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HCAL 3008/2018
[2021] HKCFI 830
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3008 of 2018
BETWEEN
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Nahar Karamveer Singh alias Karamjit Singh |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
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consideration of the documents only; or |
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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 7/8/2015. He overstayed until he surrendered to the Immigration Department on 24/8/2015.[1] He filed a non-refoulement claim on 21/1/2016.
2.The non-refoulement claim was dismissed by the Director on 2/2/2018. His appeal to the TCAB was dismissed on 28/12/2018.
3.The applicant filed the leave application for judicial review on 31/12/2018.
Background
4.The applicant was born on 21/7/1991. He was from Punjab, India.[2] He had received education for 12 years. He was unemployed since graduation. He was single. His family belonged to the race of Majhbi Sikh which was the lowest caste in Indian community.
5.He started a love relationship with his girlfriend in 2009. They knew each other since primary school from 1997. His girlfriend was from a Hindu family of the Brahamin castes. Her father had affiliation with the local leader of the Congress Party (Bittoo). Bittoo was a member of the legislative assembly. Her father also had connections with the head of the village council.
6.In 2012, a brother of his girlfriend discovered the relationship. Her family strongly disapproved as marriage between Hindu and Sikh was discouraged.
7.In mid-2012, her brothers located him in the college he attended. They beat him for about 20 minutes. He sustained some minor bruises. He did not seek treatment. He did not report to the police.
8.In March 2013, 5 men attacked him and his friend on the street. They used baseball bats and sticks. It lasted for about 10 minutes. He had injuries over his left eye. His right upper arm was fractured. He was hospitalized for 15 days. His friend suffered head injuries and died 2 months later. The police took a statement from him but no one was arrested or charged. He suspected that his girlfriend’s father had covered up the murder.
9.Two months after his discharge from the hospital, he left hometown Jagraon and stayed with relatives in various cities [3] for several months. He was safe during this period. Subsequently, his family arranged him to take a flight from New Delhi. He arrived at Hong Kong on 7/8/2015.
10.Although he went to the police for help, they seemed to be in favour of her girlfriend’s family. He suspected that her father, Bittoo and the head of the village council had influenced the police to take no action.
11.He did not know there was a Central Vigilance Commission, NHRC and Ombudsman. He did not think he could seek help from the court.
12.He was afraid that the family of her girlfriend would harm or kill him. They disapproved the relationship even before marriage.
13.His girlfriend was 25 and remained single. She had well passed the normal age of marriage in India. She refused to marry another person. Her family blamed him for this and would take revenge once he returned to India.
14.During the interview before the Director, he claimed that his brother was assaulted by her girlfriend’s family in January 2018. Initially, he got pictures of his brother’s injuries transmitted to his phone but they were deleted by mistake. He stressed that his problem would only be solved until his girlfriend got married.[4]
The Decision of the Director
15.The Director pointed out the following to conclude that the level of risk of harm from his girlfriend’s family was low: [5]
(a) The applicant claimed to have been attacked by his girlfriend’s brother twice. On one occasion they used baseball bats and sticks. He did not consult a doctor after the 1st assault. He fractured his forearm and was hospitalized for 15 days in the 2nd assault. Had the assailants wanted to kill, they had plenty of chances. It was not accepted that his injuries amounted to “a minimum level of severity”.
(b) The applicant had openly met her girlfriend for about 3 years since 2009. There was no disapproval from others in the community. There was no evidence that the community would not accept this kind of relationship in general. It was his own speculation and a private matter between their families.
(c) The applicant was safe at home after discharge from the hospital. He was safe in several cities before leaving India for Hong Kong. Her girlfriend’s family did not trouble him or his family. This showed that the harm was not imminent.
(d) There was no evidence that her girlfriend’s family held any public office in the government or the Congress Party. The dispute was a private matter, there was no official involvement. There was no reason for the Congress Party to be involved. There was no evidence the village council was involved.
(e) The applicant claimed that her girlfriend’s father covered up the 2nd assault and the murder. There was no concrete evidence to support this allegation. It was purely his speculation. In fact, he had not tried to complain to other higher authorities.
(f) There were COI reporting widespread corruption and political influence on the police. The effectiveness of the police varied widely. Honour killings were not properly investigated. On the other hand, there were COI which showed measures to improve efficiency in the police. The government had promoted awareness among the population for challenging corruption. A complainant might take his case further to the Superintendent or even a Magistrate on the failure of an officer to investigate. The NHRC was tasked to investigate human rights violations and promote public awareness. The Central Vigilance Commission and an ombudsman organization (Lokpal) were set up to tackle corruption and abuse of power. There were positive measures to uphold the rule of law, right to fair trial and efficiency of the Judiciary. The Director was satisfied that there was reasonable State protection.[6]
(g) The Supreme Court of India had ruled that there was no right for the village council to override the law and interfere with freedom of marriage of adults. The Court also denounced threats and violence against inter caste and inter religious marriage.[7]
(h) The law permitted internal movement. India was a large country with huge population of 1.3 billion people. It would be difficult for his girlfriend’s family to locate him. In fact, he was safe in various cities before leaving India. It would not be unduly harsh for him to relocate to New Delhi or Mumbai given his age. [8]
(i) The applicant submitted articles which revealed that there were honour killings in some parts of India. These arose from the disapproval of inter-caste and inter-religious marriage or relationship in some communities. The honour killings were perpetrated by village councils. These were generic evidence and not specific to the applicant. Given the finding that there was low risk of harm, the applicant could not rely on those generic evidence.[9]
16.The Director dismissed his claim on all grounds.
