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HCAL 2954/2018
[2020] HKCFI 2962
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2954 of 2018
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Gurjant Singh |
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:
Background
1. The applicant was born on 25 January 1995 in District Tarn Taran, Punjab, India. He was educated up to class 5. He was a Sikh. He was a farmer on family land (2008-2014). His family supported the Indian National Congress Party (‘INC’). He put up posters and organized rallies during elections.
2. One day in January 2013, Shinder Singh (‘Shinder’) came to his home at village Natthupur with 6 men. They were members of Akali Dal Party (‘ADP’). Shinder asked him and his family to join ADP, he refused. The group left.
First Attack
3. On a day in January, Joginder Singh (‘Joginder’) of INC, who lost to Shinder in the village head election, held a meeting to discuss strategies for the next election. Joginder asked supporters to put up posters for INC. After that meeting, a group from Shinder attacked INC supporters with sticks. The applicant was injured at his arms and legs. He was given painkillers and dressing of the wounds at the village clinic. He recovered in a week. He did not report to the police. He believed it would not happen again.
4. He fled to Hong Kong in February 2013 but was refused entry. He returned to India.[1]
Second attack
5. One day in June 2013 during the election day of village head, there was an argument between INC and ADP supporters at a polling booth. He was assaulted by ADP supporters and injured his lower lip. He did not need any treatment. He went to report the incident at the Harike Police Station. The officers refused to take any action. He suspected that the police were influenced by Shinder. He also suspected that the ADP group had bribed the police.[2]
Third attack
6. In August 2013, Shinder and others approached him on his farmland. Shinder blamed him for supporting INC in the election. Shinder threatened to kill him. They assaulted him for about 4 minutes with punches and kicks. He injured his back and shoulders. He recovered in 10 days.[3]
7. In September 2013, he fled to Lome´, the capital city of Togo. He returned to India after 15 days as he suspected that there were ADP members in Lome´. He then attempted to go to Thailand but was refused entry. He returned to his home village.[4]
Fourth attack
8. In early 2014, he and his friend went to a rally for parliament election on a motorbike. Another ADP group attacked them with sticks. He and his friend were injured all over their bodies. He was admitted to a private hospital for 2 days and recovered in about 15 days.[5]
9. He subsequently hid at his cousin’s home for about a month at village Kotli. It was about 60 km from his home village. He returned to his home village later in April to cast vote.
Fifth attack
10. On the election day (’30 April 2014’), he had an argument with Shinder’s son on political views. Later that day, he was attached at home by a group of ADP supporters with small swords and sticks. He sustained cut wounds at his knee and forearm. His family was not attacked. The group threatened to kill him and framed him up with false charges. He was treated with dressing and painkillers. He reported to Harike Police Station with no avail. He suspected they were influenced by Shinder.[6]
11. The same night, he fled to village Kotli and stayed with his cousin until August 2014. He went to Delhi for 10 days. He finally arranged to come to Hong Kong. He paid $50,000 Rupees for the journey.[7]
12. He took a flight from India on 21 August 2014 to Hong Kong. He then took a ferry to China. He thought to enter Hong Kong from China later. It would be easier. He attempted to enter Hong Kong on 25 August 2014 [8] but was sent back to China. He made another attempt to enter Hong Kong on 15 September 2014 [9] and filed the non-refoulement claim. [10]
13. He would be in danger if returned to India as he refused to join ADP. The police would not help as they were influenced by ADP. He was not aware of complaint channels against corruption and police misconduct.[11] He could not relocate to other cities as Shinder could locate him easily.[12]
14. He was never arrested or imprisoned in India. He had encountered no problem entering and leaving India using his passport.
The Decision of the Director
15. The Director pointed out some discrepancies between the written representation and the NCF. The applicant had seemingly mixed up BJP and ADP. He explained that it was due to communication problems with his lawyer who spoke Hindi. [13]
16. The Director found that the risk of harm was low for the following main reasons:[14]
(a) There were 5 incidents of attack. The ADP group mainly used fists and kicks. Although sticks and allegedly small swords were used in some incidents, his injuries were not serious. They did not amount to “a minimum level of severity”.
(b) The applicant was not a leader or a member of INC, he was not in active participation in INC.
(c) Despite there were allegedly 5 attacks, there was no serious injuries. This indicated that the ADP group had no intention to kill him at all.
(d) The applicant was safe when he stayed at village Kotli and New Delhi. His family at home was not attacked.
