Sharma Rohit v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2976/2018

[2021] HKCFI 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2976 of 2018

BETWEEN

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:

1.On 18/8/2014, the applicant entered Hong Kong from Macau.[1] He was allowed to stay for 3 days. He overstayed until 7/9/2014 when he was arrested. He filed the non-refoulement claim in this case on 9/9/2014.

2.His claim was rejected by the Director on 3/10/2017. His appeal to the TCAB was dismissed on 10/12/2018. He filed the leave application on 27/12/2018.He was in fear that he might be harmed or killed by his cousin because of a land dispute. He was also in fear that he might be imprisoned for the frame-up.

Background

3.The applicant was born on 24/5/1983 in Jalandhar, Punjab, India. He had a Bachelor degree in Arts.  He was a salesman from 2006—2010.  He was employed by the HDFC bank in finance marketing from 2010-2014.  He was single. He was a Hindu.

4.In 1998, his father purchased a plot of land jointly with his uncle (“the land”). [2] It was intended for building houses for both families. Later, his father purchased his uncle’s share and built a house on it. His family started living there in 2010. However, there was no documentation of the latter transaction, the land was still in joint name of his father and his uncle.

5.His father and uncle passed away in 2011 and 2012 respectively. In October 2012, his uncle’s son (‘Manoj’) asked about the title of the land. His mother explained to Manoj about the latter transaction. Manoj indicated that he would think about it. He knew Manoj was the president of the Bharatiya Janata Party (‘BJP”) youth wing and had connection with gangsters.

6.In April 2013, he acted as guarantor for Manoj to borrow a loan of 500,000 Rupees from the HDFC bank. Manoj only repaid 2 instalments. He repaid 1 instalment for Manoj in October 2013. Manoj threatened the bank staff who pursued the loan. During that time, he was unable to locate Manoj to discuss about repayment.

7.On 1/1/2014, while he was driving home with his brother on a motorbike, Manoj and some men stopped him. Manoj blamed him for asking around and compromised Manoj’s reputation. An argument followed and he was attacked by them with baseball bats and metal rods. He and his brother fainted and were sent to Johal Hospital. He had wounds on the head, bruises all over his body and a fractured left leg. He was hospitalized for about 16 days. It took a long time to recover.

8.He complained to the village committee who advised him not to report to the police as it was a domestic matter. Manoj promised to repay the loan. He and his brother accepted Manoj’s apology.

9.In the last week of January 2014, Manoj and some men demolished the boundary wall of the land. They assaulted his brother. He rushed back from work but Manoj had already left. There was no serious injury to his brother. On the advice of the village committee, he reported the incident to the Rama Mandi police station.

10.In February 2014, he was told to resign from the HDFC bank as Manoj did not repay the loan.

11.On 10/2/2014, at about 9pm, Manoj and some men attacked him again while he was driving home. They blamed him for reporting to the police. They carried baseball bats, choppers, swords and guns. However, he and his brother managed to escape. Later that night he could not get home as Manoj and those men were waiting at the gate. Next morning, he went to report to the senior superintendent (‘SSP’) at the government office. The SSP promised to look into the matter.

12.At the end of February, the SSP told him that the case was referred back to Rama Mandi police station. He did not expect that the SSP or the officer from Rama Mandi police station would take any action. They were influenced by Manoj’s maternal uncle who was a powerful politician and an excise minister.

13.In March 2014, his mother told him that Manoj filed a report to the Rama Mandi police station against him for taking Manoj’s land. The police went to his home to locate him.

14.From March to July 2014, he and his brother were hiding at various places, Manoj and his men managed to locate them somehow. [3] He went to West Delhi and finally decided to go to Hong Kong.

15.He left India on 2/8/2014 for Thailand. He arrived at Hong Kong on 6/8/2014. He took a round trip to Macau on 18/8/2014 to extend his visa. His mother informed him by phone that Manoj continued to harass her.

16.He did not expect the police would help him. They were influenced by Manoj’s uncle. He did not think the complaint channels were useful as the complaint would be referred back to Rama Mandi police station.

17.Internal relocation was impossible as Manoj and his uncle had growing political influence. He did not think New Delhi or Mumbai were possible options.

The Decision of the Director

18.The Director pointed out the following to conclude that the future risk of harm was low:[4]

(a)  The applicant was only injured by Manoj and his men during the first attack on 1/1/2014. He was able to escape on foot from Manoj on 10/2/2014 despite the fractured left leg and muscle injuries. The injuries were not severe.

(b)  After deciding to leave India, he applied for visa to Qatar and Malaysia. He then went to Thailand for 3 days en route to Hong Kong. He extended his stay in Hong Kong by making a round trip to Macau on 18/8/2014. All these indicated he was not mentally affected.

(c)  He did not file non-refoulement claim immediately but tried to extend his visitor visa by making a round trip to Macau. He only lodge a claim after he was arrested for overstaying in September 2014. This was inconsistent with his fear of harm from Manoj.

(d)  The land dispute was a private matter.  The default repayment of the loan was also private in nature. There was no evidence that the government was involved. There was no instigation, acquiescence and consent by any public officials.

