Pankaj Kumar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2398/2018

[2021] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2398 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.The applicant came to Hong Kong on 30/12/2013. He was permitted to stay as a visitor until 3/1/2014. He overstayed and surrendered to the Immigration Department on 7/2/2014. He raised the non-refoulement claim in this case on 18/3/2014.

Background [1]

2.The applicant was born on 31/7/1988 in District Nawanshahar, Punjab, India.   He obtained a BA degree (2005-2008) from the Government College. He was studying for a master’s degree in the Government College before leaving India in 2013. He was a Hindu.

3.In February 2012, he assisted Jatinder (“J”) in running for the president of the student union. Jatinder was a member of the youth wing of Indian National Congress Party (“INC”). The other candidate was Pritpal Singh (“PS”) who was a member of the Shiromani Akali Dal (“SAD”). There were fights between supporters of the two camps during the election. PS won the election eventually. After the election, he was targeted by PS because of his relationship with J.

4.In March 2012, he was attacked by a group of PS supporters on the road. He was punched and slapped for a few minutes. He sustained bruises round his right eye. He was given painkillers and injection by a doctor. He recovered in 15 days.

5.He had not reported to the police as he did not want his father to know. His father did not want him to participate in politics.

6.He was harassed and threatened in the campus by PS supporters. There was a subsequent meeting [2] between both camps and the harassment stopped.

7.Around December 2012, PS and J jointly organized a Sikh religious function— ‘Akkand Path’—in the college supervised by a professor [3]. The applicant assisted J in the event.

8.One day, there was an argument between the two camps. PS accused J of muddling with the fund raising accounts. The applicant was also threatened by PS. The professor intervened and stopped the argument. Later in the afternoon, there was a fight between the two camps at the parking lot. The applicant did not sustain serious injury and escaped. However, during the fight, PS’s brother was knocked down by a car and died subsequently in a hospital.

9.After the incident, the applicant immediately left his home and went to stay with his sister at Himachal Pradesh. He learned that a report was filed against his group for murder. The charge was dropped after the professor explained to the police that it was an accident.

10.A week later, he moved to stay with his grandfather at Hoshiapur. During that time, PS and some police officers came to his home asking about him. They also threatened his father. His father did not report to the police. On the advice of the village council, his father disowned him sometime in early 2013. PS and the police stopped the harassment.

11.After staying at Hoshiapur for 2—3 weeks, he went to Delhi and stayed with a friend for 8 months until December 2013. During his stay in Delhi, he met a friend of PS at the Delhi Metro. He was afraid that person might inform PS. He went to Thailand for his safety in November 2013. However, he thought Thailand was not safe, he returned to India after a few days.

12.He finally took a flight from Delhi to Hong Kong. He encountered no problem leaving India. He arrived at Hong Kong on 30/12/2013

13.He would be in danger if returned to India as PS would try to locate him. PS was rich and influential. He could not relocate to other cities as he had no network at all. He was disowned and would not have any share of his father’s properties.

14.In Hong Kong, he contacted his sister who told him that his family did not have any problem after disowning him.

The Decision of the Director [4]

15.The Director pointed out that the risk of harm would unlikely be materialized for the following main reasons:

(a)  There were several encounters between the applicant and PS, his injuries were not serious.  They did not amount to “a minimum level of severity”.

(b)  There was no evidence that PS and his supporters were acting in official capacity. The applicant was not targeted by the State. There was no evidence of State involvement. There was no evidence that the confrontations were under the consent, acquiescence or instigation of any public official.

(c)  The conduct of some officers assisting PS in harassing the applicant’s father was isolated incidents. The applicant’s father did not complaint to other police stations or higher authority. This should not be taken as State involvement.

(d)  The applicant was safe when he stayed with his sister and grandfather. He was safe in New Delhi.  His family at home was not attacked. 

(e)  The Director had considered various COI.  While there were corruption, human right violations and police abused power, there were on-going reforms with improvements. The ‘181 Punjab Police Helpline’ was established to handle various unfair and delayed police actions. Public interest petitions by NGO were allowed to seek judicial redress of breach of official duty. Special channels were established to tackle corruption (Central Vigilance Commission). There were newspaper reports that police officers and members of SAD were prosecuted for unlawful conduct.  The Director was satisfied that there was reasonable State protection.

(f)  The law allowed internal relocation.  India was a large and populated country.  There were reasonable options for relocation, e.g., New Delhi and Mumbai. It was not unduly harsh for the applicant to relocate.

16.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.

17.On similar reasons, the Director concluded that there was no evidence to support arbitrary deprivation of the applicant’s life.  The Director rejected the BOR 2 claim.  

18.For persecution risk, the applicant’s dispute with PS supporters was personal in nature. The dispute was not within any one of the reasons of persecution risk according to the Refugee Convention. Both State protection and internal relocation were available. This claim failed.

19.For torture risk, the applicant’s injuries were not in the categories as defined by s 37U (1) of the Immigration Ordinance.  There was no evidence of official involvement, acquiescence or instigation.  There was reasonable State protection.  The applicant was able to travel freely.  He was not targeted by the Indian government. This claim failed.

20.The Director rejected his claims on 21/3/2017.

