GINNY BHUPINDER AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 98/2019

[2024] HKCFI 1718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 98 OF 2019

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 the 1st, 2nd, 3rd and 4th Applicants (“the Applicants”) in open court;

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The Applicants are a married couple and their 2 children all national of India who arrived in Hong Kong on 11 November 2013 as visitors with permission to remain as such up to 25 November 2013 when they did not depart and instead overstayed, and on the following day on 26 November 2013 they surrendered to the Immigration Department and jointly raised a non-refoulement claim for protection on the basis that if they returned to India they would be harmed or killed by certain local supporters of the political parties Bharatiya Janata Party (“BJP”) and /or Shiromani Akali Dal (“SAD”) as the 1^st Applicant (“A1”) supported their rival Congress Party (“CP”) and/or by a local SAD member for having assisted the local police in their investigation of an offence of rape committed by that SAD member. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 now aged 58 was born and raised in Banga City, Nawanshahr District, Punjab State, India. After leaving school he worked as a tailor and later ran his own tailor shop in his home district, married his wife the 2^nd Applicant (“A2”) now aged 48, and raised a family with 2 children, a son the 3^rd Applicant (“A3”) now aged 20, and a daughter the 4^th Applicant (“A4”) now aged 18.

3.  At the age of 18 A1 started to follow his family’s tradition to support CP regularly attended their local meetings and activities, and also assisted in their campaigns during elections when he and his fellow CP supporters frequently came into violent conflicts with local supporters of BJP and SAD which were common sights in the country, and during which there would be mass brawls between these supporters attacking each other with wooden sticks and other weapons, and resulting in numerous injuries and sometimes even deaths, and in which A1 had often been involved in such conflicts and suffered various injuries.

4.  One day in 2009 while he was on his way home from the market and was walking past the home of a neighbour, A1 heard a woman screamed, then saw a half-naked woman rushing out, followed by a man whom he recognized as a local SAD member by the name of Ranjeet Singh (“RS”) who then jumped on a motorcycle and sped away, and later he heard from people in the neighbourhood that a woman in that house had been raped by RS.

5.  On the following morning A1 was informed by the police that they were investigating the case of RS being accused of having raped the woman, and was asked to give a statement of what he had seen the previous night, which he did and then signed his statement given to the police.

6.  On the basis of A1’s statement given to the police, RS was subsequently arrested and charged for the rape but was released on bail pending his trial, and for which A1 was served by the police with a summons to attend the trial as a witness for the prosecution, whereupon RS and his SAD people started coming to A1’s home and shouted threats against him and his family almost every night, and also at other places such as his tailor shop and whenever they ran into each other on the streets.

7.  During one of such occasions RS and his followers even tried to set fire to A1’s home, but A1 managed to put it out with the help of his neighbours without serious damage to his home.

8.  On other occasions RS and his men tried to abduct A1’s 2 children, A3 and A4, on the streets but with the help of other passers-by they also managed to make their escape without harm.

9.  On another occasion while A1 was out with his family on the way to the town market, some men drove by on their motorcycles and knocked A1 onto the ground and then pounced on him by punching and kicking him until other passers-by were gathering that those men then fled from the scene on their motorcycles, and thereafter A1 was taken to the local hospital for medical treatments and that one of his legs had to be put in a cast due to serious damage to his knee.

10.  Despite the many reports to the local police by A1 of these attacks on him and his family, they were unable to get any protection and instead were frequently ignored or even harassed by the police whom they suspected were affected by political pressure from SAD, and which caused further fears and frustration to A1 and his family.

11.  Eventually by end of 2009 due to constant threats and intimidations from RS and his followers, A1 and his family decided to leave their home town by closing down his shop and moved to Ludhiana, but still they continued to receive threatening phone calls from RS and his men which then drove them to move further away in mid-2010 to Village Bhattian in Salem Tabri where A1 and A2 ran a tailor shop to make their living to support the family.

12.  One day in October 2010 while A1 and A2 were on their way to the town market, A2 was knocked down by some men on motorcycles who then sped away, but A1 recognized one of them as a follower of RS.

13.  Fearing that they had been located by RS and that they could not be on the run forever, A1 therefore contacted RS to offer to withdraw being a prosecution witness in RS’s criminal trial in exchange that RS would leave him and his family alone, to which RS suggested to meet on the next day in Phagwara to discuss terms.

14.  However, on the following day when A1 arrived at the agreed meeting place together with some friends, RS and his followers were already there waiting, and when he saw A1, RS rushed up to him to curse at him and then started punching and kicking him all over his body that A1 fell onto the ground, and only when a crowd started to gather that RS stopped attacking and left with his men, whereupon A1 was taken by his friends to the hospital for medical treatments.

15.  As the threats and attacks from RS against him and his family persisted, including several more attempts to attack and abduct his children, A1 decided that it was no longer safe for him and his family to remain in India, and so in January 2010 he and on occasions with A2 travelled to various countries including Argentina, France, Indonesia and Malaysia to look for a suitable place for the family until February 2011 when they returned to their home in Bhattian, India to be with their children before moving on with the family to Hoshiarpur, Amritsar, New Delhi, Chennai, and Kolkata for the next 2 years to avoid being located by RS and his men but to no avail, as they kept running into RS’s men and receiving news that they were closing in on them wherever they were hiding.

