Case Document

100%Judiciary

HCAL 813/2019

[2021] HKCFI 3601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 813 of 2019

____________________

BETWEEN
	Ashwani 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 documents and the Applicant being absent from the 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 3/5/2016. He surrendered to the Immigration Department on 6/5/2016. He filed the non-refoulement claim in this case on 5/7/2016.

BACKGROUND

2.The applicant was born on 3/5/1990 in Panjab, India[1]. He was single and a Hindu. His family lived in India. He received education for 12 years. He was a part-time supervisor for 2 years. He had never been charged or imprisoned in India.

3.Around 2015, he fell in love with a Muslim girl Zoya (“Z”) in college. He got “Z” pregnant. She then had an abortion.

4.He knew Z’s father was a member of Jalandhar Legislative Assembly. Some of the relatives of “Z” associated with local gangsters.

5.On 1/1/2016, he and Z filed a marriage petition in the local court. Z’s brother objected to the marriage as he was a Hindu. In the same evening, Z’s brother broke into his home as he refused to open the door. Z’s brother confronted his father. Her brother threatened the applicant’s father that the applicant would be killed.

6.He immediately fled to Tanda [2] and stayed with his uncle. Z’s brother managed to locate him. The gang assaulted him with hockey sticks. He was later treated in a local medical shop. It took him 12 days to recover. He then moved to his cousin’s place in Tanda and stayed safely there until the end of March 2016. In the meantime, his parents moved to New Delhi. They were not attacked.

7.In late March 2016, he left India using valid passport and visa for Guangzhou by air. He did not encounter any problem. He stayed at Guangzhou for about a month. He attempted to go to Macau in April but unsuccessful. He sneaked into Hong Kong by boat in early May 2016.

8.His friend told him that Z’s brother still asked about him. He did not think the police would assist given that Z’s father was a member of the local legislative assembly. He could not afford a bribe. He feared that he might be harmed or killed by Z’s family if refouled.

The Decision of the Director

9.The Director found that there was no real risk of harm for the following reasons:

(a)   There was only one occasion of assault. He only needed treatment at a medical shop and recovered in 12 days. The injuries did not amount to “a minimum level of severity”.

(b)   There was no evidence that Z’s family had continued to attack him. They only wanted to scare him. He had been in Hong Kong for more than two years and did not contact Z. There was no reason for Z’s family to insist on pursuing the matter.

(c)   This was a personal dispute. There was no reason for Z’s father to mobilize official resources to deal with it. There was no evidence that Z’s father had used his status to deal with this dispute. There was no evidence that the State was involved. There was no breakdown in law and order in India resulting in inability to protect citizens.

(d)   He was able to stay safely with his cousin in Tanda for 2 months before leaving India. The influence of Z’s father was not far-reaching.

10.The Director accepted that there were problems of corruption, human right violations, abuse of power and ineffective police, however, there were on-going reforms in India. There was effort by individuals and NGO to bring police officers to justice and enhance accountability. Special channels were established to tackle corruption (e.g. Central Vigilance Commission). One could complain to the Superintendent if a proper investigation was not carried out. One could file a report to the NHRC.[3] The Director was satisfied that there was reasonable State protection.

11.The Director pointed out that the Indian law allowed internal relocation. India was a large country with a huge population. There were reasonable options for relocation, e.g. Delhi and Mumbai. These cities could provide opportunities for the applicant to earn a living. It was not unduly harsh for the applicant to relocate given his background.

12.The Director dismissed his non-refoulement claim on all grounds on 12/4/2018.

The Decision of TCAB

13.The adjudicator held an oral hearing on 24/1/2019. The applicant was assisted by an interpreter. The applicant gave evidence and answered questions.

14.The adjudicator concluded that the applicant was not credible. The main reasons were as the following:

(a)   The applicant was unable to recall when Z got pregnant.

(b)   The applicant said Z’s family learned about the relationship around October 2015. It was not reasonable that they only took action and stopped the marriage petition in January 2016.

