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HCAL 1897/2018
[2020] HKCFI 3034
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1897 OF 2018
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Lakhwinder Singh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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Director of Immigration
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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 left India on 12/8/2015. He came to Hong Kong illegally from China on 20/8/2015 by boat. He was arrested by the police. He lodged the non-refoulement claim on 22/8/2015 and was released on bail.
Background
2. The applicant was born on 8/5/1968 in Hassan, Pura khurd, Punjab, India. He attained class 10 level. He was married with three children. His family was in India. He was a farmer for about 20 years[1]. He had worked in Bahrain as a carpenter from 1999-2009.
3. About 2008, he and his family supported the Shiromani Akali Dal party (‘SAD’). They organized rallies and put up posters. In 2012, SAD was accused of election rigging although they won the election.
4. About 2012, he and his family changed allegiance to the Indian Congress party (‘INC’). He thought it was corruption free. Soon afterwards, he received threatening calls from Tejpal Singh [2] and SAD supporters. They wanted him to rejoin the SAD or else would kill him. He refused. Nothing happened until 2014.
5. One evening around 11pm in the winter of 2014, a group of SAD supporters came to his house. He was afraid they would kill him. He escaped from home and stayed at his sister’s house that night. He went twice to report to the police at Batala city. The police refused to take the report. He returned to his home village after 3 days. He continued farming. He was in fear and dared not go home. He spent the nights at the motor room on his farmland.
6. One month later, Tejpal Singh and SAD supporters came to the motor room. He narrowly escaped. He was not injured.
7. He decided to leave India. His friend introduced him to an agent who charged HK$ 25,000 for a trip to Hong Kong. He stayed at various friends and relatives houses for 5-6 months while raising the fund.
8. He left India by air for Guangzhou in August 2015. He stayed there for 10 days before sneaking into Hong Kong by boat.
9. After he left India, his family moved away from the village. SAD supporters used to come to his house and threatened his family to join SAD.
10. He could not move to other cities such as New Delhi and Mumbai. Tejpal Singh and SAD supporters had connections throughout the whole India. They could locate him in New Delhi and Mumbai. He had no confidence in the police and other authorities as all of them were corrupt. He could not afford a bribe. [3]
The decision of the Director
11. The Director found that the future risk of harm upon returned to India was unlikely to materialize. The main reasons were: [4]
(a) In 2012 after he changed to support INC, he and his family were not harmed despite there were several encounters with the SAD supporters.
(b) During that time, he returned to his land and continued farming. Tejpal Singh and SAD supporters did not injure him.
(c) When the applicant stayed with his sister in village Ballewal and friends in New Delhi, Tejpal Singh and SAD supporters could not locate him. This showed that SAD influence was localized. There was no evidence that the SAD party had targeted him. It was not reasonable for them to deploy resources to locate him all over India.
(d) The conduct of the police officers at Batala City did not represent the stance of the Indian government.
(e) There was no evidence of State involvement, instigation or acquiescence. It was his bare assertion that Tejpal Singh and SAD supporters had influence over public authorities in India.
(f) The applicant could leave India through immigration channels. He was not targeted.
12. The Director had considered various COI. While there were serious corruption and incompetent police force, there were on-going reforms to tackle incompetence of the police. A person might take his case to the Superintendent of Police or a Magistrate if an officer refused to take a report. Special channels were established to tackle corruption (Central Vigilance Commission) and to tackle police misconduct (Police Complaints Authorities). The Director was satisfied that the authorities carried out their duties properly and enforced the law. There was reasonable State protection. [5]
13. The law allowed freedom of internal movement. India was a large country with a huge population. There were reasonable options for relocation, e.g., New Dehli and Mumbai. It would be difficult for the SAD supporters to locate him. It was not unduly harsh for the applicant to relocate.[6]
14. For the claim under BOR 3, the Director found that the applicant did not suffer injuries amounting to ‘a minimum level of severity’. There was no personal and real risk of ill-treatment if he returned to India. The BOR 3 claim failed.[7]
15. For the claim under BOR 2, there was no evidence of arbitrary deprivation of life. This claim failed.[8]
16. For persecution risk, the risk of ill-treatment was low. There was reasonable State protection and viable option for relocation. This basis of claim failed.[9]
17. For torture risk, there was no substantial ground to believe that the applicant would be subject to torture as defined by s.37U (1) of the Immigration Ordinance. There was reasonable State protection. There was no evidence of official involvement, acquiescence or instigation. The applicant was able to travel freely through immigration channels. He was not targeted by the Indian government.[10]