17. The Director pointed out that there was no evidence of bribe, it was only the applicant’s suspicion. The misconduct of officers at the Harike Police Station could not be used to hold against the Indian Police in general. There was no evidence that the Indian government would condone or acquiesce the attacks and the police misconduct.[15]
18. The Director had considered various COI. While there were serious corruption, human right violations and biased police actions, there were on-going reforms with positive results. There was a functioning judiciary and legal aid system. Special channels were established to tackle corruption (Central Vigilance Commission) and to tackle police misconduct (Punjab Police Helpline). There was also an Ombudsman office. The Director was satisfied that there was reasonable State protection.[16]
19. The Director found that the influence of ADP was mainly in Punjabi. They had not joined the government which was controlled by BJP. The law allowed internal relocation. India was a large and populated country. There were reasonable options for relocation, eg, New Dehli and Mumbai. In fact, the applicant was safe in village Kotli. It was not unreasonably harsh for the applicant to relocate.[17]
20. For the claim under BOR 3, the Director found that the applicant’s injuries did not amount to ‘a minimum level of severity’. There was no genuine and substantial risk of ill-treatment if he returned to India. The BOR 3 claim failed.[18]
21. For persecution risk, the applicant’s dispute with local ADP supporters could not be connected to the top levels of ADP. The dispute was not within any one of the reasons of persecution risk according to the Refugee Convention. This basis of claim failed.[19]
22. For torture risk, the applicant’s injuries were not in the categories 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. He was not targeted by the Indian government.[20]
23. The Director rejected his claims on 4 November 2014.
24. The applicant did not submit further evidence in relation to BOR 2 claim despite the invitation by the Director in a letter dated 20 April 2017. The Director then assessed the BOR 2 claim based on existing facts. The Director concluded that there was no evidence to support arbitrary deprivation of the applicant’s life. The Director rejected the BOR 2 claim on 9 May 2017. [21]
The Decision of TCAB
25. The adjudicator held an oral hearing on 5 July 2017 [22]. The TCAB rejected the appeal on 21 December 2018. The main reasons were as the following:
(a) In the oral hearing, the applicant gave evidence that Shinder had died in a traffic accident on 28 May 2016. The ADP supporters alleged that the applicant was behind it.[23] However, the applicant was in Hong Kong at the time of the accident. The applicant should be safe if he moved to another place in India.
(b) The adjudicator did not accept that Shinder’s group would be so powerful and resourceful to find the applicant anywhere in India.[24]
(c) Although attacked five times, the applicant did not appear to sustain serious pain or suffering. His injuries were not within the definition of torture. There was no official involvement. There was no forseeable, real and personal risk if he returned to India. The torture claim failed.[25]
(d) There was no evidence that the Indian government might impost capital punishment on the applicant. There was no risk under BOR 2. This claim failed. [26]
(e) The adjudicator concluded that the injuries of the applicant did not amount to ‘a minimum level of severity’. There was no ill-treatment. There was no real risk of CIDTP under BOR 3.[27]
(f) The adjudicator pointed out that the harm to the applicant was not for any reasons under the Refugee Convention. There was no reasonable possibility of persecution risk. The claim based on persecution risk failed.[28]
(g) The adjudicator opined that there was no future risk of harm or ill-treatment. There was no need to consider internal relocation. He however pointed out that there were reasonable options for relocation. He did not accept Shinder’s group would be able to locate the applicant.[29]
Judicial Review
26. The applicant applied for leave to apply for judicial review on 24 December 2018. In his supporting affirmation, he pointed out that he was not satisfied with the TCAB decision. He had problems in his home country.
27. 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.
28. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.
29. In my judgment, there is no error of law or procedure. The decisions are reasonable.
Conclusion
30. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 25th day of November 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 25 November 2020
Gurjant 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 25 November 2020
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 471/14/11/87/IN143
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 870/14 & RBCZ/90001434/17 (formerly RBCZ 2741/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Paragraphs 6.5-6.6, the decision of the Director.
[2] Paragraph 6.7, the decision of the Director.
[3] Paragraph 6.8, the decision of the Director.
[4] Paragraph 6.9, the decision of the Director.
[5] Paragraph 6.10, the decision of the Director.
[6] Paragraph 6.12, the decision of the Director.
[7] Paragraph 6.13, the decision of the Director.
[8] Through Lo Wu Control point. He was refused entry.
[9] Through Hong Kong Macau Ferry Terminal. He was refused entry. He raised his claim assisted by a lawyer.
[10] Paragraphs 6.14 & 7, the decision of the Director.
[11] Punjab Police Helpline and Central Vigilance Commission.
[12] Paragraphs 6.16-6.17, the decision of the Director.
[13] Paragraph 6.15, the decision of the Director.
[14] Paragraphs 16, the decision of the Director.
[15] Paragraph 13-15, the decision of the Director.
[16] Paragraphs 16-16.2, the decision of the Director.
[17] Paragraphs 19-23, the decision of the Director.
[18] Paragraphs 24-26, the decision of the Director.
[19] Paragraphs 27-31, the decision of the Director.
[20] Paragraphs 32-34, the decision of the Director.
[21] Paragraphs 1-6 of the decision of the Director dated 9/5/2017.
[22] An oral hearing on 20/8/2015 was initially fixed but the applicant defaulted.
[23] Paragraph19(a), (g) & (k), the decision of the TCAB.
[24] Paragraphs 20-21, the decision of the TCAB.
[25] Paragraphs 24-25, the decision of the TCAB.
[26] Paragraph 26, the decision of the TCAB.
[27] Paragraphs 27-29, the decision of the TCAB.
[28] Paragraphs 30-31, the decision of the TCAB.
[29] Paragraph 32, the decision of the TCAB.
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