The Decision of TCAB

21.The adjudicator held oral hearings on 19/6/2018 and 3/7/2018.  She rejected the appeal on 26/10/2018.  The main reasons were as the following: [5]

(a)  In the oral hearing, the applicant gave vague evidence about the assault during the election of the president of the student union. His account lacked the kind of detail expected from a victim.

(b)  The applicant was unable to recall the date, time, place and various persons present during the meeting to settle the harassment by PS. There were inconsistencies between his NCF and his oral evidence. He failed to give satisfactory explanation.

(c)  The applicant claimed that the president of the youth wing of INC was Nirmal Shing Saini. However, according to the adjudicator’s research, it should be Rajwinder Singh Lucky. When this was put to him during the oral hearing, he denied having said Nirmal was the president. He only said Nirmal accompanied the president. The adjudicator found this most unconvincing.

(d)  Concerning the fight at the carpark, he was unable to give detailed description of the accident in the oral hearing. The circumstances of the car accident leading to the death of PS’s brother were vague. Most importantly he said PS was not present which was inconsistent with his NCF. He could produce no proof whatsoever of the accident.

(e)  The applicant could recall very little detail of the accident. The adjudicator opined that this was inconsistent with a person who was accused of murder.

(f)  The adjudicator pointed out that the applicant never mentioned in the NCF that PS was accompanied by police officers when going to his home. He could not have left out such important aspect. He only mentioned it during the screening interview before the Director.

(g)  The death of PS’s brother was not reported in any newspaper at that time. Given that most media had online versions and that the father of PS was influential, the adjudicator had grave doubt as to the truth of this incident.

(h)  The adjudicator rejected the evidence of the applicant on credibility. She did not accept the primary facts which formed the basis of the claim.

(i)  The adjudicator pointed out that both the central and the state governments had taken active steps to tackle corruption, inefficiency of the police and the judiciary. There was a comprehensive system to enforce law and order. There was no evidence of inaction or indifference on the part of the Indian government.

(j)  The applicant chose not to report the conduct of PS to the police. There was no evidence that the authorities were aware of the conduct of PS but condoned or permitted it.

(k)  Given that the adjudicator rejected the primary facts, the applicant failed to prove there was torture as defined under the Immigration Ordinance. Torture claim was rejected.

(l)  There was no factual basis for CIDTP amounting to “a minimum level of severity”. There was no real risk of future harm. BOR 3 claim failed.

(m)  Similarly, there was no evidence that his life would be at risk if he returned to India. BOR 2 failed.

(n)  The applicant failed to prove a well-founded fear of persecution. He was not a refugee under the Convention. In fact, there was reasonable State protection and relocation options.

Judicial Review

22.The applicant applied for leave to apply for judicial review on 30/10/2018. In his supporting affirmation, he pointed out that he was not given a fair hearing before the TCAB.  He could not understand the bundle which was largely in English. The TCAB relied on outdated COI and most of them were hearsay in nature.

23.The applicant applied on 24/4/2019 to withdraw his leave application. He indicated in his affirmation that his problems back in India had finished. He would like to go home.Deputy Judge Lung allowed his withdrawal on 29/4/2019.

24.On 18/5/2020, the applicant applied to re-instate his leave application. He mentioned in his letter that all problems remained. His enemy was still looking for him. He would be killed if he returned to India. He was allowed to re-instate his leave application by Deputy Judge Lung on 16/6/2020.

25.He requested for a hearing which was scheduled on 17/11/2020 before this court. He explained that he changed his mind as no one represented him in India. His father passed away in February 2019. He learned about this shortly afterwards. Although his father had disowned him, his father had talked to the opposite side. He was not sure about any settlement. He asked for time to produce documentary proof of his father’s death.This court allowed him two months to sort out the documentary proof. To date, this court had not received anything from the applicant.

26.Had the applicant learnt about his father’s death shortly after February 2019, it was inexplicable why he would still apply to withdraw the leave application in April 2019. In fact, in his affirmation dated 24/4/2019, he only indicated that his problem in India had finished.

27.In his written application to re-instate dated 18/5/2020, he did not mention that his father had passed away making the settlement problematic. Had that been a significant factor, he would not have left it out.

28.In my view, the applicant is just making up excuses. He is not a credible person. In any event, this court has considered the decisions of the TCAB and the Director.

29.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 duty of the TCAB and the Director.  In general, this court would not interfere.

30.The applicant argued that he was not given any translation of the appeal bundle which was in English. He could not understand its content in short notice. In my view, the most important document in the appeal bundle is the decision of the Director. It must have been translated to him by the DLS. As to the NCF, it was interpreted to him at the time of compilation. He signed to confirm the content was true, complete and accurate. The fact that there is no translation of the appeal bundle would not give rise to any unfairness.  

31.On the one hand, the applicant complained that he was confused during the hearing before the TCAB. On the other hand, he maintained that he answered all questions honestly. A fair reading of the decision of the TCAB showed that the adjudicator had explored the issues in great detail. The applicant was given ample chance to explain.

32.The adjudicator had considered the COI listed out in the decision of the Director. They were accessed latest in 2017. They were authentic reports from reliable sources. In fact, the applicant did not point out any specific inaccuracy or substantial change of circumstances. I do not accept this general criticism.

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

Conclusion

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

Dated the 19^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