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

HCAL 2097/2018

[2021] HKCFI 3880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2097 of 2018

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.According to the record of the Immigration Department, the applicant came to Hong Kong on 25/1/2014. He overstayed until 17/6/2014. He was convicted of breach of condition of stay^[1]. He returned to India on 10/7/2014.

2.The applicant entered Hong Kong again from China on 19/5/2015 as a visitor and was permitted to remain until 2/6/2015^[2].  He overstayed and surrendered to the Immigration Department on 7/8/2015.  He first raised a non-refoulement claim on 20/1/2016.  He withdrew that claim on 15/9/2016.  However, he raised the claim in this case on 21/9/2016

Background

3.The applicant was born on 16/9/1992 in Salodin Amritsar, India.  He was single and his family was in India.  He had education for 16 years up to college level.  He had not been charged or detained in India.

4.Around September 2014, 3 college mates in the college asked him to join the “gang” and sell drugs.  He refused. This “gang” was known to be connected with some leaders of the SAD.^[3]  They helped to gather students to support SAD during elections.

5.In September 2014, he was threatened by the 3 college mates and 3 “gang” members. He refused their invitation repeatedly. He openly criticized the conduct of the “gang”.  (1^st incident)

6.One night in October 2014 at a restaurant, a group of about 12 people confronted him.  They threatened to beat him up if he refused to sell drugs for them.  They allowed him time to consider and left.  This group included the 3 college mates, some members of the “gang” and their friends.  They were armed with baseball bats and hockey sticks.  He reported to the police but there was no action. He was not given a FIR ^[4]. (2^nd incident)

7.One day in December 2014, he informed the police on knowing that one member of the “gang” gave drugs to the 3 college mates for sale in the college.  That member of the “gang” was subsequently arrested. However, that person was released after some SAD politicians talked to the police.  The “gang” also discovered that he was the informant.  He was afraid and absent from class for a week. (3^rd incident)

8.One evening in the last week of December 2014, he was driving his motorcycle to another village with a friend.  About 12 men blocked his way.  His friend left.  He was assaulted by them with hockey sticks and rods for about 12 minutes.  He fainted and was subsequently taken to a clinic for treatment.  He had stitches at his head and nose.  He stayed at home for 12 days to recover.  He did not report to the police as the “gang” would beat him up again. (4^th incident)

9.In early January 2015, he informed the police about location of the main leader of the “gang”.  The police raided the house and seized a lot of drugs there.  However, some SAD politicians talked to the police and that leader was released.  He was very frightened and stopped going to the college. (5^th incident)

10.A few days later in mid-January 2015, some members of the “gang” gathered near his home shouting threats and fired into the air.  He was not at home.  He thought it was the 3 college mates who told them his address. He however continued to stay at home. (6^th incident)

11.Around 20/1/2015, he was attacked by about 12 people with bare hands.  His car was blocked by the other men’s cars while he was on his way to somewhere with his friends. The police arrived and they left.  He did not seek treatment as it was minor injuries. He recovered in about 4 days.  When the police knew the assailants were members of the “gang”, they asked him to go home and wait.  He followed up several times but there was no investigation.  He believed the SAD had bribed the police. (7^th incident)

12.In 2 or 3 February 2015, the leader of the “gang” threatened to frame him up for criminal offences on the phone.  The leader asked him to withdraw his complaint.  He was in such fear that he retracted his allegations against the “gang” members.  He thought that the police had informed the “gang” about his repeated reports.  The police were influenced by the SAD.

13.He was so scared that he fled to his friend’s place at Himachal Pradesh^[5].  He stayed there until mid-March 2015.  He returned home afterwards thinking that the “gang” would not do anything against him.  He did not flee earlier as he wanted to wait for the police investigation after the 7^th incident.  However, the threat from the leader made him flee to his friend immediately.

14.One day in April 2015, while he was driving to Jalandhar, another car approached.  There were 2 men on that car.  One of them fired at him twice.  He ducked and avoided injury.  He managed to escape and report to the police immediately.  The police told him to go home and wait.  There was no action after 20 days.  He thought they would not take any action against the “gang”. (8^th incident)

15.His family arranged him to leave India in May 2015 to seek protection in Hong Kong.   There was no problem departing India.  He entered Hong Kong via China.  He did not raise his claim immediately as he thought he could not do so during immigration clearance.

16.His father told him recently that the “gang” members still asked about him.  The “gang” would be able to locate him anywhere in India as they had wide political connections with SAD and BJP^[6]. The “gang” was influential given their political affiliation.  The police would not protect him.

The Decision of the Director

17.The Director found that there was no real risk of harm to the applicant.  The reasons were as follows:^[7]

i.      In most of the incidents, he was only threatened verbally. He was not assaulted. In the 4^th incident, although he claimed to have serious injuries, he could leave the clinic after some treatment on the same day.  Had the “gang” wanted to harm him seriously, they could have done so.

ii.     In the 7^th incident, he was only assaulted with bare hands.  He did not need any treatment subsequently. Even in the 8^th incident, he was not injured despite they fired at him.  The assailants then left without ascertaining whether he was shot.

iii.    The applicant stayed at home even after the 7^th incident waiting for the result of police investigation.  Even after he fled to Himachal Pradesh, he returned home after a month.  He thought the “gang” would not attack him further. He was safe until the 8^th incident in May.