18. The Director reject all claims on 13/3/2018.
The decision of TCAB
19. The adjudicator held a hearing on 16/7/2018. The adjudicator found that the applicant fabricated his claims to extend his stay in Hong Kong. There were significant doubts in his evidence as follows:[11]
(a) The applicant declined to give evidence about the policies and claims of SAD albeit that he had supported the party from 2005 to 2012. He did not have much knowledge about SAD. He refused at times to answer questions about SAD.
(b) There was no evidence that he could get more votes for SAD—the main reason that Tejpal Singh and the SAD supporters wanted him to rejoin in 2012. Given his superficial knowledge in SAD, Tejpal Singh would not have interest in him.
(c) The applicant was unable to tell the adjudicator the reason for transferring allegiance to INC. However, in the NCF, he claimed to believe in the policies of the party and that it was corruption free. The adjudicator was not convinced that he supported INC.
(d) There were two incidents of alleged attack at night. He told the adjudicator that his mother told him they were SAD supporters before he escaped. In the NCF, he said the noise was so loud that they must be SAD supporters.
(e) In his NCF, he claimed to have visited the police station twice trying to report the first attack. Once with his brother-in-law and 3 neighbours. However, he told the adjudicator that he went only once with his brother-in-law.
20. The applicant claimed that he was not feeling well after an hour into the hearing. He did not submit any medical evidence before, during or after the hearing. The adjudicator was satisfied that the applicant was not too sick during the hearing.
21. Having considered the evidence of the applicant, the adjudicator rejected his story in total. There was no real risk of any harm should he return to India. [12]
22. Having found that the applicant was not truthful, the adjudicator was not satisfied that the applicant would be in danger of torture as defined under s. 37U of the Immigration Ordinance. Torture claim failed.[13]
23. There was no evidence that the applicant would suffer torture or CIDTP upon returning to India. The adjudicator rejected his claim that he was threatened by Tejpal Singh and his SAD supporters. BOR 3 failed.[14]
24. Similarly, there was no substantial grounds for believing that there was real risk of arbitrary deprivation of life in India. BOR 2 failed.[15]
25. The adjudicator rejected the evidence of the applicant. There was no well-founded fear that the applicant would be persecuted for any reasons as set out in the Refugee Convention. [16]
26. The adjudicator rejected the appeal on 20/8/2018.
Judicial review
27. The applicant applied for leave for judicial review on 11/9/2018. In his supporting affirmation, he pointed out that he was not safe in his home country. He wanted to stay in Hong Kong until the problem was resolved.
28. 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 duties of the TCAB and the Director. In general, this court would not interfere.
29. An oral hearing was held on 17/11/2020 on the request of the applicant. He reiterated that he would face danger from the opposite side (SAD). The situation would be the same. He had nothing further to add.
30. The applicant had not pointed out any specific error in the decisions of the TCAB and the Director.
31. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
32. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 4th day of December 2020
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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 4 December 2020
Lakhwinder Singh
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 4 December 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10901/18/3/353/IN2100
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 293/18 (formerly RBCZ/12972/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 1985-1999, 2009-2015, Director’s decision, §6.2.
[2] He was allegedly the general secretary of SAD in the applicant’s village.
[3] Director’s decision, §§6.4-6.18.
[4] Director’s decision, §§11-18.
[5] Director’s decision, §§19-22.
[6] Director’s decision, §§23-26.
[7] Director’s decision, §§27-29.
[8] Director’s decision, §§30-31.
[9] Director’s decision, §§33-37.
[10] Director’s decision, §§38-40.
[11] TCAB’s decision, §§66-101.
[12] TCAB’s decision, §§96-99.
[13] TCAB’s decision, §§102-108.
[14] TCAB’s decision, §§109-113.
[15] TCAB’s decision, §§114-118.
[16] TCAB’s decision, §§119-123.
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