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

HCAL 3006/2018

[2021] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3006 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 arrived at Hong Kong on 8/11/2009.  He was permitted to stay as a visitor for 2 weeks.  He lodged a torture claim on 16/11/2009.  He surrendered to the Immigration on 4/1/2010 for overstaying.  He was released on bail on 2/3/2010. Meanwhile his torture claim was rejected on 15/9/2010.  He subsequently lodged the non-refoulement claim in this case on 2/10/2013.[1]  It would be assessed on BOR 2, BOR 3 and persecution risks.

2.The applicant had two criminal convictions while he stayed in Hong Kong. [2]

Background

3.The applicant was born on 8/2/1989 in District Amritsar, Punjab, India[3]. He was educated up to class 12.  He had no work experience in India.  He was single. His father died in 1993.  His mother and sister were in India [4].

4.His father was a Sikh who supported the idea of an independent Punjab province. His father thus joined the Khalsa group.  There was another Sikh group—Party Akalidal—which opposed the idea of independent Punjab.  His father was assassinated by B and K in 1993 during the political turmoil.  He had once joined the Khalsa group but left the group in 1994.

5.In 2007, the applicant inherited 3 acres of farmland belonged to his father when he reached 18 years of age.  His family lived on the crops grown on that plot of land.

6.Around April 2007, B, K and other men from the Party Akalidal came to his farmland.  They offered to purchase his land but the offer was below market value.  They also threatened him to sell the land and not to involve in politics, or else, they would kill him.  Since then, there were threatening calls.  He thought those men worried that people might be influenced by him because of his father’s reputation in local politics.

7.During the district election around May 2009, he assisted his friend in the polling station in village Bhure Gill.  One day, 4-5 men came to the polling station and assaulted him with punches and kicks for 5 minutes.  He believed they were Party Akalidal supporters.  He did not need treatment as the injuries were minor.  He did not report to the police.  Eventually, the candidate from Party Akalidal won.

8.After the assault, the whole family moved to his Aunt’s home. He was safe there. However, he was afraid of being located. He decided to leave India.

9.On 7/11/2009, he took a flight from New Delhi to Hong Kong.  There was no problem leaving India.  After he left, the farmland was leased to the neighbor.  His mother and sister were safe as they were not the targets.

10.He thought the supporters of Party Akalidal had connection with the ruling party—Party Congress.  He feared that they might kill him if he returned.  He did not report to the police or complain to higher authorities.  The police would only act under the instruction of the ruling party.

11.He could not relocate as Party Akalidal would be able to locate him.  It was not safe in any part of India.

12.After he went to Hong Kong, his mother told him B and K were looking for him.   The police also asked about him.[5]

The Decision of the Director

13.The Director pointed out the following to conclude that the future risk of harm was low [6]:

(a)  The applicant was threatened to sell his farmland.  He was not assaulted during this incident.  During the district election, he was assaulted by several men but the injuries were minor.  He did not need treatment.  As a whole, the ill-treatment inflicted on him did not amount to a minimum level of severity.

(b)  Although he recognized some assailants were supporters of Party Akalidal, there was no evidence that the Party instigated the attack.  At that time, the applicant was not active in politics.  It was far-fetched to assert that the Party wanted to harm him.

(c)  While he assisted the other candidate, the Party Akalidal candidate won the District election in 2009 nevertheless.  There was no reason that Party Akalidal would target him for worrying his influence related to his father.

(d)  The land was still under his name after he went to Hong Kong. It was leased to his neighbor.  There was no evidence that the supporters of Party Akalidal could do anything in relation to the land.

(e)  The applicant had already left India for 8 years.  The hostility should have been dissipated.  There was no evidence why the police asked about him. It was just his speculation that they had an intent to harm him.

(f)  The applicant chose not to report to the police.  There was no evidence that the government or the police were reluctant to assist if he had reported.  There was no evidence that the government failed to take due diligence to protect the people in India.

(g)  There was no evidence that any public official was involved. In any event, the land dispute was a private matter.  He was not targeted.

14.There were COI reporting problems in corruption and police inefficiency. There was abuse of power.  There was human rights abuse including arbitrary detention, bribery and torture.  On the other hand, there were COI which showed measures to improve efficiency in the police.  A complainant might take his case further to the Superintendent or even a Magistrate on the failure to investigate.  The NHRC was tasked to investigate human rights violations and promote public awareness.  The Central Vigilance Commission tackled corruption. The National Legal Services Authority arrange legal aid for the poor.  There were positive measures to uphold the rule of law.  The Director was satisfied that there was reasonable State protection. [7]

15.The Director found that there was reasonable opportunity for internal relocation.  The Constitution allowed internal movement.  India was large with a huge population.  There were big cities such as Delhi and Mumbai.  It would be very difficult to locate him.  It would not be unduly harsh for him to relocate.[8]

16.The Director dismissed his claim on all grounds on 20/3/2017.