16.  Eventually A1 made arrangements for his family to leave the country for Hong Kong, which they did in November 2013 when they departed India first for China, and from there they later travelled to Hong Kong where they subsequently overstayed and raised their non-refoulement claims for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 12 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

17.  While released on recognizance pending the determination of their claims, and to avoid any attention from the local Indian community in Hong Kong for fear that their whereabouts might be relayed to RS in India, A1 and his family stopped attending at the local Sikh temples and instead converted their religion from Sikhism to Christianity.

18.  By a Notice of Decision dated 27 July 2017 the Director of Immigration (“Director”) rejected the claims of all the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

19.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from those local supporters of BJP/SAD or RS and his followers upon their return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of those BJP/SAD supporters to harm or kill them or any political reasons for them to do so in particularly as to A1’s family or to still have any further adverse interest in A1 after all these years since he and his family left their home district in 2010 and then the country in 2013, while the threats of harm from RS and his men arose from some private dispute between A1 and RS only without any official involvement that state or police protection would be available to A1 and his family if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for A1 and A2 as able-bodied adults with working experience to move with their 2 children to other areas of the country away from their home district in large cities such as Mumbai or Bangalore where it would be difficult if not impossible for RS to locate them.

20.  On 3 August 2017 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 13 July 2018 with their lawyer from DLS before the Board during which A1 and A2 gave evidence and answered questions raised of their claims by the Adjudicator for the Board and with submissions made on their behalves by their lawyer, and that they also raised 2 additional claims of fear of persecution from the Sikh community for having converted their religion from Sikhism to Christianity while in Hong Kong, and of fear of harm from the Indian authorities for having sought non-refoulement protection in Hong Kong. On 12 October 2018 their appeals were dismissed by the Board which also confirmed the Director’s decision.

21.  In its decision the Board found material inconsistencies discrepancies and implausibility in the evidence of A1 and A2 that it doubted the credibility of their claim of fear of harm from RS and his followers or of the Indian authorities that caused them to leave their country to come to Hong Kong to seek protection and rejected A1’s claim of having witnessed a rape committed by RS or that he had given a statement to the police to assist in their investigation against RS or that RS and his followers had subsequently made all sorts of threats or intimidations or attacks on A1 or his family or of any adverse interests of the police or authorities or any rival political parties in him or his family that it rejected the Applicants’ claims of fear of harm from those persons or bodies or authorities as alleged, that in any event even if such risk were real that given the subsequent suicide and death of the rape victim as disclosed by A1 at the hearing that relevant COI show that no further action or prosecution would be brought against RS as conceded by the Applicants’ lawyer, and hence no further reason for RS to continue to have any adverse interest in A1 or his family, and while the Applicants were given the benefit of the doubts that they did and did genuinely convert their religion to Christianity for which they may face some social harassment and discrimination as Christians upon their return to India but found no evidence that they would face any risk of serious harm which may amount to the Proscribed Harms and that state and police protection would available to them if resorted to upon their return to India, nor would they according to reliable and relevant COI face any problems or prosecutions from the Indian authorities for having applied for non-refoulement protection in Hong Kong upon their return that the Board concluded that their claims for non-refoulement protection failed on all applicable grounds.

22.  On 10 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward one ground for their intended challenge, namely that there was procedural unfairness or irrationality in the Board’s assessment that the rape charges against RS would have been dropped by the prosecution after the victim had committed suicide without any evidence that it would be the case according to the law and criminal procedure in India, and without giving any weight or consideration to the COI before the Board of a BBC report of an accused charged for the rape of a woman was subsequently also charged with murder after the victim had died, and hence the Adjudicator had acted irrationally and/or in a procedurally unfair manner by relying on speculations and conjecture about the criminal law and procedure in India to draw such a conclusion unsupported by reliable evidence.

23.  However, as evidenced in the decision ([49] – [53], the Adjudicator did allow the Applicants’ lawyer to make proper submissions regarding the issue, and was able to distinguish that case referred to in the BBC report from the case of the Applicant based on different facts and circumstances, I am not satisfied that there the Adjudicator had erred in the exercise of his discretion to draw a distinction between the two cases, but the fact is that the Adjudicator rejected the Applicants’ claims on their credibility as to their account of events regarding A1’s having witnessed the rape that led to threats from RS as not credible or true, and hence this complaint of the Applicants even if found to be reasonable arguable would not in my view assist or advance their case to challenge the Board’s decision.

24.  As such, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

25.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

26.  In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on their credibility for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 97 of its decision with the benefit of hearing A1 and A2 in their oral evidence and answers to questions raised of their claim as well as submissions made on their behalves by their lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

27.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from RS and his followers in the Applicants’ claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision also agreed and confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

28.  In the premises, and 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 Applicants’ claims.

29.  I should also note that both A3 and A4 are now over the age of 18 in their leave application before me and hence the requirement for legal representation under Order 80 rule 2 of the Rules of the High Court no longer applies in their case, and that in their appeal before the Board when they were both still minors at the age of 15 and 12 respectively, they did in fact have legal representation from DLS, and were represented by a lawyer in their appeal hearing before the Board. As such, I do not find any matters that may support their potential minor-specific non-refoulement bases which had not been advanced to the Board in their appeal hearing by their lawyer, which is the proper approach in claims of minor children even if based on the same set of primary facts of their parents and which should be considered separately, as held by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971.

30.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their 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