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HCAL 2966/2018
[2021] HKCFI 86
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2966 of 2018
BETWEEN
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Virender Kumar |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong on 16/6/2014 using a valid passport. He was allowed to stay until 30/6/2014. He overstayed and was arrested on 3/7/2014. He filed the non-refoulement claim on 5/7/2014. He was released on bail on 8/8/2014.
Background
2. The applicant was born on 25/12/1982 in Ismailabad, Kurukshetra, Haryana, India. He was educated up to Form 4. He was married with two children. His family was in India. He used to be a newspaper distributor and a worker.
3. Around March 2013, he set up a poultry farm with three partners. He borrowed 500,000 rupees[1] at a monthly interest rate of 2% from a creditor. The creditor was a member of the ruling party, Bharatiya Janata Party (“BJP”). He was wealthy and influential.
4. About April 2014, all poultry in his farm died of bird flu. He failed to pay the interest. One day in April, the creditor took him to the village court to settle the debt. He indicated that he could not repay before the village head. The creditor threatened to kill him. Several hours later, the creditor came to his home with several men. The creditor carried a rifle. He hid himself at home. The creditor threatened, through his wife, to kill him if he did not repay next time. They did not hurt his family.
5. In May 2014, he took refuge at a relative’s home in New Delhi. His wife told him that the creditor came several times. The creditor threatened to kill if he could not repay. Nothing happened in New Delhi until he left for Hong Kong in June 2014. His family also moved to his in-laws in Panipat.
6. Recently in January 2018, his wife told him that the creditor still came and demanded for repayment. He could not repay and wanted to stay in Hong Kong.
7. He did not report to the Indian police as he had no confidence that they would investigate. He did not think the complaint channels would be of any use as the creditor and BJP leaders were influential.[2]
The Decision of the Director
8. The Director noted some important aspects of his evidence and found that there was no ill-treatment which amounted to “a minimum level of severity”. The risk of harm was low:[3]
(a) The creditor and his men came to his house several times. They only verbally threatened him. They did not hurt him or his family. Nor was there any intention to kill demonstrated.
(b) There was no evidence that the BJP party had targeted him. It was inconceivable that the BJP would be involved in such a private matter.
(c) He could depart India without any difficulties.
(d) There was no evidence that any government official was involved. Nor was there any consent, instigation or acquiescence by any public official.
(e) The loan was a private dispute.
9. The Director had considered various COI. While there were serious corruption, human right violations and abuse of police power, there were reforms with positive results. There were complaint channels to a Magistrate if the police failed to take action. The National Human Right Commission was tasked to investigate violations with support of the law. There was an online system for lodging complaints which would be related to the relevant departments. Special channels were established to tackle corruption (Central Vigilance Commission). There was comprehensive anti-corruption law to tackle corruption. The Director was satisfied that there was reasonable State protection. There was no evidence that the government was unable or unwilling to enforce the law. [4]
10. The Director found that New Delhi and Mumbai were suitable alternatives for relocation. The law allowed internal relocation. India was a large and populated country. In fact, the applicant was safe in New Delhi before leaving for Hong Kong. It was not unduly harsh for the applicant to relocate.[5]
11. For the claim under BOR 2 and 3, there was no evidence that his life would be subject to arbitrary deprivation. The Director also found that the applicant did not suffer any injury amounted to ‘a minimum level of severity’. There was no genuine and substantial risk of ill-treatment if he returned to India. The BOR 2 & 3 claim failed.[6]
12. For persecution risk, the dispute was a private matter. It was not within any one of the reasons of persecution. There was State protection and reasonable alternative for relocation. There was no well-founded fear of persecution. This basis of claim failed.[7]
13. For torture risk, the applicant did not suffer any injury as defined under s. 37U (1) of the Immigration Ordinance. There was reasonable State protection. There was no evidence of official involvement, acquiescence or instigation. He chose not to report to the police. The applicant was able to travel freely. He was not a target of the Indian government.[8]
14. The Director rejected his claims on 23/3/2018.
The Decision of TCAB
15. The adjudicator did not hold any oral hearing. Having perused all the information before him, the adjudicator opined that there was nothing further which required clarification. There was no need of legal argument. There was no advantage holding an oral hearing.[9] The adjudicator rejected the appeal on 19/11/2018. The main reasons were as the following:
Persecution risk
(a) During the incident before the village head to settle the debt, the creditor never stopped the applicant from leaving. When the creditor and his men came to the applicant’s home, they did not hurt him and his family. There was only verbal threat.
(b) The creditor could not locate him in New Delhi. He had not suffered any physical injury.
(c) The applicant’s case did not concern any reason of persecution set out in the Refugee Convention. There was reasonable State protection. There was no State involvement. He could leave India freely. The applicant had not sought assistance from any Indian authority.
(d) There was no well-founded fear of persecution. The claim on persecution risk failed.
BOR 3
(e) The applicant did not sustain any serious injury. There was no evidence of any ill-treatment attaining a minimum level of severity. There was reasonable State protection. This ground failed.
BOR 2
(f) The adjudicator concluded that there was no evidence of arbitrary deprivation of life if the applicant returned to India. This ground failed.
Torture risk
(g) The applicant had not sustained any severe pain and suffering. There was no involvement of public officials. The applicant failed to establish that there was real and personal risk of torture as defined under article 3 of the Convention against Torture.
(h) The torture risk failed.
(i) The adjudicator accepted that New Delhi and Mumbai were reasonable options for relocation. It would not be unduly harsh for the applicant to relocate.
Judicial Review
16. The applicant applied for leave to apply for judicial review on 24 December 2018. In his supporting affirmation, he pointed out that he was in danger in his home country.
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 and the Director. In general, this court would not interfere.
18. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.
19. In my judgment, there is no error of law or procedure. The decisions are reasonable.
CONCLUSION
20. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 13th January 2021.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 13 January 2021
Virender Kumar
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 January 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10980/18/3/432/IN2122
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 759/18 (formerly RBCZ 3001553/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] About HK$ 62,500.
[2] Paragraphs 6-7.19, the decision of the Director.
[3] Paragraphs 12-14, the decision of the Director.
[4] Paragraphs 17-20, the decision of the Director.
[5] Paragraphs 21-26, the decision of the Director.
[6] Paragraphs 27-32, the decision of the Director.
[7] Paragraphs 33-37, the decision of the Director.
[8] Paragraphs 38-40, the decision of the Director.
[9] Paragraphs 17-21, the decision of the TCAB.
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