Case Document

100%Judiciary

HCAL 2992/2018

[2021] HKCFI 2316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2992 of 2018

BETWEEN

	Sandeep Kumar	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	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:

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 12/4/2016 from Zhuhai. He was refused entry. He submitted a non-refoulement claim. While his claim was in process, he withdrew the claim on 9/5/2016.[1] He was removed to Zhuhai the next day.

2.On 12/8/2016, he surrendered to the Immigration Department. He claimed to have sneaked into Hong Kong the day before. He raised the non-refoulement claim in this case on 1/11/2016.

Background

3.The applicant was born on 16/3/1993 in Haryana State, India [2]. He was single. His parents and siblings were in India. He received education up to class 8. He was a waiter for 5 years and a part-time decorator. His family supported the “INC” [3]. He was active in the party in his village. Many villagers followed him to join the “INC”.

4.Associates of the ruling party “BJP” [4] tried to persuade him to join them. They wanted him to vote for the “BJP” in the MLA[5] elections.

5.Before the MLA election in 2014, there was no conflict between the “BJP” and the “INC”. Once the election campaign started, the “BJP” associates tried to disrupt “INC” meetings in which he canvassed votes for the “INC”. Birender Singh and other “BJP” associates threatened that he would be in trouble if he did not join them.

6.One day in 2014, he was intercepted by Birender Singh and others while on his way to work. They assaulted him with fists and kicks. They warned him to stop political activities, or else he would be in danger. He was hospitalized for about 12 days. He reported to the police but there was no action as the police sided with the “BJP”

7.The MLA election was won by a third party [6]. However, Birender Singh and others blamed the applicant for not supporting the “BJP” leading to their defeat in the election. They came to his village and made death threats to him and his family.

8.One day in 2014, a friend told him that the police intended to arrest him for a false accusation. He did not know the detail. He thought it was the “BJP” associates who filed the false accusation.

9.Later, he went to Amritsar and stayed in a Sikh temple for 8 months to avoid the “BJP” associates. He stayed there until sometime in 2015. One day, he received a surprise call from Birender Singh who claimed to be coming for him. He thus went to his sister in Karnal. He was safe there.

10.About 1/1/2016, he went to Dubai with a friend. He could not find any job there. He returned to India on 31/1/2016. He stayed in a hotel in New Delhi to avoid the “BJP” associates. This friend arranged him to leave India in April 2016.

11.While in Hong Kong, his brother told him on the phone that Birender Singh and others still threatened his family. They tried to persuade his brother to join the “BJP”.

12.On 2/8/2017, his father told him on the phone that Birender Singh killed a buffalo[7] belonging to his family on knowing that there would be a gathering of his family.

13.He did not report Birender Singh and others to the police as they were controlled by the “BJP”.

14.He feared that the “BJP” associates would ill-treat him. The police would arrest him if he returned to India.

The Decision of the Director

15.The Director pointed out that the risk of harm would be low for the following reasons:[8]

(a) The applicant was inconsistent in the following aspects between his NCF and his written signification dated 1/11/2016:

i. In his NCF, he alleged that it was Birender Singh who was behind the threats and attacks. However, in his written signification, that person was DD Sharma.

ii. In his NCF, he mentioned nothing about the police harassing his family. He even confirmed that his family was never accused, arrested or harmed whatsoever in India. In his written signification, he stated that the police used to disturb his family and tortured them.

(b) He asserted that some assailants were associates of the “BJP” however he did not mention any details of their background. There was no evidence that the “BJP” was involved or it was their official stance.

(c) There was no official involvement. Apart from the first attack in 2014, he chose not to report the other attacks or threats to any Indian authorities. There was no evidence that the Indian authorities would not take action had he reported.

(d) There was no detail with regard to the false accusation. It was his bare assertion.

(e) There were corruption, human rights violations and police inefficiency, however, there were on-going reforms with improvements. There were different channels established to handle abuse of police actions, such as, complaints to the Superintendent, the Magistrate or the NHRC [9]. Public interest petitions by NGO were allowed in seeking redress of breach of official duty. Special channels were established to tackle corruption and disciplinary functions through the CVC.[10] There were newspaper reports that police officers were prosecuted for abuse of power. 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. He was safe in Karnal and New Delhi. After several years, there was no evidence that the “BJP” associates would still try to locate him. It was not unduly harsh for the applicant to relocate given his background.

16.The Director rejected his claims on all grounds on 6/10/2017.

The Decision of TCAB

17.The adjudicator held an oral hearing on 4/9/2018. He rejected the appeal on 21/12/2018. The adjudicator found that the applicant was not truthful. The account of attacks and threats were his fabrication. The future harm as the applicant asserted was not credible at all. The main reasons were as the following: [11]

(a) In his letter [12] dated 1/11/2016 to the Immigration Department, he named DD Sharma as the person pursuing him. In his NCF, he named that person as Birender Singh.

