Case Document

100%Judiciary

HCAL 2900/2018

[2020] HKCFI 2836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2900 of 2018

BETWEEN
	Gurinder Singh	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	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:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

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 18 March 1990 in village Talwandi Lal Singh, District Gurdaspur, India. He was educated up to class 10. He was a farmer since leaving school from 2006—2013. He was single. His father was in Dubai. His mother and two siblings (age 19 and 24) were in India.

2.The basis of his claim was that his uncle Manjit Singh (‘MS’), who had a land dispute with his father, might harm or kill him if he returned to India. MS was a supporter of the Shiromani Akali Dal Party (‘SAD’). MS was closely connected with Nirmaljit Singh Kalon (‘Nirmaljit’) who was a member of the Legislative Assembly. In addition, the Indian police falsely accused him of using the land of MS without the latter’s permission. He was wanted by the police.

3.In April 2013, the applicant’s grandfather divided his farmland among his 3 sons—the applicant’s father, MS and Charanjit Singh (‘CS’). It was pure chance that the applicant’s father got the best portion. MS was not happy about this allotment. The division of the land was not properly documented and registered.

4.In May 2013, MS and his son came over and assaulted the applicant’s father who was farming on his land. They were armed with sticks. The applicant fought back but was injured with bruises and swellings all over his body. The applicant’s father fainted. MS threatened to kill the applicant and his father if they did not hand over the land. After the fight, the applicant and his father were given painkillers and ointment at a private clinic. They recovered in about a week.

5.The next day, the police drove them out of the police station alleging that they were making a false report against MS. The applicant believed the police was reluctant to intervene as MS supported the ruling party—SAD. The police also threatened to arrest the applicant and his father as MS had accused them of using his land without permission.

6.In June 2013, the applicant fled to Amritsar and stayed with his aunt. His father left India for Dubai without any problem despite wanted by the police. The applicant believed the police at the airport had not yet been alerted. The applicant had no visa for Dubai and could not leave with his father together.

7.He changed hiding places in the next few months as MS learnt of his whereabouts from time to time.

8.In April 2014, a friend bought him a ticket. He left Kolkata to Hong Kong. He encountered no problem in India. He thought the police at the airport was not aware that he was wanted.

9.He overstayed in Hong Kong until March 2015 when he was arrested. He then filed a non-refoulement claim.

10.His mother advised him not to return to India as MS was looking for him. The police might also arrest him.

The Decision of the Director

11.The Director pointed out the following to conclude that the future risk of harm was low[1]:

(a)  Both the applicant and his father recovered in a week after the assault. There was no hospitalisation. They only received treatment including painkiller and ointment. They could both hid away from MS or the police after the assault.

(b)  Nirmaljit was not elected to the parliament. SAD was not the ruling party in Punjab. SAD or Nirmaljit never harmed the applicant.

(c)  His mother and friends told him about the actions of the police and MS, it was hearsay in nature. The applicant had no personal encounter with them during his stay in India.

(d)  The portion of the land belonging to the applicant’s father was left unattended. MS did not use it.

(e)  The applicant and his father could leave India freely.

12.The Director found that the Indian government could provide reasonable protection and assistance to citizens despite there were also reports of widespread corruption and police incompetence. There was a functioning judiciary and a legal aid system.[2]

13.The Director found that there was reasonable opportunity for internal relocation. The law permits internal movement. India was a large country with a large population. There were big cities such as Delhi and Mumbai. SAD was no longer the ruling party and had since become powerless. During his stay in India, the applicant was never located by SAD or MS. It would not be unreasonable for him to relocate given his age and education.[3]

14.For the claim under BOR 2 and BOR 3, given the above, the Director found no evidence that the applicant had real risk of arbitrary deprivation of life. His injuries did not amount to ‘minimum level of severity’. The personal encounters of the applicant did not support a genuine and substantial risk of ill-treatment if returned to India. Both bases of the claim failed.[4]

15.For persecution risk, the applicant was not within any category of persons vulnerable to persecution risk according to the Refugee Convention. There was reasonable chance of relocation and the whole dispute was a private land dispute. This basis of claim failed.[5]

16.For torture risk, the applicant’s injuries did not amount to sever pain or suffering within the definition of ‘torture’ under s 37U (1) of the Immigration Ordinance. There was reasonable state protection. No evidence of official involvement, acquiescence or instigation. The applicant was never targeted by the Indian government.[6]

The Decision of TCAB

17.The TCAB rejected the appeal on 26 November 2018. The adjudicator gave the following reasons:

(a)  The adjudicator accepted the personal background of the applicant. His uncle MS was not happy with the allotment of land and put pressure on the applicant and his father to swap. There was a fight causing injuries to the applicant and his father. The police refused to accept the applicant’s complaint. There was a false complaint against the applicant by MS who had local connections. The applicant stayed away from home in other places before departing India.[7]

(b)  For torture risk under the Immigration Ordinance, the adjudicator found no evidence of involvement or acquiescence by any public official. According to the COI, there was no substantial ground to believe that the police or the state would deliberately withhold protection from the appellant. There was no reason to believe that they would not exercise due diligence to prevent, investigate, prosecute and punish MS and his son. Nor was there a pattern of mass violation of human rights in India. There was no real risk of torture. This claim failed.[8]

(c)  The adjudicator accepted that there might be a small though nonetheless real risk of mistreatment suffered by the applicant if returned to India. However, given the opportunities of reasonable relocation, coupled with that there was no evidence of police charge or court summons, the adjudicator did not accept there was substantial ground to support a real risk of CIDTP under BOR 3 risk.[9]

(d)  The adjudicator pointed out that the harm to the applicant was purely financial and personal. It was not for any of the reasons under the Refugee Convention. There was a functioning justice system enforcing the criminal law in India albeit imperfect. There was reasonable state protection. There were reasonable alternatives of relocation. The claim based on persecution risk failed.[10]

(e)  Given the circumstances of this case as stated above, there was no risk of arbitrary deprivation of life. BOR 2 claim also failed.[11]

Judicial review

18.The applicant applied for leave to apply for judicial review on 18 December 2018 . In his supporting affirmation, he pointed out that his uncle wanted to kill him. The authorities in India would not protect him. Relocation was not possible.

19.In judicial review, the task of 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.

20.The applicant repeated briefly the basic grounds of his claim. He has not pointed out any error in the decisions of the TCAB and the Director.

21.In my judgment, there is no error of law or procedure. The decisions are reasonable.

Conclusion

22.The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.

Dated the 10^th day of November 2020.

	(Mike MAK)
	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:
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)).		Sent to the Applicant on 10 November 2020 Gurinder Singh Applicant’s ref. no: Nil.		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 10 November 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10516/18/2/400/IN2007 Director of Immigration Putative Interested Party’s ref. no.: Q/A T/C 3836/17 (formerly RBCZ/11146/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)