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

HCAL 2570/2018

[2022] HKCFI 836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2570 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 the Applicant being absent in open court;

Order by Deputy High Court Judge P. Li:

1.      Application for withdrawal of the application for leave to apply for Judicial Review be dismissed;

2.      Application for reinstatement of the application for leave to apply for Judicial Review be dismissed; and

3.      Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong on 5/4/2011.  He was refused entry. He filed a torture claim on 6/4/2011.  The torture claim was rejected on 30/11/2012. He filed the present non-refoulement claim on 4/3/2014.

Background

2.The applicant was born on 11/9/1982 in Punjab, India[1]. He was single.  His parents lived in India.  He was illiterate.  He was an assistant in a retail shop in 2010.  His boss had some conflict with the owner of the next shop—Makhan (“M”). He knew very little about the conflict. M was a member of the legislative assembly representing Akali Dal party (“SAD”).

3.In June 2010, both shops were burnt down. He was arrested by the police for arson. His boss disappeared. He was detained for 3 days. During the detention, he was assaulted by the officers. He was not given food or water. He was released afterwards as his friends protested outside the police station. He was not charged.  He sustained bruises all over his body. He did not seek treatment. He recovered in a few weeks. He did not complain.

4.On 7/7/2010, he was arrested again and detained for 4 days. He was tortured during the detention which included beating, electric shock and pulling off toenails. The police accused him of assisting his boss to escape. He was released after 4 days. His friends took him to a hospital. He was hospitalized for a few days. He recovered in 3 months. The police threatened him not to complain. While in the hospital, M came and threatened to kill him if he refused to disclose the whereabouts of his boss.

5.In mid-July, 2010, his friend arranged a lawyer for him to file a complaint in court against the police and M about the unlawful detention, torture and threats. M was angry and threatened him further to withdraw the complaint. M could not harm him as he was with others on each occasion when M approached.

6.The complaint was dismissed by the court in about March 2011. He did not know the details. He thought it was dismissed because of M’s influence. The police threatened to take revenge on him. However, the police had not approached him since.

7.He moved to his friend’s house in Bhatinda for a month to stay away from M in mid-2011. M harassed his family asking about him. His friend arranged him to leave India on 5/4/2011.

8.M continued to harass his family after he left. M did not harm his family. M suspected him to be responsible for the arson. Since November 2016, he had lost contact with his family. The police continued to investigate the arson. His good friend was killed by M for not revealing his whereabouts.

9.It is impossible to relocate as the SAD was in power. M and his men would be able to locate him. He did not think any authorities—Central Bureau of Investigation or Ombudsman—could help.

The Decision of the Director

10.The Director found that the risk of harm was low for the following main reasons:

(a)  There was no assault by M or his men. They only threatened him. The police assaulted him twice in 2010 but the injuries were not serious.  As a whole, the injuries did not amount to “a minimum level of severity”.

(b)  He was assisted by a lawyer in filing the complaint against the police. He did not know the reasons of the court. It was unreasonable that he did not seek assistance from his lawyer.

(c)  Although he asserted that the police had threatened to take revenge, the police had not taken any action. He was able to stay safely with his friend in Bhatinda.

(d)  He alleged that M had killed his good friend who failed to disclose his whereabouts. It was pure hearsay. There was no evidence in support.

(e)  The arson was still under investigation. This showed that the government was not unwilling or unable to enforce the law.

(f)  There was no reason for SAD to be involved in this case. It was unconvincing that M could mobilize the resources of SAD to locate him.

(g)  The Director accepted that there were problems of corruption, human right violations, and political pressure on the police.  However, there were recent reforms in India.  There was effort to bring police officers to justice and enhance accountability.  Special channels were established to tackle corruption, e.g. Central Bureau of Investigation. There was an online complaint channel. An aggrieved person could complain to the Superintendent and a Magistrate if a proper investigation was not carried out.  The NHRC [2] was tasked to tackle human rights abuses nationwide. The Central Vigilance Commission was designated to investigate complaints of corruption and abuse of power. There were news reports on arresting corrupt officers and leaders of political parties including SAD. The Director was satisfied that there was reasonable State protection.

(h)  The Indian law allowed internal relocation.  India was a large country with a population of about 1.2 billion.  There were reasonable options for relocation, e.g., Delhi and Mumbai.  It would be difficult for M to locate him. It was not unduly harsh for him to relocate given his age.

