sons and a daughter. His family lived with his father. He supported the Congress Party (‘CP’) in India. He helped in putting up banners and attended rallies during elections.
2. The basis of his claim was that Bagicha Singh (‘BS’) and his son Jaspal Singh (‘JS’) might harm or kill him if he returned to India. BS asked him to quit CP to join the Akali Dal Party (‘ADP’). He refused. BS was the head of the village.
3. A few days before the election day in April 2014, BS met him in the village. BS was with some men. BS asked him to quit CP and join ADP, he refused. BS felt insulted and threatened to kill him. According to his observation, BS was rich. He and JS had good relationship with ADP.
4. At about noon, on the election day in April 2014, he was attending the booth of CP. JS came over with 4 men. They assaulted him with hockey sticks. They damaged the booth. The others at the booth escaped. JS also fired his pistol into the air. After about 2 minutes, the group left. His left arm was seriously injured. He bled in his nose and mouth. He was hospitalized for 2 days. He was treated with medicines and injections. It took him around 25 days to recover.
5. When he reported to the police. The officer told him that they would not take action against ADP which was the ruling party in Punjab. A week later, he and his family moved to Nawan Jeewan and lived with his in-laws.
6. In October 2014, at around 5pm, JS and some men came to the dairy farm where he worked. They assaulted him with kicks and punches for about 3 minutes. There was a deep wound at his left leg. JS told him to leave India as he refused their demand. He was hospitalized for 2 days. He was given injection and painkillers. It took about 20 days to recover. His father-in-law reported to the local police station but was told to leave. He thought the police did not treat it as a formal report.
7. He fled to his maternal grandparent’s house in Jalandhar shortly afterwards. He started working as a barber at his uncle’s shop.
8. One day in November 2014, he met JS and some men on his way home. JS pointed a pistol at him. JS slapped him and scolded him for not joining the ADP. The other men assaulted him with hockey sticks. Some passers-by separated them. He was treated in a clinic and recovered in about 10 days. BS and JS did not threaten his father in his home village. They threatened his wife in Nawan Jeewan. They did not assault his father nor his wife.
9. He subsequently changed hiding places at Delhi, Gazipur and Lliyaz Masih. A friend arranged him to go to Hong Kong. There would be a lawyer waiting for him at the airport in Hong Kong. He left India in July 2015.
10. When he was refused entry in Hong Kong, he raised a non-refoulement claim. He pointed out that the signification prepared by his lawyer at the Hong Kong Airport was not accurately. He relied on the content of the NCF and the screening interview.
11. At the time of the screening interview, he lost contact with his father and wife. He still believed that he would be killed if returned to India.
12. He thought the police would not take action against the ruling party ADP in Punjab. Relocation would not be viable as JS could locate him anywhere in India. He was not aware of the Central Vigilance Commission (‘CVC’) in India.
The Decision of the Director
13. The Director pointed out that BS and JS lived at the same village as the applicant. Had they wanted to kill or seriously harm him, they had a lot of chances. The injuries in the few assaults were not serious.[1]
14. There was no evidence that BS and JS had the support of ADP in the assaults. There was no evidence that any public official was involved. There was insufficient evidence to conclude, as the applicant did, that the police deliberately ignore the applicant or his father-in-law’s complaint. There was no evidence of systemic refusal to deal with the complaints by the Indian authorities. The Director had considered various COI, he was satisfied that there was reasonable state protection and channels for complaint against corruption.[2]
15. 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 Delhi and Mumbai. The Director was not convinced that BS and JS could locate the applicant anywhere in India. It would not be unreasonable for him to relocate given his age and education.[3]
16. For the claim under BOR 3, the Director found that the applicant’s injuries did not amount to ‘minimum level of severity’. The facts did not support a genuine and substantial risk of ill-treatment if he returned to India. The BOR 3 claim failed.[4]
17. For persecution risk, the applicant was not within any one of the reasons of persecution risk according to the Refugee Convention. Given reasonable chance of relocation and the private nature of the dispute, this basis of claim failed.[5]
18. 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. There was no evidence of official involvement, acquiescence or instigation. The applicant was never targeted by the Indian government.[6]
19. The Director rejected his claim on 21 September 2015.
20. On 7 February 2017, the Director further rejected the claim on BOR 2. The applicant failed to submit further evidence in relation to BOR 2 despite sufficient notice. The Director based on the existing facts for his assessment. The Director concluded that there was no evidence to support arbitrary deprivation of the applicant’s life.[7]
The Decision of TCAB
21. The TCAB rejected the appeal on 12 January 2016. The adjudicator found the following after considering the documentary evidence and the oral evidence during the hearing held on 17 December 2015 as the following:
(a) Despite several incidents of attack, the adjudicator found that the applicant’s injuries did not amount to the definition of ‘torture’ under s.37U of the Immigration Ordinance. There was no evidence that the torture was done for the purposes listed in the definition. The alleged purpose was to force the applicant to join ADP. The adjudicator found no evidence of involvement or acquiescence of any public official. There was no evidence that BS and JS were connected with ADP in all those incidents.
