JASSAL TAJINDER KUMAR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 303/2018

[2020] HKCFI 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 303 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The Applicants are respectively a married couple and their two children all of Indian nationality who arrived in Hong Kong on 14 August 2016 with permission to remain as visitors up to 28 August 2016 when they did not depart, and instead overstayed and surrendered to the Immigration Department on 30 August 2016 when they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the 2^nd Applicant’s family who were opposed to their marriage.  They were subsequently released on recognizance pending the determination of their claim.

2.  The 1^st Applicant (“A1”) was born and raised in Village Khajurla, District Kapurthala, Punjab, India as the Scheduled Caste which was considered as a low and disadvantaged class of the population.  After leaving school he worked as a driver, and in 2004 he started dating the 2^nd Applicant (“A2”) from neighbouring Village Kot Kalan, District Jalandhar,Punjab who was born to the highest caste the Jatt Sikh Caste and came from a wealthy family where her father owned a large farmland with many farmers working for him.

3.  Due to their different castes they kept their relationship a secret to A2’s family, but on one occasion in late 2005 when they were seen intimately together by A2’s father, and upon discovering A1’s background, A2’s family insisted that they ceased their relationship and punished A2 by beating her so badly that she was later brought to the hospital for medical treatments.

4.  Realizing that their relationship would never be approved by A2’s family, they eloped to New Delhi in November 2005 and secretly married there, and then moved to stayin Garh Shankar.  Later when they received telephone calls from A2’s family threatening tokill both of them for marrying against their wish, the couple went to the police for help, but when the police failed to take any action, they petitioned to the High Court of Punjab for protection and for an injunction to restrain A2’s family from harassing and threatening them.

5.  They then moved to New Delhi in January 2006, and in March 2006 the High Court granted their petition and directed that A2’s family to cease their threats and harassments. However, later in November 2006 when the couple heard that A2’s family had discovered where they were and had sent men to New Delhi to look for them, they then fled to Baldev Nagar in the State of Uttar Pradesh where they remained without further incidents for the next 10 years, during which A2 had given birth to their children, the 3^rd and 4^th Applicants (“A3” and “A4” respectively).

6.  However, in March 2016 they were told by their neighbors that A2’s brother was seen in the area, and became concerned that they may have been located by A2’s family,they therefore moved their home to Dhugdi, Jalandhar City in April 2016.

7.  Shortly thereafter one day when A1 was driving his family to the local market, they were struck from behind by another vehicle, and when they saw that it was A2’s brother in that vehicle, they sped away and managed to make their escape, but believing that they had been located by A2’s family and that it was no longer safe to remain in India,they departed on 13 August 2016 for Hong Kong, where they overstayed and subsequently surrendered to the Immigration Department and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form on 4January 2017 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 8 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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 (“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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A2’s family to the Applicantsupon their return to India as low due to the low intensity and frequency of past ill-treatment from them, that these were private family disputes without any official involvement that state or police protection would be available to the Applicants if resorted to and for which they have already obtained a court order from the High Court of Punjab, 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 acrossa vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with his family to other part of India away from their home district in large cities such as Mumbai where it would be difficult if not impossible for A2’s family to locate them.

10.  On 20 February 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which A1 and A2 attended an oral hearing on 5 January 2018 before the Board during which they gave evidence and answered questions put to them by the adjudicator for the Board.  On 15 February 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicants’ case of being harassed and threatened by A2’s family who disapproved of their marriage, but found that since their petition had been granted by the High Court of Punjab and with state and police protection being directed for them, that they as a result had lived in Baldev Nagar for more than 10years without further incidents except for the traffic incident in April 2016 when there was no other independent evidence that A2’s family was involved or that they were still going after them, and with reasonable internal relocation available within India in places away from their home district in large cities such as Mumbai where the Applicants can safely move to without any real risk of being located by A2’s family that their claim for non-refoulement protection failed on all applicable grounds.