11.The Director dismissed his non-refoulement claim on BOR 2, BOR 3 and persecution risk on 1/3/2017.

The Decision of TCAB

12.The adjudicator held an oral hearing on 4/10/2018.  After the initial stage, the applicant elected not to answer further questions. He reiterated that the basis of his claim was all contained in the hearing bundle. The adjudicator explained further that he could only decide the doubtful points based on the existing evidence. The applicant confirmed that he would not answer any further question.

13.The adjudicator concluded that the applicant’s evidence was not credible. The adjudicator concluded that there was no real risk of harm or persecution. He pointed out the following reasons:

(a)  The applicant was unable to remember the name of his employer in the TCAB hearing. Given that he was tortured and interrogated for the whereabouts of his employer, it was unconvincing that he could not even remember the name of the employer.

(b)  The applicant made various assertions about M. There was no supporting evidence. In his Questionnaire[3], he heard it was M who set fire on his own shop. When asked about the source of that allegation, he did not know. The adjudicator opined that had M set fire on his own shop, there was no reason for M to pursue the applicant after 8 years.

(c)  The applicant indicated in the Questionnaire that M did not like him and his boss. When the adjudicator asked the reason for that, the applicant refused to answer.

(d)  According to the records of election results for the Punjab Legislative Assembly, M had never been elected a MLA. The applicant explained that he meant M was a member of the local Municipal Council. The adjudicator did not accept this explanation as both the SCF[4] and Questionnaire were explained to him at the time when it was compiled.

(e)  The adjudicator did not accept that M had murdered 2 others but get away with it. There was no evidence to support these assertions whatsoever.

(f)  The adjudicator also rejected the assertion that M had killed the applicant’s good friend merely because the latter refused to tell M the whereabouts of the applicant. There was no reason for his good friend to refuse as the applicant had already left India for Hong Kong.

(g)  The adjudicator did not accept that in the first arrest the applicant was tortured for 3 days given that he required no medical treatment after release. If he was released because the local residents protested and supported his innocence, it was unreasonable that the police arrested him again.

(h)  In the Questionnaire for the torture claim, he did not mention pulling off toenails during the second detention. He only mentioned that in the SCF in 2016. The adjudicator found this unacceptable given the serious nature. There should have been medical reports to support his case filed in court in India.

(i)  The applicant dared not report M as he was tortured by the police. On the other hand, he filed a case in court against the police and M. This was inconsistent. The applicant did not explain as he refused to answer further questions.

(j)  There was no evidence that M had taken any action to kill the applicant. There was no evidence that the police had taken any revenge on him after his case was dismissed by the court.

(k)  There were reasonable options for relocation such as Jalandhar, Amritsar and Ludhiana. The adjudicator found that it would be difficult for M to locate him.

14.The adjudicator dismissed his appeal on 25/10/2018.  

Judicial Review

15.The applicant filed the leave application for judicial review on 15/11/2018. The applicant lodged some written grounds for judicial review on 11/2/2021. He alleged that the adjudicator had not analyzed the facts and the supporting documents. The adjudicator had relied on cases which were outdated.

16.The allegations made against the adjudicator were vague. The adjudicator had analyzed the facts in great detail. The adjudicator had pointed out some doubtful areas to the applicant during the oral hearing. The applicant refused to answer further questions. In the circumstances, the adjudicator was entitled to decide the issue in the absence of credible explanation.

17.The applicant had not filed any documents. Although he indicated his intention to file the death certificate of his good friend, he did not do so. There was no supporting document which needed consideration by the adjudicator.

18.This court fixed a hearing on 10/1/2022. The applicant was absent. The notice of hearing was sent to his last known address updated on 18/1/2021. There was no return of mail. This court decided to consider the claim on paper.

19.It transpired that the applicant filed an affirmation for withdrawal of the leave application on 10/1/2022 shortly after the hearing. Before this court made any order, he applied to re-instate his leave application on 26/1/2022. In any event, this court would deal with the merits of his leave application on paper as if the leave application was re-instated.

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.As summarized above, the adjudicator in effect rejected the evidence of the applicant as it was not credible. He found that there was no real risk of harm.

22.There is no error of law or procedure.  The TCAB decision is reasonable. This court agrees with the conclusion of the adjudicator.

Conclusion

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

Dated the 24^th day of March 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