Gurjant Singh v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2954/2018 on BabelCite. This High Court CFI judgment was delivered on 25 November 2020.
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.
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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
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]
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:
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.
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 [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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