Case Document

100%Judiciary

HCAL 2475/2018

[2021] HKCFI 2513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2475 of 2018

BETWEEN

	Rahul	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 arrived at Hong Kong on 6/3/2016. He was allowed to stay until 20/3/2016. He overstayed [1] and surrendered to the Immigration Department on 22/3/2016. He filed the non-refoulement claim in this case on 10/8/2016 and 2/9/2016.

Background

2.The applicant was born on 9/10/1993 in Patiala, Punjab, India. He received education for about 13 years. He was single. He was a salesman in jewelry for 10 months. His family was in India. He and his family had not joined any organizations or groups.

3.He developed a love affair with Arushi Aggarwal (“A”) since he was 10 years old. They grew up together in Patiala. They decided to get marry after secondary school. The father of “A” objected. He was a rich man associated with the “SAD” [2]. He was also associated with the police.

4.In 2013, the father of “A” agreed with the marriage provided it was after the completion of her university studies in 2014. They started planning their marriage in 2014.

5.In early 2014, he met “A” at a shopping mall. Her father suddenly appeared and took her away. Later, her father, her brothers and 5 other men came to his home. They threatened him to stop seeing “A” or else they would kill him. They slapped him and his father. He did not consult a doctor. He recovered in 3 days.

6.One day in March 2015, he had arranged to meet “A” outside the college gate. Her brother and other men suddenly appeared. They were armed with hockey sticks and iron rods. He fled but was caught in a park. He was assaulted and badly injured. Someone took him to a hospital for treatment. He was hospitalized for a week.

7.One week after his discharge, he learned from a friend that “A” was detained at home as she tried to flee her home. He was worried and left Patiala in April 2015. He went to Delhi and found a job as a salesman of jewelry.

8.He was attacked twice in Delhi by some unknown men. On one occasion, he was hit from behind but it was not serious. He did not need medical treatment. The other occasion he was injured by sharp objects and needed suturing. He recovered in a month. He suspected that the attackers were relatives of “A” though he could not recognize anyone of them.

9.He had reported the first assault to the police who refused to investigate. As to the second assault, the police released the suspects shortly after their arrest. They told his father to withdraw the complaint. In both cases, his father did not complain further. He suspected that the father of “A” had influenced the police.

10.In March 2016, he left India for Hong Kong on the advice of her father. His family informed him that “A” was in a coma and could not talk. He had lost contact with “A” for over a year.

11.He and his family would be in trouble if he complained through other channels. He rejected the possibility to relocate to Mumbai or Kolkata.

The Decision of the Director

12.The Director had considered the evidence of the applicant and found that there was no real risk of harm: [3]

(a) The applicant was threatened and attacked by the father of “A” and her family. He still tried to contact “A” secretly. He was injured in a park and attacked at Delhi, the injuries did not amount to ‘a minimum level of severity’. Given the evidence, there was no intention for the father of “A” to kill him.

(b) The dispute was a private matter. There was no official involvement nor was it connected with the “SAD”. He did not know the position held by the father of “A” in “SAD”. It was unlikely that her father would deploy resources to locate him.

(c) Even accepting the misconduct of the police officers locally, it should not be taken that the Indian authorities or the police in general would refuse to investigate and protect him. There was no evidence that any government official was involved. In fact, he could depart India without any difficulties. He was not targeted.

(d) The Director had considered relevant COI. There were corruption, abuse of human rights and ineffective law enforcement. Nevertheless, there were continuous reforms with improvements in recent years. The government had measures to improve efficiency in the police. An aggrieved party might take his case to the Superintendent or a Magistrate. NGO might assist in public interest petition against officials for corruption and bias. There were ombudsman organization (“Lokpal”) to investigate public officials. Police Accountability Commissions were established to investigate abuse of power. Special channels such as CVC [4] were established to tackle corruption. There were news reports about 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.

(e) The law in India allowed internal relocation. India was a large country with a huge population. The Director found that Kolkata and Mumbai were viable options for relocation. It was not unduly harsh for the applicant to relocate given his experience.