12.  On 27 February 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

     (1)     that the Director and the Board failed to take their case into account seriously despite the documentary evidence produced by them as proof of the threats from A2’s parents and family;

     (2)     that the Director was wrong to find that A2’s brother had no intention of harming them on the basis of the evidence available; and

     (3)     that the Board failed to take proper or sufficient account of the relevant COI in its assessment of the risk of harm in their case.  

13.  As the Court of Appeal has held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director is not susceptible to judicial review once a non-refoulement claim has pursued an appeal to the Board, as did the Applicants in the present case, I shall therefore focus only on their intended challenge of the Board’s decision in their present application.

14.  For the Applicants’ complaint under Ground (1) that the Board failed to take their case seriously despite the documentary evidence available clearly show threats and harassments from A2’s family, I do not find any basis or merit in it, as it is clear that the Board did take into consideration the relevant materials before it including the court documents granting them protection from A2’s family which the Board referred to in [35] – [36], and again in [123] of its decision, and given the fact that even on their own case that they had since the court’s decision been able to live in peace for more than 10 years until the traffic incident in April 2016, of which the Board found that there was insufficient evidence that it was an attempt by A2’s family to harm them, and in my view the Board was in the circumstances and on the evidence before it entitled to conclude that with state protection and internal relocation available that the Applicants failed to establishtheir claim for non-refoulement protection.  As suchI do not find this ground of the Applicants reasonably arguable.

15.  As for the Applicants’ complaint under Ground (2) that it was wrong to find that A2’s brother had no intention of harming the Applicants in that traffic incident in April 2016, whilst it was made against the Director, as the Board also arrived at similar conclusion,I shall therefore deal with it accordingly in respect of the Board’s decision, in which it first recorded the Applicants’ evidence on this incident as follows:

“ 51. In March 2016, when some neighbours told A1 that they saw A2’s brother, Sarbjit Singh (‘S’), whom they recognize from family photos shown to them, was seen in the area. A1 and A2 decided to move to City Jalandhar in April 2006, living at Dhugdi Road.

52. One late afternoon in April 2016, when A1 was driving the whole family to the market, A2’s brother, S, gave chase in a car, hitting A1’s car deliberately, while shouting to A1 to stop his car. A1 believed that S wanted to kill them. A1 sped away and they managed to escape.

53.     The whole family attended the Kalayan Hospital for treatment to injuries sustained in the traffic incident …”

16.  It was against such evidence that the Board proceeded to find that “the traffic incident arose out of a chance meeting” with A2’s brother, as the Applicants “produced no evidence that (he) was there on the lookout for them”: [114].

17.  Given the undisputed factual background of the animosity of A2’s family towards the Applicants and that their threats still persisted after the court order, I agree with the Applicants that there was no basis for the Board to find that it was just a chance meeting when the Applicants’ car was severely struck from behind by A2’s brother causing injuries to all four of them, with those sustained by A2 and A3 being described as serious ([55], [56]).In the circumstances this finding of the Board does seem to me irrational.

18.  However, that being the case, and even if the Board were to find otherwise regarding that traffic incident, the fact that it did go on to find, and in my judgment correctly for the reasons given in paragraphs 189 – 197 of its decision, that the risk of harm in the Applicants’case was a localized one and that it was not unreasonable for them to relocate to other part of India, the outcome would have been the same with no justification to afford the Applicantswith non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.  As for their complaint under Ground (3) over the Board’s insufficient or improper reliance of relevant COI in assessing the risk of harm faced by them upon their return to India, the Applicants did not provide any particulars or specifics or elaborations as to how it was so, and having examined those COI which the Board did take into account in paragraphs 128 – 134 of the decision, and given the nature of the risk of harm in the Applicants’ case being localized, and for the same reason as above,I do not find this ground of the Applicants reasonably arguable for their intended challenge either.

20.  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’ claim.

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