SANDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3021/2018

[2021] HKCFI 2866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3021 of 2018

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 Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant sneaked into Hong Kong from China on 10/10/2015.[1]  He surrendered to the Immigration Department on 12/10/2015.  He filed the non-refoulement claim in this case on 6/10/2016. 

Background

2.  The applicant was born on 10/8/1982 in Punjab, India [2]. He received education for about 12 years.  He was single.  He was a driver (2001—2004) and a farmer in Italy (2004—2012).  His family was in India.  He and his family had not been arrested, charged or imprisoned.

3.  He fell in love with Raman (“R”) when he returned from Italy around 2008 for holidays.  She was a Christian and he was a Sikh.  Inter-religious marriage was a taboo in his village.  He thus kept the relationship secret.  He contacted “R” by phone when he was in Italy.

4.  In 2012, he returned to India for good.  By then, “R” had finished her studies.  They continued to see each other.  However, R’s cousin Sunny (“S”) found out their relationship.  “S” warned him to stop.  He knew “S” was associated with local gangsters.

5.  About 2 months later, “S” and his gang accidentally met him in a café.  “R” was also there.  “S” assaulted and threatened him.  “S” indicated that he had connection with an influential member of the “ADP” [3]. He recovered in 4 days by taking painkillers.

6.  Six months later, he met R’s father accidently on the road.  Her father warned him to stay away from “R”.  Meanwhile, his father also persuaded him to stop the relationship to avoid being evicted from the village.

7.  In May 2015, he was attacked by “S” and his gang in the vicinity of the village.  He sustained bruises all over his body.  He was treated by the village doctor.  He recovered in a week.  A few days later, “S” confronted him again outside his home.  “S” warned him to stop the relationship but he refused emphatically.

8.  He eventually took refuge in his aunt’s place at a different District.  He only received threats from “S” on the phone.  They did not come for him although they knew his whereabouts.

9.  On the advice of his mother, a friend arranged him to take a flight on 25/9/2015 to Guangzhou.  His mother paid the cost.  He was twice refused entry to Hong Kong from Shenzhen in September and October.  Subsequently, he paid another Indian who showed him the way to sneak into Hong Kong.

10.  He had maintained contact with his mother and “R”.  His mother told him not to return.  His mother was safe in India.  “R” told him that her family wanted to kill him.

11.  He did not think the police would help as R’s family had political connection.  He asserted that “S” would be able to locate him anywhere in India. The “ADP” could exert pressure on the authorities though it was not the ruling party.

The Decision of the Director

12.  The Director found that there was low risk of harm: [4]

(a)     The applicant was attacked by “S” and his gang twice.  He only sustained bruises and could recover in a few days.  The injuries did not amount to ‘a minimum level of severity’.  There was no evidence that he was mentally disturbed by the incidents.

(b)     The family of “R” had plenty of chances to cause severe injuries or even kill him.  They only threatened him to stop the relationship.  There was no intention to kill.

(c)     It was a private dispute.  There was no evidence that any government official was involved.  In fact, he could depart India without any difficulties.  He was not targeted.  He had never reported the matter to the police.  There was no breakdown of law and order in India.

(d)     The Director had considered relevant COI.  There were problems of corruption, ineffective police and abuse of power.  There were reports of violence and discrimination against inter-religious-marriage couples.  In recent years, there were continuous reforms with improvements.  The law protected minority rights.  An aggrieved party might take his case to a Superintendent or a Magistrate.  The law recognized and protected inter-religious marriages.  The NHRC [5] and the Ministry for Minority Affairs were responsible for dealing with religious discrimination.  There were ‘protection homes’ for victims.  The Director was satisfied that there was reasonable State protection.

(e)     The law in India allowed internal relocation.  India was a large country with a huge population of about 1,300 million.  The Director found that New Delhi and Madhya Pradesh were viable options for relocation.  It was not unduly harsh for the applicant to relocate given his experience.

13.  The Director rejected his claims on all grounds on 12/7/2017. [6]

The Decision of TCAB

14.  The adjudicator held an oral hearing on 10/9/2018.  The adjudicator found that there was no real risk of harm.  He rejected the appeal on 24/12/2018. The main reasons were:

(a)     The applicant told the adjudicator that the “ADP” was connected with “S”.  Without any detail, this assertion was flimsy.  “S” was not a member of “ADP”.  He was an “idle loafer”.  It was unreasonable that he could mobilise the “ADP” for a private matter.

(b)     There was no evidence to support the assertion that “S” would kill the applicant.  They had encountered several times which resulted in some assaults only.  The applicant could not explain why he described “S” as a person who could kill anyone with impunity.

(c)     Despite his assertion of the love affair, it was unconvincing that he knew very little about “R”.  He left “R” behind in India.  There was no future in their relationship.  He had stayed in Hong Kong for 3 years already.  Her attitude towards him was doubtful.  While he maintained contact with “R”, he could not even produce her phone number or her photograph to the adjudicator.  He explained that it used to be stored in his broken phone.

(d)     He explained that she was not allowed to have a mobile phone.  “R” used her father’s phone to contact him.  The adjudicator found this implausible.

(e)     He left “R” in India to come to Hong Kong.  He was separated from “R” for 3 years.  He could not rule out that “R” might have married.  He did not know how much affection remained in him towards “R”.

15.  Given the evidence above, the adjudicator found there was no real risk of harm.  He dismissed the appeal on all grounds on 24/12/2018. [7]

Judicial Review

16.  The applicant filed the leave application on 31/12/2018. In his affirmation, he had not pointed out any error in the TCAB decision.

17.  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 duty of the TCAB.  In general, this court would not interfere.

18.  The adjudicator rejected the evidence of the applicant.  He had grave doubt as to the current state of his relationship with “R”.  He also doubted the assertion on the role of “S” and his connection with the “ADP”.  I agree with his analysis.  

19.  In my judgment, there is no error of law or procedure.  The TCAB decision is reasonable.

CONCLUSION

20.  The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

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