13.The Director rejected his claims on all grounds on 21/11/2017. [5]

The Decision of TCAB

14.The adjudicator held an oral hearing on 17/9/2018. The adjudicator rejected the appeal on 1/11/2018. The adjudicator found that there was no risk of harm if the applicant returned to India. The main reasons were: [6]

(a) The applicant told the adjudicator that the situation in India had changed since he filed the non-refoulement claim. His ex-girlfriend “A” was no longer interested in him.

(b) He also admitted to the adjudicator that he was no longer interested in “A”. He had a new girlfriend in Hong Kong who was from the Philippines.

(c) He confirmed to the adjudicator that there would be no difficulties if he returned to India. His family informed him that the dispute was a past event. He did not have fear of harm from the family of “A”.

(d) He indicated that he was happy to return to India in a short time. He stressed that he was no longer at risk.

(e) He did not take any steps to ascertain the influence of the family of “A” nor would he be interested in identifying the assailants in Delhi.

15.Given the frank and open testimony, the adjudicator accepted that the applicant was no longer at risk in India. She dismissed the appeal on all grounds on 1/11/2018. [7]

Judicial Review

16.The applicant filed the leave application on 6/11/2018. In his affirmation, he pointed out that he was not satisfied with the TCAB decision.

17.Later, in response to the letter [8] from this court for preparation of the leave application, he reiterated his grounds of relief in a letter dated 20/1/2021. In gist, he complained:

a. The TCAB decision was irrational in the public law sense.

b. There were procedural errors or unfairness.

c. The adjudicator failed to meet the greater care and duty owed to an unrepresented claimant.

d. The adjudicator had not turned his mind to the BOR 2 risk.

e. The adjudicator relied on sources of news which was not officially recognized or it was hearsay. The adjudicator relied on the COI which were outdated.

f. His enemy was influential and powerful and was connected with the “BJP”. His enemy was still looking for him.

g. The Indian police would not assist him as they were influenced by the “BJP” which was the ruling party. He would be persecuted.

18.He attended a hearing held on 22/6/2021 before this court. He was assisted by a Punjabi interpreter. He had nothing to update. This court reminded him of the admission he made to the adjudicator, he then indicated that his girlfriend “A” was still interested in him. A friend in India told him about this last year in 2020. He had broken up with his girlfriend in Hong Kong. This was contrary to his admission to the TCAB as set out in paragraph 14 above.

19.The applicant retracted his admission to the TCAB. I have the following observations:

a. The basis of his retraction was of paramount importance. It would critically affect the outcome of his claim. He was informed by a friend in 2020.

b. In his letter dated 20/1/2021, when he submitted the grounds of relief, he mentioned nothing about this basis of retraction. By that time, he should have known about it already.

c. He did not make any enquiry with his family who informed him of the resolution of the risk earlier on. He did not attempt to contact “A” at all. He just accepted the information from his friend.

d. During the hearing before the TCAB on 17/9/2018, he had stressed that “A” had no interest in him. He had no interest in “A” also. Nearly 3 years afterwards, “A” rekindled her interest in him. In the absence of any explanation, the change of “A” defied common sense.

e. Initially, he had nothing to update before this court. It was only after this court reminded him of the admissions to the TCAB that he put forward the basis of retraction. In fact, he had not explained to this court why he was still interested in “A” after all these years. His retraction appeared more dubious when he indicated to this court that he had broken up with his girlfriend in Hong Kong.

20.In my view, the applicant is not credible. I reject the basis of retraction.

21.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.

22.The adjudicator accepted the applicant’s evidence as he was frank in giving evidence then. In my view, there was no longer any real risk of harm as the applicant admitted. It was a proper ground to dismiss the appeal.

23.As to the other complaints by the applicant against the TCAB set out in the letter dated 20/1/2021, the allegations did not occur as the adjudicator needed not consider the merits of the claim. The applicant’s complaints appeared irrelevant and misleading.

24.According to the adjudicator, the factual basis of the claim before the TCAB was substantially the same as that found by the Director.[9] In my view, had the TCAB considered those facts, the claim would inevitably be dismissed.

25.In my judgment, there is no error of law or procedure. The TCAB decision is reasonable.

CONCLUSION

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

Dated the 26^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 26 August 2021 Rahul 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 26 August 2021 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9373/17/12/40/IN1773 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2644/17 (formerly RBCZ/13227/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)