(c)   In his NCF, the applicant said Z’s brother went to his home and he dared not open the door. However, he told the adjudicator that he was outside with a friend when Z’s brother came. It was inexplicable why Z’s brother only threatened him through his father.

(d)   He was beaten up by several men for 5 minutes. He only needed treatment from a local medical shop. He did not suffer serious injuries.

(e)   The applicant asserted that the police would not interfere because of the status of Z’s father. It was a pure speculation. In any event, her father was not a government official.

(f)    The applicant was able to stay safely with his cousin for 2 months in Tanda before leaving India. Z’s brother was not that influential. The applicant did not even attempt to move further away from his home village.

(g)   The applicant stayed in China for a month. He attempted to enter Macau first instead of coming to Hong Kong. It was inconsistent with his fear of imminent risk of harm.

15.The adjudicator opined that there was reasonable State protection. The law allowed relocation. There was reasonable relocation option to Delhi, Mumbai and Kolkata. The influence of Z’s family was localized. The applicant could relocate without undue hardship given his age and education.

16.The adjudicator dismissed his appeal on 8/3/2019. The applicant failed on all applicable grounds.

Judicial Review

17.The applicant applied for leave to apply for judicial review on 25/3/2019. In his supporting affirmation, he pointed out several points which are discussed below:

a.  The applicant complained that he was not represented during the TCAB hearing. He had no legal assistance in processing the appeal to the TCAB and the leave application.

i. It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[4]

ii. The applicant had legal assistance from DLS in preparing his NCF. There was no substantial change of his case before the TCAB. Given the circumstances, I do not find any irregularity even though he was not represented before the TCAB.

b.  The applicant pointed out that there was no language assistance provided. He had difficulty understanding the decisions. The hearing bundle was in English. He did not have any assistance.

i. The decision of the Director was explained to him by the DLS. I am sure the applicant understood the reasoning.

ii. As to the NCF and the record of interview before the Director, the applicant was assisted by the DLS at that stage. All these documents were translated to him at that time. He should be able to understand the content.

iii. In my view, the applicant should seek assistance from others according to his resources. There is no duty on the part of the Director to supply translated documents. In fact, there was a Hindi/English interpreter in the TCAB hearing. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.

iv. I notice that both the Form 86 and the affirmation were typewritten in English. They are very concise. This indicate that the applicant was able to find language assistance.

v. The applicant was able to answer the questions put by the adjudicator. This showed that he understood the proceedings.

c.  He complained that the decision of the TCAB was never translated to him. He could not understand fully the reasoning of the adjudicator. The applicant should seek language assistance according to his resources. The concise affirmation in English indicated that he was able to find help.

d.  The applicant complained that reforms might take years to be effective and doubted the present situation in India. He asserted that the reforms were diplomatic strategies to show off to other countries instead of actual improvement.

i. The adjudicator found that the applicant was not credible. This led to rejection of his evidence and the basis of his claim. The COI were of secondary importance in the circumstances.

ii. The COI were compiled by the United States Department of State, the Central Intelligence Agency US, the World Population Review and the UK Home office. They are State agencies collecting information through diplomatic channels. The information provided should be highly relevant and accurate for assessing the development in India. The news reports were from reliable news agencies. They should be reliable.

iii. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 12/4/2018. Had there been any other information, the applicant should have sufficient time to raise it during the hearing with the TCAB in January 2019.

iv. I disagree that the adjudicator and the Director had not considered the COI thoroughly.

18.The applicant was absent at the hearing scheduled on 20/9/2021 before this court.

19.At this stage, the decision of the TCAB had superseded that of the Director. 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.

20.In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable. The evidence of the applicant is not convincing. The adjudicator is right to reject his story.

CONCLUSION

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

Dated the 2^nd day of December 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 2 December 2021 Ashwani 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 2 December 2021 Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11336/18/4/346/IN2214 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1054/18 (formerly RBCZ/13174/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)