BITTU SINGH v. DIRECTOR OF IMMIGRATION

HCAL 201/2017

[2018] HKCFI 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 201 of 2017

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 Applicant:

1.  The applicant is a 33-year old Indian man who came to Hong Kong on 8 May 2014 with permission to stay as a visitor until 22 May 2014, but he overstayed and eventually on 31 May 2014 surrendered to the police.  On 1 June 2014 he was referred to the Immigration for investigation, and on 2 June 2014 he raised a non-refoulement claim on the basis that if he is to return to India he would be harmed or killed by his girlfriend’s father and family who are against their relationship.

2.  The applicant was born and raised in Chotiyan Kalan, Moga, Punjab, India from aSikh family and where his parents and three siblings still live.  After receiving seven yearsof formal education he ran a welding shop together with a partner from 2009 to 2013, also helping out in his father’s farming.  He is single and has no children, and whilst he and his family supported the Indian National Congress Party and had voted for them during elections, he had no other involvement in politics.

3.  In about 2008 the applicant started dating a girl VK from a Jatt family in the neighboring village where her father was and still is the village head and an influential member of Shiromani Akali Dal, the ruling party of Punjab.  In India the Jatts are considered to be in a higher social and caste status than the Sikhs.

4.  One day in late 2012 after visiting VK in Moga city where she went to school, the applicant was confronted by her two brothers with other men who demanded that he stopped seeing VK as he being a Sikh was considered not good enough for her, and threatened to kill him if he did not do as they said.

5.  After that incident the applicant stopped seeing VK for five or six months, but in about mid-2013 they resumed their relationship and one day in July or August 2013 when they were seen together in a restaurant, VK’s mother rushed in to snatch her away, and on the following day the applicant was again confronted by one of VK’s brothers who with other men went on to assault him on the street before he was able to get away with the assistance of some passers-by.

6.  On the following day the applicant reported the assault to the Moga police, but as soon as they learnt that VK’s family was involved, they told him that there was nothing further they could do, and as a result the applicant was advised by his family to take shelter at his maternal grandparents’ place in Firozpur District which is some 25 km from Moga City.

7.  After staying away for four or five months in Firozpur District the applicant returned to his home in late 2013, and in early 2014 he started seeing VK again secretly insome neighboring village away from his home, but one morning after such a rendezvous the father and two brothers of VK with some other men armed with a rifle and some hockey sticks and wooden clubs came to his home, dragged him out into the street and started beating him with clubs and sticks in front of his family for 10 to 15 minutes until he was rescued by one of the villagers on his motorcycle to hide some 90 km away in Ludhiana where he received treatments from a herbal doctor for injuries all over his body.

8.  For several days after the attack VK’s father and brothers continued to look for the applicant and threatened to kill him on sight.  Feared for his future safety, the applicant decided to leave India, and with help from his parents and friend he left India on 24 April 2014 first for Bangkok, then to Macau and eventually on 8 May 2014 arrived in Hong Kong where he subsequently launched his non-refoulement claim. 

9.  By a Notice of Decision dated 24 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

10.  In his detailed decision the Director upon carefully considering the evidence provided by the applicant found that his fear stemmed from the personal grudge from VK’s family because they were against their relationship which has nothing to do with politics or the state, hence the risk of him being harm was assessed as low as long as he stayed away from VK or her family, and that objective COI reports show that reasonable state protection is available in India and that internal relocation alternatives are available and reasonable for the applicant to return to live and work safely in other parts of India, as it was pointed out in paragraph 21(5) of his decision:

“ … Being a 32-year-old able-bodied adult with basic formal education background as well as business and farming experience, it is neither unduly harsh nor unreasonable for you to relocate to other areas in India, for example, Ludhiana. Delhi was about 300 km away from your home in Moga. Referring to CIA’s World Facebook (item 8 of Appendix), Delhi had an estimated population of around 25.7 million people in 2015. Given its high population, it would be hard, if not impossible, for VK’s family to search for you there if they really intend to do so.”

11.  By a Notice of Further Decision dated 26 January 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional facts relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute and non-derogable rights under the Hong Kong Bill of Rights including right to life under Article 2 (“BOR 2 risk”). 

12.  By then the applicant was already in the process of appealing against the Director’searlier decision to the Torture Claims Appeal Board (“the Board”) which he filed on 6 July 2016, and for which he attended in person before the Board on 28 February 2017 during which he gave evidence and answered questions put to him by the Board.  On 7 April 2017his appeal was dismissed by the Board which also confirmed the decisions of the Director. 

13.  In its decision the Board similarly found that it was a personal affair between the applicant and VK’s family and assessed little risk in him being harm if he is to return to live in other parts of India as it also did not accept that her family would be interested in locating him all over the country, especially if he is to take the common sense approach bystaying away from Moga or not seeing VK anymore.  I do not see anything wrong with theBoard taking such an approach in its assessment and determination of the applicant’s claim.  

14.  Nevertheless the applicant filed his Form 86 on 11 May 2017 for leave to apply for judicial review of the Board’s decision, which is the matter now before me, but from his supporting affirmation of the same date it is not clear exactly what are the grounds upon which he proposes to rely on for his intended challenge against the Board’s decision, as he merely stated:

“ I am here to apply for a leave to apply for judicial review. As Country of Origin Information (COI) report issued by UK Home Office was mentioned, it says it all in there. I do have a torture risk back in India due to my race. BOR 3 risk also applies in my case as well as BOR 2 risk, i.e. risk to my life. I hereby apply for leave to judicial review against the decision of the tortureclaims appeal board dated 7 April 2017 (Ex 1), and the immigration officer’sdecision dated 24 June 2016 (Ex 2) refusing my claim for non-refoulement protection claim.”

