GURNISHAN SINGH v. DIRECTOR OF IMMIGRATION

HCAL 240/2015

[2018] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 of 2015

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 refused.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of India who first came to Hong Kong in July 2008 as a visitor and subsequently overstayed until he was arrested by the police on 6 August 2008 and later lodged a torture claim with the Immigration Department but which he withdrew on 16 July 2013 and was then removed back to India on 16 August 2013.  He then tried to enter Hong Kong again on 17 August 2015, and when he was refused permission to land and while pending repatriation to India he lodged a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by certain members of rival political party Shiromani Akali Dal (“SAD”).  

2.  The applicant was born and raised in Village Sur Singh, Punjab, India to a family of supporters of the Indian Congress Party (“INC”).  After leaving school he worked as a farmer and also became an INC supporter participating in their elections rallies and putting up posters for the party.

3.  In 2008 he came to Hong Kong and lodged a torture claim and also sought assistance from the United Nations High Commissioner for Refugees due to a land dispute in India, but in 2013 he withdrew his torture claim and returned to India.

4.  In 2014 during the General Election in Punjab, the applicant assisted in the election campaign of his INC leader but eventually the candidates of SAD won the election.  About a week after the election the applicant was approached by one of SAD leaders HM who had just won the election for the Legislative Assembly and who was impressed by his work for INC and invited him to join SAD, but when the applicant refused HM and his men were upset and made threats against him before they left.

5.  About a week later HM and his men came to the applicant’s home and again demanded him to join their party, and when the applicant refused they pushed him around and threatened to kill him before they left, of which the applicant later reported to the police who said they would look into it.

6.  After learning about the applicant’s report to the police, HM and his men came to the applicant’s home again and started shooting their guns into the air and vandalizing his home with threats to kill him if he did not leave the village.  Fearing for his life the applicant then took shelter at his sister’s home in Ajnala, Punjab.  However, one night when he was walking outside his sister’s house, he was surrounded by HM and his men who claimed they had come to kill him, but the applicant was able to escape and hid until they left.  Upon his return to his sister’s home, he was advised by his sister to leave India for his own safety, and so he departed on 16 August 2015 for Hong Kong and lodged his non-refoulement claim, and for which he later completed his Non-refoulement Claim Form on 29 September 2015 with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 16 November 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 (“HKBOR”), 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”).

8.  In his decision the Director found no real reason for HM and his SAD people to harm the applicant upon his return to India given that he was merely a supporter of INC with no official position in the party and that it is doubtful that they would still have any adverse interest in him after all these years, that there is no evidence to suggest any involvement of the state or the police in HM’s threats against the applicant that state protection would be available to him if resorted to, and that 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 harsh for the applicant as an able-bodied adult with working experience to move to areas away from his home district such as West Bengal which has a different ruling party that the applicant can safely live and work without any threats from HM or his people.  

9.  On 4 December 2015 the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Director, and in it he put forward three grounds for his intended challenge which can be summarized as follows:

(1)  that the Director’s decision is unfair and unlawful for failing to place sufficient weight in his evidence of the police’s inability to help him and in the relevant COI in assessing the effectiveness of state protection in India; 

(2)  that the Director failed to consider the presence of state acquiescence in his case and the concept of extended state acquiescence to the actions of non-state officials, or the existing gross and mass violation of human rights within the state of India; and

(3)  that the Director failed to apply high standards of fairness in considering his claim.

10.  These are all broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case or how the Director had erred in his decision, or in what way is state acquiescence or the concept of extended state acquiescence relevant to his case.

11.  As held by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, if the risk of persecution or torture is a localized one, and it is not unreasonable or unsafe for the claimant to relocate to another part of the country in question, there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT, and that there may be many reasons why the risk of torture is a localized one, such as where the torturer is not the state or a “state agent”, he may not be prepared, willing or able to pursue the claimant outside of the local place in question or to the internal relocation alternatives concerned, or that meaningful state protection against the risk of torture is available to the claimant outside of the local place in question or in the internal relocation alternatives where the risk of torture is non-existent or insubstantial, and if the risk of torture is for one reason or another a localized one, one is then to ask whether it is reasonable to expect the torture claimant to relocate to the alternative place or any of the alternative place under consideration or whether it would be unduly harsh to expect him to do so: per Cheung CJHC at paragraphs 32 – 33 of his judgment.

12.  Here the Director having found no substantial grounds to believe that any threats or acts against the applicant by HM and his SAD people were inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity, then went on to assess from reliable and objective COI that internal relocation alternatives are available and reasonable to the applicant as he explained in his decision as follows:

“ 26. You had reservation on the option of internal relocation in India as you believed that the current ruling party of India is BJP which is alleged to have alliance with SAD. You could be easily located by them as SAD or BJP has wide network through India.

27. According to the results of General Election 2014, out of 28 state and 7 union territories that made up of India, SAD is only a regional state party and it got only 4 seats in Punjab and no seat in other parts of India. There are many options for you to relocate to other states in India such as West Bengal where All India Trinamool Congress (‘AITC’) was the ruling party in this state. Further, as revealed by the World Facebook of US Intelligence Agency (Item 6 of Appendix), India has a population of more than 1.2 billion and a land area of more than 2.9 million square kilometers. It would be very difficult for HM or his SAD people to locate you among such a large population and in such a large country. According to you, HM and his people did not know your sister’s address and hence you could stay safely at her place. It appears that HM was not as influential and powerful as you so claimed.

28. Furthermore, it is noted that internal relocation is permissible under Indian Law.  According to section 2d of the India 2014 Human Rights Report (Item 7 of Appendix), ‘The law provides for freedom of internal movement, foreign travel, emigration and repatriation, and the government generally respected these rights.’  You had stayed in Ajnala with your sister for around 7 to 8 months and with your cousin in Amritsar for around 3 months.  Being an able-bodied adult of 29 years old with almost 13 years working experience as a farmer, it is not considered unduly harsh for you to relocate to other areas in India.”

13.  Even putting aside the unlikelihood of HM or his SAD people still having any adverse interest in the applicant given his insignificant role in INC, the Director rightly found that the threats from HM or his SAD people was a localized one in Punjab, and that it is not unreasonable or unsafe for the applicant to relocate to another part of India, there is therefore in my judgment clearly no justification for affording the applicant refoulement protection, and accordingly I do find any merit or basis in any of the grounds of the applicant.

14.  In the premises and having proceeded to consider the Director’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in his decision, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.

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