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

HCAL 1624/2019

[2022] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1624 of 2019

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 the Applicant being absent 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 came to Hong Kong on 9/12/2016 as a visitor.  He overstayed until 28/12/2016 and surrendered to the Immigration Department.[1]  He raised the non-refoulement claim in this case on 28/12/2016 and 1/2/2017.

Background

2.The applicant was born on 15/6/1977 in Patiala, Punjab, India [2]. He was married.  His family were in India.  He received education for 10 years. He was a tailor for about 19 years. He worked as a labourer in Singapore in 2016 for about a year.

3.In the morning of 5/1/2015, his motorcycle collided with another motorcycle while on the way to Patiala City. He suspected that the other driver was dead on the spot. He was very frightened and returned home. He did not report the accident to the police.

4.On 8/1/2015, a settlement meeting was held. His family settled the case by paying half a million Indian Rupees to the family of the deceased. The uncle of the deceased (“Khan”) was not happy about the settlement. He refused to accept it was an accident and threatened to kill the applicant. The elders present did not help to explain. Khan was a leader of the SAD[3] and a known gangster. He did not know his detailed background.

5.In March 2015, Khan and others chased after him while he was near the bazaar in Patiala. They shouted at him in foul language. He managed to escape. He did not report to the police. He did not encounter further threats as he stayed at home most of the time. In December 2015, he left India to work in Singapore.

6.He was safe until December 2016 when a few strangers chased after him in Singapore. They swore foul language in Punjabi. He thought they were sent by Khan. He eventually escaped. He did not report to the police as he spoke very little English and no one could accompany him to the police station.

7.On the advice of a friend, he came to Hong Kong on 9/12/2016. He dared not lodge his claim immediately as he might be repatriated back to India.

8.His father told him not to return to India. Khan still came to ask about him. Internal relocation was not possible as he had no friends elsewhere. Khan could locate him as the SAD had a large network. The police would not protect him as they were influenced by the SAD. He did not think any authorities would be able to help him due to corruption and political influences.

The Decision of the Director

9.The Director pointed out that the risk of harm would be low for the following reasons:

(a)         Throughout the incidents that Khan chased him. He managed to escape. He was never injured. There was no injury which amounted to “a minimum level of severity”. He was not mentally disturbed as he could work and live in Singapore for a year.

(b)         Given Khan was so powerful as he asserted, had Khan wanted to harm him, there were plenty of chances. The evidence showed that their intention was to threaten him instead of causing serious harm or to kill him.

(c)         He asserted that some assailants were send by Khan to Singapore. There was no evidence to support this assertion. It was unreasonable that he did not report to the police in Singapore. The reasons he gave were unconvincing.

(d)         He alleged that Khan could make use of the resources of SAD to locate him. He knew very little about Khan’s background and position in the SAD. In fact, there was no evidence that the SAD was involved in this personal dispute. It was just pure speculation without evidential support.

(e)         The Director had considered various COI.  There were problems of corruption, human rights violations and the police was inefficient. There were unlawful arrests and detentions. However, there were reforms with positive improvements. Different channels were established to handle various unfair and delayed police actions, such as, complaints to the Superintendent, the Magistrate, the Ombudsman or the NHRC[4]. There were newspaper reports that senior police officers were prosecuted for unlawful conduct.  The Director was satisfied that there was reasonable State protection.

(f)          The law allowed internal relocation.  India was a large and populated country.  There were reasonable options for relocation, e.g., Delhi and Lucknow. It was not unduly harsh for the applicant to relocate given his background.

10.The Director rejected his claims on all grounds on 30/7/2018.

The Decision of TCAB

11.The adjudicator held an oral hearing on 12/12/2018.  He rejected the appeal on 23/5/2019.  The main reasons were as the following:

(a)      The adjudicator opined that the basis of the claim was totally the assertion of the applicant. There was no report to the police despite it was a fatal accident. He did not know the name of the deceased. He was so scared that he returned home. It was unreasonable to leave a dying man at the road side. His explanation that the elders would deal with it was unreasonable.

(b)      There was no evidence that Khan had any intention to kill the applicant. He was able to escape on all occasions. His family was never harassed despite Khan was not satisfied with the settlement. Khan did not do anything to trace the applicant.

(c)      The applicant believed that the strangers were sent by Khan to Singapore to harm him. There was no evidence to support this assertion at all. It was improbable that Khan would send some men to Singapore to kill him whereas he did not have clear intention to do so in India. He could not explain to the adjudicator why Khan did not harass his family or attack him before he left India for Singapore.

(d)      The applicant only filed the claim after he was arrested by the police. This cast doubt on his credibility.

(e)      The applicant was not targeted by the government. He was able to leave India without any problem. There was no evidence that the SAD was involved. The assertion that the SAD would use its resources to locate him was implausible.

(f)       There was reasonable State protection and internal relocation options.

(g)      The adjudicator found the evidence not credible. He rejected the appeal on all grounds.

Judicial Review

12.The applicant applied for leave to apply for judicial review on 14/6/2019. In his supporting affirmation, he did not specify any error of the TCAB decision.

13.It is for the TCAB to determine the credibility of the applicant and the factual bases of the claim.  In general, this court would not interfere.  In judicial review, it is for this court to determine whether there is any error of law or procedures.  Whether the TCAB decision is rational.

14.The applicant was absent from the hearing on 10/1/2022. The notice of hearing was sent to the last known address. There was no return of mail. This court dealt with the leave application on paper.

15.I agree with the findings of the adjudicator.  The applicant is not credible given the nature of the evidence. In my judgment, there is no error of law or procedure.  The TCAB decision is reasonable.

Conclusion

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

Dated the 23^rd day of February 2022.

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