(b) In his notice of appeal, he mentioned another person Varinder Sinum, who worked under DD Sharma, tried to kill him.[13]

(c) The applicant could not remember the chronology of events. He accepted the Election Commission of India announced on 12/9/2014 that the MLA election would be held in Haryana State on 15/10/2014. The result would be announced on 19/10/2014.

i. According to the applicant, the harassment and threats should have occurred after the announcement of election was made as there was no conflict before the election campaign. In other words, from 12/9/2014 to the end of that year.

ii. However, the applicant told the adjudicator that he obtained his passport on 24/7/2014 with a plan to go to a safe country. When the adjudicator pointed out that the conflict had not yet started, the applicant said he did go to Amritsar to avoid his problem.

iii. The applicant further told the adjudicator that after he obtained his passport, he went to Chennai in Tamil Nadu and applied for a visa to Malaysia. He obtained the visa on 26/11/2014. He stayed in Chennai for over one month. He never mentioned this in his NCF.

iv. The applicant maintained that it was his friend who applied the visa to Malaysia on his behalf. The adjudicator pointed out that the visa was for him to work in Malaysia as a construction worker, he insisted that it was done by his friend on his behalf. The adjudicator found this wholly incredible.

v. The applicant told the adjudicator that he refused to go to Malaysia with his friend. He had no problem in India. The adjudicator found this unreasonable as the harassment and threats had already taken place before he had the visa to Malaysia.

(d) The applicant told the adjudicator that his friend overheard a group of people discussing about the false accusation against him and that the police was after him. He knew nothing about the nature of the false accusation. He did not know why the police had made no attempt to arrest him. The adjudicator found this incredible.

(e) The applicant left the Sikh temple at Amristar to his sister’s home at Karnal on being discovered by Birender Singh sometime in 2015. The adjudicator pointed out that Amristar was 300 km while Karnal was only 25 km away from his home area kurukshetra.

(f) The applicant said he obtained his passport while staying in his sister’s house. The adjudicator pointed out that he obtained his passport in July 2014. It was nearly a year before he went to his sister’s house. The applicant could not explain.

(g) The applicant was in Dubai from 1/1/2016 to 31/1/2016. He could not have participated in the 2016 election as he alleged in his letter dated 12/4/2016 to the Director. That letter was in support of his subsequent claim. In any event, he confirmed that the 2014 election was the only election he participated. [14]

(h) In the same letter, he asserted that he was attacked on his way home in mid-February 2016. This contradicted his evidence that after he returned from Dubai in February 2016, he stayed in a hotel in New Delhi.[15] In fact, he did not mention any attack around that time in his NCF. The adjudicator rejected this evidence.

(i) As to the evidence of his father, the adjudicator found that it was not his personal knowledge. The adjudicator put no weight on it.

(j) The adjudicator rejected the appeal on all grounds.

Judicial Review

18.The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he did not specify any error of the TCAB decision.

19.It is for the TCAB to determine credibility and the facts of the claim. In general, this court would not interfere. In judicial review, it is for this court to determine whether there is any error of law or procedures. Whether the TCAB decision was rational.

20.I agree with the analysis of the adjudicator. There are serious discrepancies in the evidence of the applicant. He is not credible. In my judgment, there is no error of law or procedure. The TCAB decision is reasonable.

CONCLUSION

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

Dated the 10^th day of August 2021.

	(Mike Mak)
	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:
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)).		Sent to the Applicant on 10 August 2021 Sandeep Kumar Applicant’s ref. no: Nil.		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 10 August 2021 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8846/17/10/176/IN1671 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1634/17 (formerly RBCZ 13521/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] While in CIC, he learned from a friend that the Bharatiya Janata Party (“BJP”) no longer existed. Birender Singh had left India. It was safe for him to return to India. He thus withdrew his claim and was repatriated to Zhuhai. He later learned from his family and friends that Birender Singh had returned to India. The “BJP” would take revenge on him. The police would arrest him for a false case. He stayed in Zhuhai for 3 months and sneaked into Hong Kong on 11/8/2016.

[2] Village Urnai, The Pehowa, Kurukshetra.

[3] Indian National Congress.

[4] “BJP” is Bharatiya Janata Party.

[5] Member of the Legislative Assembly elections.

[6] Jaswinder Singh Sandhu.

[7] It was worth 70,000 Indian Rupees.

[8] Decision of the Director dated 6/10/2017, §§27—41.

[9] National Human Rights Commission.

[10] Central Vigilance Commission.

[11] Decision of the TCAB dated 21/12/2018, §§56—68.

[12] Exhibit “SK”—hearing bundle—page 43.

[13] Exhibit “SK”—hearing bundle—page 36.