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

HCAL 320/2021

[2021] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 320 of 2021

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 was arrested by the police on 23/12/2019 for illegal remaining and other offences[1]. He claimed to have sneaked into Hong Kong by boat in August 2018 from the Mainland.  He filed the non-refoulement claim in this case on 4/3/2020 and 17/3/2020.

Background

2.The applicant was born on 19/4/1996 in Punjab, India[2]. He received education for about 12 years.  He was a Sikh.  He was single.  His parents and sister were in India.  One brother was in Hong Kong.  He worked at a factory from 2012—2017.  He and his family had not joined any organization or groups.

3.In 2009, his grandfather Ajit Singh (“AS”) killed his brother Gurcharan Singh (“GS”) because of a land dispute.  The family of “GS” tried to take revenge.  “AS” feared about his safety and left the home village with the applicant’s brother.  The applicant continued to live with his parents in his home village.  From 2012 onwards, the grandson of GS, Gurjant Singh (“GU”) started threatening to kill the applicant.

4.“GU” was a member of the SAD.[3]  He did not know his rank in that party.  He believed “GU” was powerful and influential given the connections in the SAD.  “GU” and his men used to come to his home looking for him.  He believed “GU” had an extensive network.

5.One day around mid-2012, “GU” and his men confronted the applicant on the street.  They were armed with swords and choppers.  They assaulted him causing open wounds at his hand and ankle.  He also had a fractured left ring finger.  “GU” threatened to kill him next time.  “GU” wanted to take revenge for his grandfather.  He was subsequently hospitalized for 2 days receiving treatment.  It took him a month to recover.  He reported to the local police station after his discharge from the hospital.  He gave a statement to the officer.  However, he believed there was no investigation.

6.One to two days after the incident, he left his home village and went to Ludhiana city.  He stayed with a friend.  He worked at a factory for 5-6 years. He had not encountered “GU” and his men again.  However, “GU” and his men kept on asking the applicant’s parents about the applicant.  They did not harm the applicant’s parents.  The applicant felt unsafe in India.  His friend arranged a visa for him to leave India.  He paid $20,000 Indian Rupees for that.

7.Around January 2018, he took a flight to China.  He stayed at Shenzhen for 8 months.  He learned from friends about protection in Hong Kong.  He then sneaked into Hong Kong around August 2018.  He was arrested on 23/12/2019.

8.Although his brother was in Hong Kong, they rarely contacted each other. He believed “GU” was looking for him to date.  He did not think the complaint channels in India were useful.  Somehow, “GU” would be able to locate him in India.  It was not viable for him to relocate.  He was in fear of being killed.

The Decision of the Director

9.The Director had considered the evidence of the applicant and found that the risk of harm was low:

(a)  Since the applicant’s grandfather fled the home village, the applicant continued to live there with his parents.  There was only one attack in 2012.  They had not taken the chance to kill the applicant.  They left after causing some injuries to the applicant.  The ill-treatment in the whole period did not amount to “a minimum level of severity”.  “GU” and his men had no intention to kill or inflict severe harm on the applicant.

(b)  The applicant was able to stay away from “GU” and his men while in Ludhiana City.  He worked in a factory for 5-6 years without encountering “GU”.  His delay in fleeing India was inconsistent with the fear of imminent risk to his life.

(c)  There was no evidence that any government official was involved.  There was no evidence that the SAD was involved.  The fact that he was safe in Ludhiana City indicated that the influence of “GU” was localized.

(d)  He alleged that the police did not assist.  There was no evidence in that aspect.  Even accepting misconduct of the local police officer, it should not be taken that the Indian authorities or police would tolerate this kind of conduct.  There was no evidence that any government official was involved.  In fact, he could depart India without any difficulties.  He was not targeted.

10.The Director had considered some relevant COI.  There were problems of corruption, abuse of human rights and inefficient law enforcement.  Nevertheless, there were continuous reforms with improvements in recent years.  The government had measures to improve efficiency in the police and the judiciary.  NGO might assist the public to file petition against officials for corruption and bias.  There were complaint channels to address public grievances.  There were specific legislations against corruption and money laundering.  Special channels such as the CVC[4] were established to tackle corruption.  There were news reports revealing actions taken by the government against officers and political leaders.  There was no evidence that the government was unable or unwilling to discharge its duties.  The Director was satisfied that there was reasonable State protection.

11.The law in India allowed internal relocation.  India was a large country with a huge population.  The Director found that New Delhi and Mumbai were viable alternatives for relocation.  He was safe in Ludhiana City for 6 years.  This showed that “GU” was not able to locate the applicant anywhere in India.  It was not unduly harsh for the applicant to relocate given his experience.

12.The Director rejected his claims on all grounds on 15/6/2020.

The Decision of TCAB

13.The adjudicator held an oral hearing on 9/11/2020.  The adjudicator rejected the appeal on 3/3/2021.  The adjudicator found that there was no risk of harm if the applicant returned to India.  The main reasons were as the following:

(a)  In his oral evidence before the TCAB, the applicant mentioned that his father was also threatened and fled the home village.  This was inconsistent with his NCF in which the applicant said he continued to live with his parents after his grandfather and the applicant’s brother left the home village. The applicant could not explain.

(b)  In his oral evidence before the TCAB, the applicant said he was also threatened in 2009.  However, in his NCF, he said “GU” started to threaten him in 2012.  The applicant could not explain the inconsistency.

(c)  There was no evidence that “GU” and his men were in the capacity of any public official or exercise any official duties.

(d)  The applicant had not suffered any severe injury which was within the definition of “torture” under s. 37U (1) of the Immigration Ordinance.  He was safe for 5-6 years while in Ludhiana City.  The pain and suffering was not inflicted for any of the purposes under s.37U (1).

(e)  The adjudicator was satisfied that there was reasonable State protection.  There were viable relocation options to Mumbai and New Delhi.

(f)  The applicant indicated that he had no fear of the government.  He was in fear of harm or death from “GU” only.  

(g)  The applicant did not suffer any injury amounting to “a minimum level of severity”.

(h)  The fear of the applicant arose from a family dispute.  It had nothing to do with any grounds under the Refugee Convention.

14.The adjudicator dismissed the appeal on all grounds.

Judicial Review

15.The applicant applied for leave to apply for judicial review on 10/3/2021.  In his supporting affirmation, he pointed out that the decisions of the adjudicator and the Director were not reasonable and not fair.

16.He attended a hearing held on 1/6/2021 before this court[5]. He had nothing to update.

17.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.  In general, this court would not interfere.

18.I agree with the adjudicator that the evidence of the applicant is not credible.  The applicant failed to establish any of the claim.

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

CONCLUSION

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

Dated the 27^th day of July 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