Gurvinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1161/2018

[2020] HKCFI 2686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1161 of 2018

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

or counsel [                          ] in open court;

Order by Deputy High Court Judge P. Li :

The application for leave to apply for Judicial Review be withdrawn.

Observations for the Applicant:

1.The non-refoulement claim of the applicant was rejected by the Director of Immigration on 24 January 2018. His appeal to TCAB was dismissed on 10 May 2018. He filed an application for leave for judicial review on 21 June 2018.

2.In the interim on 6 May 2020, he wrote to this court to cancel the leave application. He indicated that his mother was very sick. He would like to return to India as soon as possible.

3.Having ascertained the true identity of this applicant, I grant leave for him to withdraw the leave application.

4.In fact, I have also considered the decision of TCAB. I would have refused leave for judicial review in any event. The reasons are as follows:

a.  The applicant was born on 9 October 1989 at District Gurdaspur, Punjab, India. He received education up to class 10 and worked as a farmer for about 9 years.

b.  He entered Hong Kong from China illegally on 17 July 2016[1]. He surrendered to the Immigration Department on 20 July 2016. He filed a non-refoulement claim on 26 July 2016. He was later released on recognisance. While his stay in Hong Kong, he was convicted of theft for four times and had served his prison terms.[2]

c.  The basis of his claim was that he would be harmed or killed by uncle Kulbir if he returned to India. Uncle Kulbir alleged that he had forged a document to take possession of his grandfather’s land.

d.  In 2014, his grandfather indicated his wish to divide a plot of farmland among his three sons—the applicant’s father, uncle Kuldeep and uncle Kulbir. There was no actual transfer of title.

e.  In April 2014, uncle Kulbir obtained his grandfather’s thumb print and fraudulently used it to secure a mortgage loan over the land. His grandfather was put as the guarantor. When uncle Kulbir failed to repay. The bank threatened to forfeit the land. His grandfather repaid part of the loan and told uncle Kulbir to repay the remainder.

f.  Sometime afterwards, the applicant and his cousin (uncle Kuldeep’s son) fraudulently transfer the title of the land to their fathers respective. This was meant to secure their fathers’ title of their respective portion. On the document of transfer, they used the thumb print of their grandfather which was obtained while the latter was drunk.

g.  Uncle Kulbir learned about this and attacked the applicant with a sickle. His forearm was fractured. He did not report to the police. However, uncle Kulbir reported the forgery to the police.

h.  The applicant did not feel safe and decided to leave India for Hong Kong.

5.The adjudicator pointed out that the applicant and his cousin had admitted forging a document for transfer of title. Uncle Kulbir had a genuine complaint against them. In addition, there were several significant inconsistencies between the NCF and his oral evidence[3]. The adjudicator found him unreliable and reject his evidence.

6.The adjudicator concluded that there was insufficient evidence to support sever pain and sufferings. There was reasonable state protection and relocation options in India. There was no evidence of that any public official had involved, instigated or acquiesced the attack. The torture claim failed.[4] The applicant did not face any risk of ill-treatment as provided under BOR 3.[5] There was no persecution risk under the Refugee Convention as the applicant was not subject to any risk arising from convention reasons.[6] There was no evidence to support any deprivation of life under BOR 2.[7]

7.In my view, the decision of the TCAB was reasonable given the unreliable evidence of the applicant. There was no error of law or procedures.

Dated 20^th day of October 2020

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