(b) According to the COI, there was no substantial ground to believe that the police or the state would deliberately withhold protection from the appellant. There was no reason to believe that they would fail to exercise due diligence to prevent, investigate, prosecute and punish BS and JS. Nor was there any evidence that the police in India deliberately take no action against them. There was no real risk of torture. This claim failed.[8]
(c) The adjudicator opined that the injuries of the applicant did not amount to ‘minimum level of severity’. There was no ill-treatment physically or mentally. There was no genuine and substantial risk of ill-treatment under BOR 3.[9]
(d) The adjudicator pointed out that the harm to the applicant was a private matter. It was not for any of the reasons under the Refugee Convention. There was no evidence that ADP was involved. There was reasonable state protection. The claim based on persecution risk failed.[10]
(e) After the first decision of the TCAB on 12 January 2016, the Director invited the applicant to file further evidence for BOR 2 claim in January 2017. The applicant did not respond to the invitation. The Director rejected the BOR 2 claim based on the existing evidence on 7 February 2017.[11]
(f) On 18 April 2017, the applicant filed a notice of appeal against the Director’s further decision. The TCAB refused to allow the late filing. The adjudicator made the following findings in the decision dated 14 December 2018:
(i) The deadline for filing the notice should be 23 February 2017. The applicant was about 7 weeks out of time.
(ii) In the notice of appeal, the applicant stated in gist that he had not received the further decision of the Director. There was no explanation whatsoever. There was no documentary evidence in support.
(iii) The adjudicator found that the appellant had changed his address, however, he had not informed the Immigration Department.
(iv) The adjudicator pointed out that in the Notice of appeal/petition for non-refoulement claim, a claimant was reminded to update any change of correspondence address, telephone number or legal representative.[12]
(v) The adjudicator stressed that the applicant should bear the consequence of any delay arising from the change of address.[13]
(vi) The adjudicator did not accept that there was reasonable ground for the late filing. He went on to consider the BOR 2 claim based on the available material. He concluded that there was no merit.[14]
Judicial Review
22. The applicant applied for leave to apply for judicial review on 18 December 2018. In his supporting affirmation, he pointed out that the TCAB and Director disregarded his dangerous situation.
23. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
24. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director. He had not indicated whether there would be additional evidence to support the BOR 2 claim.
25. I notice that the adjudicator did not specifically consider internal relocation in his decision. However, I think this would not affect the validity of his decision for the following reasons:
(a) The issue of internal relocation arises when there is a genuine risk of torture or persecution in the home country of a claimant.
(b) If the risk is localized and it is not unreasonable for the claimant to relocate to another part of the home country, then there is no need for international protection either under the Refugee Convention or CAT.
(c) It is only when there is a genuine risk of torture or persecution and internal relocation is unduly harsh, then international protection is warranted.
(d) The adjudicator found that there was no risk of torture or persecution as follows:
(i) The applicant did not suffer pain and suffering amounting to torture as defined under s.37U of the Immigration Ordinance. The torture was not inflicted for the purposes as set out in that section. There was no evidence of any involvement, instigation or acquiescence of any public official. There was reasonable state protection in India.
(ii) The ill-treatment sustained by the applicant did not amount to ‘minimum level of severity’. Given the evidence of the applicant, there was no genuine and substantial risk of ill-treatment.
(iii) Similarly, the evidence of the applicant presented to the Director could not amount to arbitrary deprivation of life, death penalty or genocide under BOR 2.
(iv) The assault was not for any of the reasons under the Refugee Convention. There was no evidence that ADP was involved. There was reasonable state protection. There was no persecution risk.
26. The adjudicator had refused the late filing of the notice of appeal to TCAB against the further decision of the Director on BOR 2 claim. The reasons were set out in the decision dated 14 December 2018. The applicant failed to update his address and made no arrangement for any post to be diverted to him. He was out of time for about 7 weeks. In my view, the adjudicator was justified to refuse the late filing.
27. In fact, the adjudicator had considered the existing material and concluded there was no risk under BOR 2.
28. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
29. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 10th 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 10 November 2020
Sawinder 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 10 November 2020
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2373/15/10/42/IN489 & BOR 415/17/4/64/IN118
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1468/15 (formerly RBCZ/368/15) & RBCZ/9001775/16
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Paragraphs 12-13, the decision of the Director.
[2] Paragraphs 15.3-15.7 & 16.2, the decision of the Director.
[3] Paragraphs 16-17, the decision of the Director.
[4] Paragraphs 18-20, the decision of the Director.
[5] Paragraphs 21-25, the decision of the Director.
[6] Paragraphs 26-31, the decision of the Director.
[7] Paragraph 6 of the decision of the Director dated 7 February 2017.
[8] Paragraphs 22-43, the decision of the TCAB.
[9] Paragraphs 46-47, the decision of the TCAB.
[10] Paragraphs 50-53, the decision of the TCAB.
[11] Footnote 7 above.
[12] Paragraph 8 of the decision of TCAB dated 14 December 2018.
[13] Paragraph 10 of the decision of TCAB dated 14 December 2018.
[14] Paragraph 12 of the decision of TCAB dated 14 December 2018.
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