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HCAL 71/2017
[2018] HKCFI 86
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 71 of 2017
BETWEEN
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Mr. Lakhwinder Singh |
Applicant |
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And |
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Torture Claims Appeal Board |
Respondent |
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And |
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Director of Immigration |
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by the Honourable Mr. Justice Li:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
1. The applicant entered Hong Kong on 5 January 2014. He overstayed until 20 January 2014 when he surrendered to the Immigration Department. He lodged the torture claim on 3 March 2014. He was released on recognisance since 25 February 2014.
2. The basis of the applicant’s claim was that he would be harmed or killed by the family members of his girlfriend Balwinder Kaur (B) if he returned to India. B’s family disapproved the relationship. Her brothers Sunny and Kaka (S&K) were gangsters who had the support of the Congress Party.
3. The Director of Immigration (‘the Director’) dismissed his claim on 2 September 2015 and 31 October 2016. His appeal to the Torture Claims Appeals Board (TCAB) was dismissed on 26 January 2017. He filed an application for leave for judicial review on 10 March 2017 seeking leave to review the decision of TCAB.
Background
4. The applicant was born on 24 January 1990. He was brought up in Village Tanda, District Jammu, India. He was single. He had a brother and a sister. His parents were farmers.
5. In November 2012, he met B on his way home from Vaishano Devi. The villages they lived at were about 2 km away. He left his phone number to B. They kept in touch. In January 2013, he and B started the courtship.
6. One day in November 2013, their relationship was discovered by S&K. B was forcibly taken home. He was taken in a car to a remote place and assaulted. He managed to take a bus home. He only took some painkillers without consulting any doctor.
7. He and his father went to Miran Sahib Police Station to file a complaint. However, the police detained him. B’s father later came to the police station and assaulted him with a wooden stick. He was eventually released without any charge. He went to a village doctor who gave him some painkillers. It took him 4-5 days to recover.
8. S&K later went to his home and threatened his parents. They threatened to kill the applicant unless his parents send him away from home. He left for Delhi and waited there for 15 days. His father bought him an air ticket. His friend told him to go to Macau and then to Hong Kong for seeking protection. He left India through proper channel without any problem.
9. The Adjudicator rejected his claim on all applicable grounds. The reasons were as follows.
a. During the oral hearing, the applicant told the TCAB that B still wanted to marry him. S&K would therefore want to kill him even if he lived way from his home and stopped seeing B. Having considered the background of this case, the Adjudicator found this explanation unreliable as the obvious method to avoid S&K was to live elsewhere in India. There was no logical reason for him to come to Hong Kong.
b. There was no sever pain and suffering, physical or mental. There was no official involvement nor was the dispute instigated or acquiesced by the Indian government or authorities.
c. There was no real risk of serious harm in future given the low intensity of the injury he sustained during the incidents of assault.
d. There was no evidence of persecution due to race, religion or membership of a social group within any of the categories as defined under Article 33 of the Refugee Convention.
e. The Adjudicator had reviewed various COI. The Indian government took measures to fight corruption. The police were structured and could carry out their duties. There was a functioning judiciary and legal aid system. He concluded that there was reasonable state protection. There were reports showing that inter-caste and inter-religion marriages were legal.
f. The big cities such as Delhi, Mumbai, Kolkata and Chandifarh were reasonable relocation choices. The applicant was young and should be able to relocate in those cities.
g. The Adjudicator opined that B’s family members had no intention to kill the applicant so long as he did not date B. The Adjudicator did not accept that B’s family could have located the applicant in other big cities.
10. The applicant was invited to submit further evidence in support of the BOR 2 ground. The Director did not receive any further evidence. The Director dismissed this ground on the available evidence on 31 October 2016.
11. The Adjudicator had also considered this ground and considered it based on available evidence. He rejected this ground as there was no substantial risk to the applicant’s life.
Judicial Review
12. This court held a hearing on 18 August 2017. The applicant explained that B’s family members set fire to his house several months ago. They again threatened to kill him if returned to India. B’s father was a police officer who had framed him up for murder. There was no formal charge document only oral allegation from the police. B’s father would know his whereabouts even if he did not return to Jammu.
13. I agree with the Adjudicator that there was no logical reason for the applicant to leave India. He could have left his home village and relocate elsewhere. The alleged threats, recent or in the past, are not credible given the analysis above.
14. In my judgment, there is no public law ground for review. The Applicant’s application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 19th day of January 2018
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(Benjamin Chan)(Mr) |
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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 his 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/Handed to the Applicant/ the Applicant’s solicitors on 19-1-2018
Mr. Lakhwinder Singh
The Applicant, in person
Applicant’s ref. no: |
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Sent/Handed to the Respondent/ the Respondent’s solicitors / such interested parties as may be directed by the Court / the interested parties’ solicitors on 19-1-2018
Respondent: Torture Claims Appeal Board
Interested Party: Department of Justice on behalf of Director of Immigration
Respondent’s ref. no.:
Respondent:
USM 2231/15/9/84/IN459
Interested Party:
QA T/C 1167/15 (Formerly RBCZ 189/14)(T6I38) |
Form CALL-1
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