The Decision of TCAB

17.The applicant attended oral hearings on 22 & 24/10/2018. Parties agreed that the appeal before the TCAB did not concern the torture claim which was dismissed by the Director on 15/9/2010.  In this hearing, the applicant was assisted by a Punjabi interpreter.  The applicant indicated that he would adopt the evidence in the appeal bundle.  He elected not to give evidence albeit that he was willing to answer questions to clarify some background facts. [9]

18.The TCAB rejected the appeal on 7/12/2018.  The adjudicator found that the applicant was not truthful in his claim.  She rejected the background facts as the applicant claimed.  She concluded that the applicant would not face a real risk of harm for the following reasons:

(a)  Since the father of the applicant went on hiding from 1984—1993 after the Golden Temple massacre, the applicant’s family did not know his whereabouts. His mother only learned of his father’s death from others. Given this background, it was impossible that she could have given birth to the applicant and his sister in 1989 and 1990 respectively.  During the oral hearing, the applicant explained that he did not know the reason.  His mother might have hidden some information from him.  The adjudicator did not accept that explanation given the importance of this issue.[10]

(b)  There was no evidence to support the applicant’s assertion that Party Akalidal [11] was against the idea of an independent Punjab province.  There was no evidence to support the existence of the Khalsa group which the applicant claimed to have once joined.  On the contrary according to the COI, Party Akalidal supported a separate Sikh State. This fundamentally contradicted the applicant’s assertion and damaged his credibility.[12]

(c)  According to the relevant COI, there was no district election in May 2009 in Punjab.  Instead, there was a general election in India with many candidates and parties involved.  The adjudicator doubted the evidence of the applicant in this regard.[13]

(d)  The adjudicator pointed out that it was odd that the applicant’s father had already been a member of the Congress in 1983 at the age of 17 as he was born in 1966 according to his 2010 NCF.[14]

(e)  The applicant said in his 2010 NCF that the supporters of Party Akalidal came to his home a couple of times but during his interview before the Director, he said they came to his home only once.[15]

(f)  According to the 2010 NCF, the applicant stated that he resided at his aunt’s place from 2006—2009.  His aunt’s home was 20 miles away from his home.  This contradicted his evidence that he was threatened to sell his land at his own home in 2007. [16]

(g)  The applicant claimed that he inherited the land in 2007 when he reached 18 years of age.  Before that, his mother owned the land.  However, according to the land document filed, his name was added in 2004—2005 as the owner.  The adjudicator pointed out that the explanation of the applicant was confusing and evasive.  She rejected the applicant’s explanation.  She found that the applicant was already the legal owner since 2004—2005.  This fact undermined his credibility.[17]

(h)  It was basically hearsay that the applicant’s father was assassinated.  The adjudicator did not accept this was connected with Party Akalidal.  She did not accept that it was connected with the membership of the Khalsa group or the central government or a land dispute as the applicant claimed.

(i)  Had there been such a land dispute in 1993, the supporters of Party Akalidal would not have waited for 14 years before they offered to purchase the land in 2007.  In fact, his mother, who allegedly owned the land, was never harassed to sell the land.  It was even more incredible that they resorted to take the land by force in April 2017.[18]

19.Given the analysis above, the adjudicator found that the applicant was not truthful.  She rejected the factual basis of the claim.  She did not think the issues of State protection or relocation arose[19]. She concluded that the applicant failed to establish the non-refoulement claim on BOR 2, BOR 3 and persecution risk.[20]

Judicial review

20.The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he pointed out that the decision of the TCAB was unfair and unreasonable.

21.In judicial review, the task of 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.  In general, this court would not interfere.

22.The applicant had not pointed out any error in the decision of the TCAB.  In my view, the adjudicator had fairly conducted the oral hearings. The applicant was given a fair chance to clarify some aspects of his claim as he wished.  It was his election not to give evidence on other details.

23.The analysis by the adjudicator was thorough and correct.  I agree with her that there were fundamental inconsistencies in the applicant’s evidence.  He was not truthful.

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

Conclusion

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

Dated the 7^th day of April 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