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

HCAL 3016/2018

[2021] HKCFI 2512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3016 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 sneaked into Hong Kong on 26/10/2015 from Shenzhen.  He was arrested on the same day.  He filed the present non-refoulement claim on 28/10/2015.

Background [1]

2.The applicant was born on 2/2/1992 in Kukar Pind, Punjab, India.  He was single.  His parents lived in India.  He received education for 12 years.  His mother was the village head from 2005-2010.  He and his mother were affiliated to Akali Dal party (“AK”).

3.During the 2010 election of the village head, JS tried to control the votes by unlawful means.  His mother was one of the candidates.  He therefore confronted JS who subsequently won the election.  JS was a rich man in Kukar village.  He associated with the Congress party, some gangsters and the police. After the election, he continued to confront JS and his men as they were involved in illegal activities.

4.In mid-2012, he was attacked by several men on his way home.  They kicked and punched him causing minor injuries.  He was treated by a doctor.  Those men told him to stop confronting JS or else they would kill him.  His mother reported to the local police but they took no action.  He reported to the village council but there was no follow up.  He thought it was due to the influence of JS.

5.In 2014, he and his cousin were attacked by JS and others with hockey sticks and machetes.  A fight ensured.  His cousin, who carried a licensed gun, fired into the air and frightened them off.  On leaving, they threatened to kill him and his cousin.

6.During the village head election around April 2015, his cousin was shot dead by JS on the street [2]. JS informed him on the phone threatening to kill him.  His mother eventually withdrew from the election.

7.In May 2015, he fled to New Delhi and stayed there for 3 months.  He then went to Thailand in August and to Hong Kong.  He was refused entry to Hong Kong on 6/8/2015.  He returned to Gurgaon city, India.  He stayed there for about 3 months.  He was safe.

8.He left India for Guangdong PRC by air on 24/10/2015 through official channel.  He took a bus to Shenzhen and sneaked into Hong Kong on 26/10/2015.

9.He could not relocate as JS could locate him in India.  The police were corrupt. He had not heard of any complaint channels such as CVC [3]or ‘181 Punjab Police Helpline’.

10.Even though he had not participated in any activities for “AK”, the risk of harm was there.  JS continued to stalk his home and threatened his parents.

The Decision of the Director

11.The Director found that the risk of harm was low for the following main reasons:[4]

(a)  There was no assault after the 2010 village head election despite the applicant continued to confront JS.  Even during the assault in mid-2012, he only sustained minor injuries.  He was not assaulted after the murder of his cousin in 2015.  As a whole, there was no injury amounted to “a minimum level of severity”.

(b)  After the murder of his cousin, he stayed at New Delhi for 3 months.  He was safe.  He attempted to enter Hong Kong though unsuccessful in August 2015.  He then returned to Gurgaon city.  Later in October, he flew to China and eventually sneaked into Hong Kong.  There was no further injury to him nor was his mind appeared disturbed.

(c)  He only assisted his mother during the 2010 and 2015 election.  His conduct had no direct connection with “AK” party.  There was no evidence that JS attacked him because of political issues or instigated by the Congress party.

(d)  There was no evidence that JS had any intention to kill him.  Had they wanted to do so, they could have plenty of chances from 2010—2015.

(e)  The applicant was safe while in New Delhi and Gurgaon.  He could leave India smoothly and was not targeted.  There was no official involvement.  The stalking by JS and his men was localized at Kukar village.

12.The Director accepted that there were problems of corruption, human right violations, and political pressure on the police.  However, there were recent practical reforms in India.  There was effort to bring police officers to justice and enhance accountability.  Special channels were established to tackle corruption (Central Vigilance Commission).  An aggrieved person could complain to the Superintendent if a proper investigation was not carried out.  The NHRC [5] and local Human Rights Commissions were tasked to tackle human rights abuses.  Ombudsman organization was set up to receive complaints against officers.  The Director was satisfied that there was reasonable State protection.

13.The Indian law allowed internal relocation.  India was a large country with a population of 1.2 billion.  There were reasonable options for relocation, e.g., Kolkata and Mumbai.  It would be difficult for JS to locate the applicant.  It was not unduly harsh for him to relocate given his background.

14.The Director dismissed his non-refoulement claim on all grounds on 25/4/2018.[6]

The Decision of TCAB

15.The adjudicator held an oral hearing on 7/11/2018.  The applicant gave evidence and answered questions.

16.The adjudicator concluded that the applicant’s evidence was not credible. She pointed out the following reasons:[7]

(a)  According to the applicant, JS was rich and successful in the Kukar village.  He was elected the village head in 2010.  He controlled the village council and had connections throughout India.  However, during the 2015 election, JS focused on harassing the applicant instead of his mother who was a candidate of the election.  It was even more unconvincing as the applicant had no involvement with the “AK” party then.

(b)  The applicant was able to stay safely for 3 months in New Delhi.  He could travel to Thailand and back to Gurgaon city.  JS only lingered around his home and threatened his parents.  All these contradicted the applicant’s assertion that JS could locate him anywhere in India.

(c)  The applicant did not report to the police after the murder of his cousin.  Despite his assertion of corruption, there were other channels or authorities which he could resort to.  His failure to do so undermined his credibility.

(d)  The applicant did not leave India immediately after the murder of his cousin.  He stayed at New Delhi for 3 months.  This was unconvincing given his assertion of imminent threat to his life.

(e)  His parents continued to live at the village.  They were only threatened by JS and his gang.

17.The adjudicator opined that the evidence of the applicant was vague and fanciful.  It was limited in details.  He knew very little about JS apart from some broad statements.  The adjudicator concluded that there was no real risk of death or harm.

18.The adjudicator dismissed his appeal on 24/12/2018.  The applicant failed on all applicable grounds.[8]

Judicial Review

19.The applicant filed the leave application for judicial review on 31/12/2018. In his supporting affirmation, he pointed out that his life was in danger.

20.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. 

21.The evidence of the applicant was without details.  It was not credible. I agree with the findings of the adjudicator.  She was right to reject his factual basis.

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

Conclusion

23.The application 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   

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