15.  Whilst it is not entirely clear which COI report issued by UK Home Office referred to by the applicant above which he said would go to support his claim that he does have a torture risk as well as both BOR 2 and BOR 3 risks if he is to return to India, but the Director did in paragraph 20 of his decision refer quite comprehensively to several COI reports issued by UK Home Office, starting with one which the Director accepted that may corroborate the applicant’s assertion on political influence on as well as corruption and incompetence of Indian police as follows:

“ i. According to the Human Rights Law Network (HRLN) report of August 2009, ‘Almost all state police commissions and the National Police Commissions have found misuse by politicians for partisan ends. Police officers feel compelled to comply with illegitimate political directives because they know that disobedience might lead to their transfer to a different post. The police are generally heavily dependent on the executive for appointments, disciplinary measures, salaries, tenure, physical conditions, residency transfers, and the like. Thus, not only is the police force politicized, but it adopts the positions of those currently in power to the detriment of political minorities, poor persons, scheduled castes and tribes,and the generally disempowered.’ The above is quoted from paragraph 9.10 on p. 39 of the ‘India Country of Origin Information (COI) Report’ issued by the UK Home Office on 30 March 2012 (item 1 of Appendix).”

16.  The Director then went on to also consider other COI reports which shows that reasonable state protection is available in India and that the country is striving against corruption with alternative avenues to seek justice in the country, including the following one issued by the UK Home Office:

“ iv. In its ‘Country Information and Guidance—India: Background information, including actors of protection, and internal relocation’ (item 3 of Appendix), UK Home Office stated in paragraph 2.7.10 on p. 15 that ‘State police forces are structured and regulated by the Police Act of 1861, or by state statutes that are modified after the 1861 Act. This Act also sets out the duties to be discharged by police officers.’ Together with paragraph 20(4)(i), it shows that a well established police system is in place in India.

v. Referring to paragraph 2.7.27 on p. 20 of the above report of UK Home Office (item 3 of Appendix), ‘A victim of police misconduct can also make a report to the National Human Rights Commission (NHRC).’ ‘In addition to the NHRC, 23 states and union territories have Human Rights Commissions with remits in those particular states.’

vi. UK Home Office also stated in paragraph 2.10.4 on p. 29 and 30 ofthe above report (item 3 of Appendix) that ‘In December 2013, Parliament passed the Lokpal and Lokayuktas Bill, establishing an ombudsman organization (the Lokpal) to investigate allegations of government corruption.  The Bill was first tabled in parliament in December 2011 following massive public protests against official corruption.  The Lokpal has the power to investigate alleged offences by any public servant, including government employees, judges, MPs, Ministers, and the Prime Minister.  Victimizing a whistleblower or witness has become an offence.  Following an investigation, the Lokpal can initiate prosecution in a Special court formed under the Prevention of Corruption Act, 1988.  The Lokpal and Lokayuktas Act, 2013 entered into force on 1 January 2014.’  The above clearly demonstrates the dedication of the Indian government to combat against corruption.”

17.  In paragraph 21 of his decision, the Director also took into consideration of, inter alia, the same report of the UK Home Office to arrive at his assessment that internal relocation alternatives are available and reasonable in the applicant’s case:

“ (3) In its ‘Country Information and Guidance—India: Background information, including actors of protection, and internal relocation’ published in February 2015 (item 3 of Appendix), UK Home Office stated on p. 5 in paragraph 1.2.8 that ‘In the Country Guidance case of MD India CG [2014] UKUT 00065 (IAC) (12 February 2014), the Upper Tribunal, when considering whether a same sex orientated male who may be at risk of harm from his family could be expected to relocate, held that ‘India is a country of 1.2 billion people and we have not been drawn to any evidence that there is a central registration system in place which would enable the police to check the whereabouts of inhabitants in their own state, let alone in any of the other states or unions within the country. We consider the possibility of the police, or any other person or body, being able to locate, at the behest of an individual’s family, a person who has fled to another state or union in India, to be remote.’ In other words, even the Indian police would find it difficult to locate someone who had internally relocated to a different area within India. Moreover, as assessed in paragraph 19, there is nothing to show that VK’s family is resourceful enough and has the intention to search for you throughout your country.”

18.  As for both BOR 3 risk and BOR 2 risk, it is clear that the Director did also carefully consider and assess the applicant’s claim and was perfectly entitled to find that he has failed to establish that he would face a genuine and substantial risk within the definition of either BOR 3 or BOR 2.

19.  Similarly it is clear to me that the Board has also relied on its objective COI reports listed and set out in its decision in reaching its conclusion that the applicant has failed to establish a case of non-refoulement whether under risks of torture or BOR 3 or BOR 2, and in the absence of any particulars or specifics from the applicant as to what error in law or procedural unfairness that the Board has made in its decision, neither do I see, in the light of the materials before me, any error of law or procedure in the proceedings before the Board, or any reasonably arguable basis for the applicant to challenge the fairness of the process.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his 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