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

HCAL 2975/2018

[2021] HKCFI 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2975 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 29/11/2012.  He overstayed until he was arrested on 26/8/2013. He filed a CIDTP claim on 28/8/2013 and 3/9/2013.

2.The non-refoulement claim was dismissed by the Director on 8/1/2016. His appeal to the TCAB was dismissed on 3/4/2017.

3.In the interim, the Director invited the applicant to file further evidence in relation to BOR 2 claim on 29/3/2017.  He did not respond. By the further decision dated 20/4/2017, the Director dismissed the BOR 2 claim based on the available information.

4.The applicant filed an appeal against the further decision on 4/7/2017. He was out of time for about 2 months.[1] The TCAB refused his application for late filing on 14/12/2018.

5.The applicant filed the leave application for judicial review on 24/12/2018. He only sought leave to review the decision of the TCAB dated 14/12/2018.

Background

6.The applicant was born on 25/9/1989.  He was from Shahkot, Punjab, India.  He had received education up to class 12. From 2010-2013, he operated his own business in India.  His parents and 2 siblings were in India. He was from a lower class family called Mehra.

The love relationship [2]

7.In 2010, he fell in love with his schoolmate, Heena (“girlfriend”).  The relationship continued for 2 years after the applicant graduated.

8.His girlfriend was from an upper class family called Arora.  She was not allowed to meet people outside the family circle.  Her family was a rich landlord. Her father had good connections with senior leaders of Shiromani Akali Dal (“SAD”).  Her brother was a well-known gangster and connected in drug activities.

9.In mid-2012, while the applicant and his girlfriend were having tea in a restaurant, her brother suddenly appeared.  Her brother threatened to kill the applicant if the relationship continued.  The applicant was not attacked. He did not report to the police.  He did not want her family to learn about the relationship.

10.The relationship continued in secret.  In August 2012, while the applicant was driving home on a motorcycle, his girlfriend’s brother and other men attacked him [3]. He was kicked and hit with baseball bats.  The attack lasted for about 5 minutes.  He was eventually rescued by the passers-by and escaped. He had some muscle injuries but did not consult any doctor.  He recovered in about 5 days.

11.He revealed the relationship to his parents.  They were afraid of getting more trouble.  They decided not to report to the police.

12.The applicant was sent away to his grandparents at village Maheru.[4]  About 15 days later, his father informed him that the police came to look for him in relation to a drug trafficking case.  He then decided to leave India for Hong Kong.

13.He stayed in a Sikh Temple at New Delhi for one and half months.  He took a freight from New Delhi to China on 24/11/2012.  He then entered Hong Kong through the Lo Wu Checkpoint on 29/11/2012.  He encountered no problem using his passport to depart India.

14.The applicant was in fear that his girlfriend’s brother might harm or kill him if he returned to India.  He was also afraid that he might be imprisoned for the false drug trafficking case.

15.He did not consider relocation in India as he was wanted by the police.  His girlfriend’s family had good connections with the ruling party.  His girlfriend’s family had many relatives all over India.  He would be located anywhere in India.[5]

16.He did not know there was a Central Vigilance Commission handling complaint against corruption.  He did not know there was an independent judiciary, the presumption of innocence and public trial.  He did not think the police would listen to him as he was from a lower class family.

The Decision of the Director [6]

17.The Director pointed out the following to conclude that the level of risk of harm from his girlfriend’s family was low:

(a)  Apart from some verbal threat, the applicant claimed to have been attacked by his girlfriend’s brother once.  The injuries sustained was not serious despite baseball bats were used.  He did not consult a doctor. He recovered in about 5 days.  It was not accepted that his injuries amounted to “a minimum level of severity”. 

(b)  The applicant was safe in Maheru and New Delhi. His girlfriend’s family could not locate him.  There was no evidence that his girlfriend’s family could locate him anywhere in India.

(c)  The applicant did not report to the police for fear of further trouble. However, this could not support his assertion that the police would not assist him had he made a report.

(d)  The police never approached the applicant directly for the drug trafficking case.  It was only hearsay from his father.  He could leave India without any problem.  He was not targeted.  There was no evidence of State involvement.

(e)  The claim that his girlfriend’s brother could plant drugs in his home was pure speculation.