(e)  Manoj was only a president of BJP youth wing, it was illogical that he could deploy BJP resources to locate the applicant. Manoj was unable to locate him after he changed his mobile phone. It appeared he was safe in west New Delhi. Manoj’s influence only covered Punjab and Himachal Pardesh at most.

(f)  The position of Manoj’s uncle was not that influential as the applicant claimed. The uncle was only the president of SAD in a district. He was only the vice chairman of Punjab Traders’ Board. Not an excise minister as the applicant claimed. It was implausible that the uncle could influence the Indian police country wide.

(g)  He was not targeted by the Indian government. There was no evidence that he would not be given a fair trial. In any event, his father was in joint ownership of the land. This at least was a partial defense to Manoj’s allegation.

19.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 were proactive measures to uphold law and order.  The Indian government would not tolerate malpractice of individual officers.  There were positive reforms which improve police effectiveness and transparency.  There were alternative channels for complaint, e.g. CVC, Ombudsman and NHRC. [5]

20.The Director found that there was reasonable opportunity for internal relocation.  The law permitted internal movement.  India was a large country with a large population.  New Delhi and Mumbai were big cities.  There was no evidence that BJP had targeted the applicant.  During his stay in west New Delhi, the applicant was safe.  It would not be unreasonably harsh for him to relocate given his age and education.[6]

21.For the claim under BOR 3, his injuries, physical or mental, did not amount to ‘a minimum level of severity’.  The circumstances of the applicant did not support a genuine and substantial risk of ill-treatment if he returned to India. Similarly, there was no evidence to establish arbitrary deprivation of life. Both BOR 3 and BOR 2 claims failed.[7]

22.For persecution risk, the ill-treatment of the applicant was not within the ambit of ‘persecution’ according to the Refugee Convention.  The land dispute was a private matter. The loan was also a personal matter. There was no well-founded fear of persecution. The claim on persecution risk failed.[8]

23.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 that there was official involvement, acquiescence or instigation.  The applicant was never targeted by the Indian government.  He could leave India without any problem. [9]

24.The Director rejected all the above claims on 3/10/2017.

The Decision of TCAB[10]

25.The TCAB rejected the appeal on 10/12/2018.  The adjudicator set out the facts of the applicant’s case as above.  She also set out the governing legal principles.  She pointed out the following which affect the credibility of the applicant:

(a)  The adjudicator found that Manoj had accepted the explanation of the applicant’s mother. The land was wholly owned by the applicant’s father despite no documentation. Manoj had no intention to harm or kill the applicant.

(b)  The two attacks were 6 weeks apart. There was no explanation why Manoj would suspend the attack in the interim. The applicant and his brother was outnumbered by Manoj and his men. It was not plausible that they managed to escape without injury on 10/2/2014. The adjudicator rejected that there was such an attack.

(c)  The applicant spent 3 days in Thailand and did not seek protection. This affected his credibility on being in fear.

(d)  The applicant was able to obtain a visa to Malaysia. He did not go there but chose to go to Hong Kong. There was no satisfactory explanation. This was inconsistent with his fear of harm or death.

(e)  The applicant was never detained or interrogated while leaving India. He was not targeted by the Indian authorities. There was no foreseeable future risk of harm or death.

(f)  The applicant’s mother still occupied the land. Manoj had not taken any action to acquire the land despite his power and influence in that area as the applicant alleged. This demonstrated that Manoj did not have intention to harm and kill the applicant in order to acquire the land.

(g)  The adjudicator did not accept that Manoj had become more dangerous. The adjudicator did not accept Manoj had travelled to Hong Kong to locate the applicant.

(h)  The applicant could not provide any documentary proof of the loan or he was the guarantor. He knew very little about Manoj’s purpose for raising the loan. This was inconsistent with what a guarantor would be eager to know. Given Manoj’s involvement with gangsters, it was unlikely that the applicant would still act as his guarantor. It was unreasonable that the bank would prefer resignation instead of repayment by the applicant.

(i)  The adjudicator did not accept that Manoj or his uncle could influence the police to trump up a false case against the applicant. Had there been a land dispute, the applicant could resort to the land dispute tribunal in India for resolution.

26.The adjudicator found that the applicant was not a credible witness. She concluded that the applicant was not targeted by Manoj, the police or anyone in India. There was no real risk of any harm if he returned to India. The issue of State protection would not arise.

27.The adjudicator nonetheless considered the question of internal relocation. She was satisfied that there were reasonable options of relocation. Given his background, it would not be unduly harsh for the applicant to do so.

28.The adjudicator concluded that there was no real risk of harm which could establish BOR 3, BOR 2, persecution risk and torture risk. All claims failed.

Judicial Review

29.The applicant applied for leave to apply for judicial review on 27/12/2018. In his supporting affirmation, he has not pointed out any specific error in the decisions of the TCAB and the Director.

30.In judicial review, this court decides whether there is any error in law and procedures.  Whether the decision of the TCAB is irrational.  Finding of facts is the duty of the TCAB and the Director.  In general, this court would not interfere.

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 the 9^th day of February 2021.

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