The Decision of TCAB
17.The applicant attended a hearing on 12/10/2018. He was assisted by an interpreter. He indicated that he had no further document to submit.
18.The adjudicator pointed out some discrepancies in relation to some central issues in his evidence as follows:
(a) In his NCF, the applicant stated that the relationship started in 2009 after they both completed secondary school. However, during the hearing before the TCAB, he said the relationship started in 2005. The adjudicator did not accept it was a mistake. The beginning of the relationship coincided with the completion of secondary school education, it was a central issue which should not be mistaken.
(b) The applicant was vague as to the circumstances of discovery of the relationship. He said it was 5-6 years after the relationship began in 2009. However, in his NCF, he stated that the relationship began in 2012. The adjudicator doubted his credibility.
(c) In his NCF, the applicant stated it was a brother of her girlfriend who discovered the relationship. In the hearing before the TCAB, he said it might be someone who saw them together. He did not know how. The adjudicator found this unconvincing as her girlfriend’s brother was the person whom he feared might inflict harm on his return to India.
(d) In the hearing before the TCAB, the applicant said that her girlfriend was assaulted by her family after they discovered that he had continued to contact her on the phone. It was 6 months after they warned him to stop the relationship. This was never mentioned in the NCF or to the Director. Given that the risk of honour killing was an important aspect in the applicant’s claim, he could not have missed out this significant event.
(e) In the hearing before the TCAB, the applicant said the 1st assault occurred when he was standing outside his house. A scuffle ensued with exchange of blows. This was inconsistent with his NCF according to which the assailants located him in the college he attended and beat him for 20 minutes. The applicant explained that both assaults occurred. However, he had never mentioned any assault at the college throughout the hearing.
(f) In the hearing before the TCAB, the applicant said he was hospitalised for 2 months and his friend died the next day after the attack. This was inconsistent with his NCF where he said he was hospitalised for 15 days and his friend died 2 months after admission. The adjudicator found this significant and caused further doubt to his credibility.
(g) In the hearing before the TCAB, the applicant said her girlfriend’s family went to his home to ask about him. Nothing else happened. However, during the interview before the Director, the applicant mentioned an assault on 2/1/2018 at his home by her girlfriend’s family members causing fracture of his brother’s right arm. This omission further affected his credibility.
(h) Given the above inconsistencies, the adjudicator found that the applicant was not truthful. The adjudicator did not accept that there was a relationship with a girlfriend. There was no threat or harm from that girlfriend’s family. There was no problem arising from any inter-caste or inter-religious relationship. The adjudicator concluded that there was no risk of harm if he returned to India.
19.The adjudicator dismissed the appeal on all grounds on 28/12/2018.
Judicial Review
20.The applicant filed the leave application for judicial review on 31/12/2018. In his affirmation in support, he stressed that he was not satisfied with the decision of the TCAB. He wanted to stay in Hong Kong until his problem was solved.
21.In my view, the adjudicator was right in the analysis of the applicant’s evidence. The inconsistencies were significant. Having observed the applicant in the hearing, she was entitled to find that the applicant was not truthful. There is no error of fact and law. The decision is reasonable.
Conclusion
22.The leave application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 30th day of March 2021
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(Mike Mak) |
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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: |
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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)). |
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Sent to the Applicant
on 30 March 2021
Nahar Karamveer Singh alias Karamjit Singh
Applicant’s ref. no:
Nil. |
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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 30 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10280/18/2/164/IN1951
Director of Immigration
Putative Interested Party’s ref. no.:
Q/A T/C 3753/17
(formerly RBCZ 12189/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] He was allowed to stay until 21/8/2015. For the overstaying, he was sentenced to imprisonment for 2 weeks suspended for 3 years.
[2] Rani Wala Khooh, Agwar Ladhai, Jagraon Tehsil, District Ludhiana.
[3] Including Moga City, Dharamkot, Bhatinda and Chandigarh.
[4] Decision of the Director dated 2/2/2018, §§7(27)—7(29).
[5] Decision of the Director dated 2/2/2018, §§18—20.
[6] Decision of the Director dated 2/2/2018, §§21—27, 33—39.
[7] Decision of the Director dated 2/2/2018, §§29—31.
[8] Decision of the Director dated 2/2/2018, §§40—46.
[9] Decision of the Director dated 2/2/2018, §§63—69.
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