(f)  There were COI reporting widespread corruption and police abuse of power. The criminal justice system failed to protect human rights abuses. On the other hand, there were COI which showed measures to monitor police conduct and improve efficiency. The judiciary was independent. The law provided for public trials and recognized the presumption of innocence. An accused might choose his own counsel. The police remained structured and regulated by the law. The Central Vigilance Commission was set up to tackle corruption and abuse of power. The Director was satisfied that there was reasonable State protection.[7]

(g)  The law permitted internal movement.  India was a large country with huge population. Mumbai and Kolkata were possible options.  It would be difficult for his girlfriend’s family to locate him. In fact, he was safe in Maheru and New Delhi.  It would not be unduly harsh for him to relocate given his age. [8]

18.For the claim under BOR 3, the Director found no evidence of ill-treatment amounted to ‘a minimum level of severity’.  There was reasonable State protection and internal relocation options.  The evidence did not support a genuine and substantial risk of ill-treatment if he returned to India.  This claim was rejected. [9]

19.For persecution risk, the dispute between the applicant and girlfriend’s family was private and personal.  The applicant was not within any category of persons vulnerable to persecution according to the Refugee Convention.  His fear was not well founded. This claim failed.[10]

20.There was no severe pain and suffering, physical or mental, inflicted on the applicant within the meaning of torture under s.37U of the Immigration Ordinance.  There was no State instigation, consent or acquiescence.  He was not targeted by the Indian government.  Torture claim failed. [11]

21.The Director invited the applicant to file further evidence in relation to BOR 2 on 29/3/2017.  There was no response.  The Director considered the available evidence and concluded that the applicant would not be in real risk of arbitrary deprivation of life.  The Director rejected the claim under BOR 2 on 20/4/2017.

22.The Director dismissed all claims on 8/1/2016 and 20/4/2017 respectively.

The Decision of TCAB

23.The applicant filed a notice of appeal to the TCAB on 4/7/2017.  It was only against the further decision dated 20/4/2017.   In that further decision, the Director rejected the BOR 2 claim.  The applicant was nearly 2 months out of time.

24.In gist, the applicant explained in section 5 of the notice of appeal that he got his letter late.  When he reported to the Immigration Department, the officer informed him that his case had been refused.[12]

25.The adjudicator pointed out that the regime for late filing of notice of appeal was a strict one.  A claimant must comply with all time limits.  The adjudicator adopted the principles for extension of time in judicial review.  He considered factors including 1) length of the delay, 2) explanation of the delay, 3) the merits of the substantive application, 4) prejudice and 5) whether there are important questions of general importance.[13]

26.The delay was quite long and there was no real explanation for it.  The adjudicator considered the facts and reasoning of the TCAB decision dated 3/4/2017.  That decision was by another adjudicator in relation to all grounds except BOR 2.  Having considered all this and that there was no additional evidence, the adjudicator rejected the BOR 2 claim.

27.The adjudicator concluded that there was no good reason for the delay.  There was no special circumstance and it would not be unjust to disallow late filing. The adjudicator refused late filing on 14/12/2018.

Judicial Review

28.The applicant filed the leave application for judicial review on 24/12/2018. In his Form 86 and affirmation, he stressed that his life was not safe. He wanted to stay in Hong Kong.

TCAB refusal of late filing

29.The applicant was late for nearly two months in filing the notice of appeal against the further decision of the Director dated 20/4/2017.  He confirmed in his notice of appeal that he did not receive the further decision in time for lodging an appeal.  He however gave no detail of the background.

30.In my view, the adjudicator was right to consider the findings of the TCAB by the other adjudicator.  He was right to consider various factors including the merits of the BOR 2 claim.

Conclusion

31.There is no error of fact and law. The decision is reasonable. In the circumstances, there is no good reason to allow late filing.  The leave application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review in relation to the TCAB decision dated 14/12/2018.

Epilogue

32.I agree with the decision of the TCAB dated 3/4/2017 as follows.

33.For torture risk, the adjudicator found that there was one verbal threat and one physical attack.  The latter caused muscular injuries which recovered in 4-5 days.  The applicant did not seek treatment.  The injuries did not amount to a minimum level of severe pain and suffering within the definition of torture under s.37U of the Immigration Ordinance.  There was no evidence of State consent, acquiescence and instigation.  In fact, the applicant did not report.  The applicant could leave India without problem.  He was not targeted despite the alleged false drug trafficking case against him.  The adjudicator had considered relevant COI and satisfied that there was reasonable State protection of its citizens. There was no future risk of harm.  This claim failed.

34.The adjudicator found that there was no ill treatment which amounted to a minimum level of severity.  Given that there was reasonable State protection, there was no genuine and substantial risk of ill treatment if refouled. BOR 3 claim failed.

35.The applicant was not attacked because of any Convention reasons.  It was a private matter arising from the relationship of the applicant and his girlfriend.  There was State protection and reasonable alternative for relocation.  There was no well-founded fear of persecution. This basis of claim failed.

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