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

HCAL 2991/2018

[2021] HKCFI 2943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2991 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 was arrested on 5/2/2017 for overstaying. It transpired that he last arrived at Hong Kong on 11/7/2012.  He lodged the present non-refoulement claim on 7/3/2017.

Background

2.The applicant was born on 5/2/1973 in Punjab, India[1]. He was educated for 10 years.  He had last worked as a DJ in Singapore from 2010 to 2011. He was married with 2 children.  His family was in India.  They have no association with any political party.  

3.His father used to lease 2 plots of farmland to Surat (“S”) and Inderjit (“I”). Both of them were supporters of ADP [2]. In 2005, his father stopped the lease and reserve the farmland for the applicant. “S” and “I” tried hard to persuade his father but of no avail. The relationship became tense.

4.One day in 2005, “S” and “I” approached him at the farmland. They blamed him for ruining the land. The hit him with sticks. They also punched and kicked him. They threatened to kill him if he refused to give the land to them. He had minor injuries and treated by a doctor. It took him 4 days to recover.There were several similar attacks in 2005. His father was also assaulted in one incident. Both his father and him sustained minor injuries.

5.About the end of 2005, his father reported the assaults to the police who refused to register the complaint. He believed that the police were influenced by “S” and “I”. They were wealthy and had associated with a member of the parliament.

6.The harassment continued. In 2008. “S” and “I” came to the farmland with some men armed with a gun. He managed to escape on both occasions. They threatened to kill him. His father sought help from the village elder but “S” and “I” refused to discuss.

7.After his father passed away in 2008, his mother sent him to Raipur [3] to stay with his sister. He assisted his sister’s transportation business for about a year. Meanwhile, his wife and children went to stay with his in-laws. His mother leased the 2 plots of land to another party. He had no knowledge of the new lease. His family were safe then.

8.He was safe until 2010 when some unknown men stopped his truck on the road from Raipur to Punjab. He saw one of them had a gun. They assaulted him until he fainted. He was rescued by his brother-in-law eventually. He was hospitalized for 2 days. It took him 2 weeks to recover. He believed that “S” and “I” had located him in Raipur and sent those men.

9.In December 2010, he went to Singapore for work. He was safe there. However, one day he bumped into some relatives of “S” and “I”, he was scared and moved around in Singapore hiding from them.

10.In September 2011, his visa in Singapore was not extended. He returned to New Delhi and stayed at his friend’s place for 8 months. One day, 5 men arrived at his friend’s place. He however escaped earlier and was unharmed. He believed those men were sent by “S” and “I”. He finally left India on 27/6/2012 to Hong Kong for his safety. He was refused entry. He went to Shenzhen and finally entered Hong Kong on 11/7/2012.

11.His family told him that “S” and “I” still harassed them. He thought there was no use to harass his family as the 2 plots of land were in his name. His wife and children were safe with the in-laws.

12.He asserted that he would be killed before he could seek help from various authorities. He did not have the means to relocate. “S” and “I” would be able to trace him given their close association with that member of the parliament.

The Decision of the Director

13.The Director pointed out the following to conclude that the future risk of harm was low: [4]

(a)  The applicant was assaulted by “S” and “I” on several occasions. He only suffered minor injuries. The worst assault took place in Raipur in 2010. He was not killed despite one of the men had a gun. He could recover in a few days or a couple of weeks. The evidence showed that there was no real intention to kill or seriously harm him. The assailants just wanted to put pressure on him to transfer the land.

(b)  After the land was leased to another party. Nothing happened to that party or his mother. This was inconsistent with the assertion that “S” and “I” wanted the land badly. It was not accepted that there was any real risk to him.

(c)  According to Hindu Succession Law, even if he passed away, “S” and “I” could not obtain the title of the land. It would be inherited by his wife and children. There was no point for “S” and “I” to kill him.

(d)  The dispute in the land was a private matter.  There was no evidence of involvement of public officials or the “ADP”.  He was neither targeted by the “ADP” nor the government. It was unlikely that “S” and “I” could mobilize the party to resolve the private dispute.

(e)  There were COI reporting corruption in all sectors.  There was abuse of power in the police. They were influenced by politicians. There were human rights abuses by the police.  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 failure to investigate.  The NHRC [5] was tasked to investigate human rights violations and promote public awareness.  There was a government helpline receiving complaints.  There was ombudsman organization (Lokpal) to tackle corruption.  There were positive measures to uphold the rule of law.  The Director was satisfied that there was reasonable State protection.

(f)  The Constitution allowed internal movement.  India was a large country with a huge population of 1,300 million.  Delhi was a reasonable option for relocation.  It would be very difficult to locate him.  It would not be unduly harsh for him to relocate given his work experience.

14.The Director dismissed his claim on all grounds on 12/9/2017.

The Decision of TCAB

15.The applicant attended an oral hearing on 26/7/2018.  The TCAB rejected the appeal on 24/12/2018.  The adjudicator found that the applicant was unreliable. There was no real risk of harm. The following is the main reasons:

(a)  The adjudicator pointed out that it was very strange that nothing happened to the applicant’s son who would inherit the land if the applicant was killed. His family was not threatened in India so as to put pressure on the applicant to transfer the land. There was no action to seize the land from the current tenant. This showed that “S” and “I” had no intention to take over the land.

(b)  The evidence about the attack in Raipur in 2010 was vague without any documentary proof such as medical report or police report. The applicant was unable to provide an approximate date and mixed up the year of the incident. He did not understand how the assailants knew his route which he seldom took. The adjudicator pointed out that they could have obtained a thumbprint by force from the applicant. The applicant could not explain. The adjudicator doubted whether this incident occurred.

(c)  It was extraordinary coincidence that he ran into some people in Singapore who happened to be the relatives of “S” and “I”. The applicant explained that they lived in the same village and knew each other’s relatives.

(d)  The evidence of the applicant was unconvincing in relation to the incident in New Delhi. Whether those men asked about him in the locality or they actually went to his friend’s place. If he was not at home, he could not know whether those men had searched his friend’s place.

(e)  It was unconvincing that after his father died, his mother could enter into a lease with another party despite the title had passed to him according to a temporary will. The applicant explained that others recognized her authority to do so.

(f)  While the applicant agreed that his problem might be solved by selling the land, he stressed that it was difficult to start over somewhere else. This contradicted the reason raised with the Director. He said that it was financial obstacle which hindered relocation.

16.Given the above, the adjudicator rejected the assertion that there was physical attack by “S” and “I”. There was no attempt to force him to transfer the title of the land. The adjudicator dismissed the appeal.

Judicial review

17.The applicant applied for leave to apply for judicial review on 28/12/2018. In his supporting affirmation, he reiterated that he had problems in India. He did not point out any error in the decision of the TCAB.

18.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.

19.In my view, the adjudicator had thoroughly analyzed the evidence. I agree with him that the evidence was implausible and unconvincing. It could not support a real risk of harm for non-refoulement protection. 

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

Conclusion

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

Dated the 4^th day of October 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