iv.    Despite that he was not harmed in the 8^th incident, he chose to leave India. This was inexplicable when compared with the 4^th incident.  He did not flee after the 4^th incident although he sustained serious injuries.  All these indicated that the risk of harm was not imminent.  The asserted physical or mental injuries did not reach a minimum level of severity.

v.     It was a dispute of private nature between him and the “gang”.  There was no evidence that the State was involved.  In fact, the police did take action against the persons whom he gave leads resulting in their arrests.  The assertion that the arrested suspects were subsequently released, due to the intervention of SAD politicians, was pure speculation.

vi.    He could leave India without any problem. He was not targeted by any authorities despite his assertion that the “gang” was affiliated with SAD in these incidents.

vii.   The Director had considered various COI.  There were serious problems of corruption, abuse of power and political influence in the police force, there were on-going reforms to tackle incompetence of the police.  A person might take his case to the Superintendent of Police or a Magistrate if an officer refused to take a report. Special channels were established to tackle corruption (Central Vigilance Commission) and human rights abuses (National Human Rights Commission). NGOs might file public interest petitions against officials involved in corruption and partiality.  The Director was satisfied that the authorities carried out their duties properly and enforced the law.  There was reasonable State protection.

viii.  The law allowed freedom of internal movement. India was a large country with a huge population of 1.2 billion.  There were reasonable options for relocation, e.g., New Delhi and Mumbai.  It would be difficult for the “gang” or the SAD people to locate him.  It was not unduly harsh for the applicant to relocate to New Delhi.

18.The Director rejected his claim on all grounds on 13/3/2017.^[8]

The decision of TCAB

19.The TCAB held an oral hearing on 10/7/2018. The adjudicator found multiple discrepancies in the evidence of the applicant. The adjudicator also doubted the plausibility of his factual background and concluded that he was not credible. The adjudicator rejected the factual basis of his claim on the following reasons:^[9]

a.  The applicant told the adjudicator that the 3^rd incident occurred in September 2014. Whereas in his NCF, he asserted that this incident occurred in December 2014.

b.  The applicant did not mention to the adjudicator that 3 members of the “gang” were also involved in the 1^st incident. Whereas in his NCF, he asserted he was threatened by 3 college mates and 3 members of the “gang” in the 1^st incident.

c.  The applicant told the adjudicator that the 2^nd incident was 1 week after the 3^rd incident.  The arrested member of the “gang” in the 3^rd incident was present in the 2^nd incident.  He also threatened to report the “gang” to the police if they sold drugs at the college again.  All these were inconsistent with the NCF.

d.  The applicant told the adjudicator that the 5^th incident occurred around October 2014 but in the NCF, the 5^th incident occurred in January 2015.  The main leader of the “gang”—Ankur Likhari—was arrested in the 5^th incident according to the NCF. However, he told the adjudicator a main gang member, whose name was unknown, was arrested in the 5^th incident.  The adjudicator also doubted that the police would raid the house solely on a phone call from the applicant.  It was even more unconvincing that he told the adjudicator he did not know the names of the 2 persons arrested in the 5^th incident.  He even said he was threatened on the phone by one of these unknown men.

e.  The applicant did not mention the 8^th incident to the adjudicator.

f.  The applicant told the adjudicator that the 4^th incident occurred in October 2014 but according to the NCF, it was December 2014.  Similarly, he mixed up the dates of the 6^th incident.

g.  The applicant did not mention to the adjudicator any beating in the 7^th incident. He just asserted that the men left on hearing police siren.  This was inconsistent with the NCF.

h.  The applicant told the adjudicator that the 8^th incident occurred before he fled to Himachal Pradesh.  This was inconsistent with the NCF in which the 8^th incident occurred after he returned home from Himachal Pradesh.

20.The adjudicator did not accept that the inconsistencies were due to lapses in memory or passage of time.  It was reasonable to expect the applicant to be able to state the sequence of key incidents.  He had copies of the NCF and record of interview after they were compiled.

21.The adjudicator doubted why the 3 college mates approached the applicant to sell drugs.  He only started studying in the college for 3 to 4 months.  The adjudicator also queried why the applicant actively take on the notorious “gang” despite the repeated threats. The applicant explained to the adjudicator that he did not take the threats seriously.  He would have protection from the police. In fact, the leader of the “gang”—Ankur Likhari—was sentenced to life imprisonment for murder in February 2014.  The explanation of the applicant was not convincing.

22.His fellow student Aman was the source of the information in the 3^rd and 5^th incident. He then informed the police.  Aman was not targeted by the “gang” and was safe in Amritsar even after the applicant fled India. The adjudicator found this puzzling.

23.The applicant overstayed in Hong Kong in early 2014.  He explained that he was misled by an agent that he could have a work visa.  The applicant then returned to India and started his college studies in July 2014.  The incidents of his claim then started.  The adjudicator found the timing too coincidental bearing in mind the various inconsistencies in his evidence.

24.The adjudicator found that there was no real risk of harm and dismissed his appeal 14/9/2018.

Judicial Review

25.The applicant filed the leave application on 3/10/2018.  He alleged that the TCAB decision was unfair and unreasonable.

26.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 duties of the TCAB and the Director.  In general, this court would not interfere.

27.The adjudicator had analysed the applicant’s evidence in great detail.  The various inconsistencies substantially undermined his credibility.  I agree with the conclusion of the adjudicator.  The applicant was not credible. In my judgment, there is no error of law or procedure.  The decisions are reasonable.

Conclusion

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

Dated the 30^th day of December 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