Gujjer Satnam Singh v. Torture Claims Appeal Board

HCAL 2138/2018

[2022] HKCFI 3207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2138 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of India who entered Hong Kong illegally on 15 September 2011 and was arrested by police on 4 November 2011.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his in-laws for trying to divorce his wife, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis and plus an additional basis that he would be harmed or killed by the Indian authorities for subsequently posting a message on social media inciting people to rape the daughter of the Chief Minister of Delhi. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kakrala, Kathal District, Haryana State, India.  After leaving school he worked as a truck driver, and in 2007 married his wife arranged by their own families.  

3.The Applicant however did not get along with his wife, and that there were frequent disputes and conflicts between them throughout the marriage, and after one particularly heated quarrel between them in 2011 his wife subsequently left to return to her parents’ home, but when the Applicant later suggested to have a divorce between them and sent some divorce papers to his wife for her signature, she did not respond and her father told the Applicant that there should not be any divorce between them, and threatened that if the Applicant were to go ahead with the divorce, he would send someone to kill him.

4.To avoid any further conflicts with his wife or threats from her father, the Applicant therefore moved to Kolkata, and on 27 July 2011 he departed India for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police, he raised his torture claim, and after it was rejected, he then sought non-refoulement protection.

5.While released on recognizance pending the determination of his non-refoulement claim, the Applicant in 2012 read from the news about a girl being raped by a gang of men on a bus in Delhi which shocked the country and the world, and that those men were subsequently convicted by the court and sentenced to death except for one who was given a sentence for 3 years as he was then a boy under the age of 18 and was charged as a juvenile, and upon serving his sentence, the boy was discharged from prison in December 2015. 

6.However, later on 19 December 2015 the Applicant was upset to learn that the boy had in fact been provided with financial assistance for his legal defense of the charge of rape by the Chief Minister of Delhi Arvind Kejriwal (“AK”), and while being drunk the Applicant posted a message on Twitter to offer rewards to those who were to rape the daughter of the Chief Minister.

7.His tweet subsequently provoked a wild response in India including protests from AK’s supporters and women groups such as the Delhi Commission for Women (“DCW”) when one of its members Promila Gupta (“PG”) called for actions against the Applicant, and even though he did thereafter delete the tweet, the Applicant continued to receive threats in the social media.

8.One day in June 2016 the Applicant was arrested by the police in Hong Kong over a complaint made against him for the said message which he posted on Twitter, for which he was detained at the Wan Chai Police Headquarter for interrogations for 2 days before being released on police bail and was required to report to the police every month.         

9.Although he has never been formally charged by the police in India, but given the many complaints and threatening messages made against him on the social media, and that such authoritative figures as the Chief Minister of Delhi and DCW were involved, the Applicant feared that he would be harmed or killed by the Indian authorities or the many women interest groups or even the general public if refouled to his home country, of which he subsequently included as the bases for his claim for non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 16 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.By a Notice of Decision dated 7 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

11.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his in-laws over his divorce of his wife and/or AK or the Indian authorities or the public over his message posted on Twitter upon his return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his in-laws to seriously harm or kill him, that his problems with his wife and in-laws were private domestic disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, nor is there any evidence of such intention from AK or PG or DCW or the Indian authorities in the absence of any formal charge being laid against him in India, while it is not accepted that the general public in India will be able to identify him as the person who posted that message on twitter upon his return to India, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Mumbai or Kolkata where it would be difficult if not impossible for anyone to locate him.

12.On 21 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 June 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found the Applicant’s claim of fear of harm at the hands of his in-laws over his intended divorce with his wife merely a personal private dispute between them without any evidence of any physical violence being inflicted against him, that on his own evidence there is a good prospect of a settlement of their dispute between them, and that in any event the absence of any official involvement that state or police protection would be available to him upon his return to India as well as reasonable internal relocation for him to move safely to other part of the country to avoid any such risk that it is not accepted that he would face any real risk of harm from his in-laws over his matrimonial dispute with his wife.

14.As for his claim of fear of harm from AK or the Indian authorities or the public in general in India over his message posted on Twitter, the Board found that it was quickly deleted that on balance of probabilities it was not persuaded that there were many other responses to his message or that he was threatened in such messages as he claimed, that his arrest by police in Hong Kong as a result of complaints from AK or the Indian authorities or any women interest group is wholly based on speculation on his part without any other credible evidence, and that it was not persuaded that there is a real risk that he would suffer ill-treatment of any sort upon his return to India as a result of the message that he posted on Twitter.

15.On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he cannot go back to his home country as at this moment his life is not safe but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

16.Given that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim which arose from his domestic dispute with his wife and her family as a private and localized one without any official involvement that it is not unreasonable or unsafe for him to relocate to other part of India, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge such findings of the Board: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.However, the same may not be said about the way the Board appeared to have brushed aside the Applicant’s claim of fear of harm from the Indian authorities or the public in general over complaints about his message posted on Twitter as merely his own speculation unsupported by any reliable evidence, as it so stated in its decision as follows:

“63. The Claimant fears that he will suffer harm from the hands of AK, PG the DCW because of the Claimant’s message on Twitter in which he facetiously denigrated AK’s daughter.

64. While the Claimant admits to having posted the message on Twitter, he made it clear during the police interviews in Hong Kong, and in evidence, that he had never, at any stage, intended that his facetious message about AK’s daughter should be acted upon.

65. His message was quickly deleted and, on the balance of probabilities, I am not persuaded that there were many other responses to the Claimant’s message, or that he has slandered or threatened in such messages as he claims, or at all.

66. The fact that the Claimant was arrested and detained for 2 days in Hong Kong indicates that the Hong Kong police had received a complaint about the Claimant’s Twitter message. However, the Claimant’s assertion that he was arrested as a result of a complaint from PG, while plausible, is based entirely on the Claimant’s speculations.

67. The Claimant’s assertion that, because he was arrested in Hong Kong, there must have been many other complaints against him in India, is wholly based on speculation on his part and is not supported by any other credible evidence.

68. A great deal of the Claimant’s evidence relates matters of fact which are not within the Claimant’s personal knowledge but it based solely on what the Claimant says he was told by others. Such evidence amounts to hearsay. Other aspects of his case are based entirely on speculation.

69. While hearsay is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced. Hearsay evidence cannot prove the truth of facts asserted by way of such evidence. Speculation can rarely advance any element of the Claimant’s case.

70. In the circumstances, I am unable to attach any weight to the Claimant’s evidence which amounts to hearsay when it is not supported by any other credible evidence. I attach no weight to the Claimant’s assertions which are based solely on speculation.” 

18.The Board then went on to reject this claim of the Applicant as follows:

“73. The Claimant’s assertion that he will be seriously harmed by AK, PG or people from the DCW because of the message he posted on Twitter is unrealistic and wholly speculative. I am not persuaded, even to the low standard applicable, that there is a real risk that, if he is refouled to India, the Claimant would suffer ill-treatment of any sort as a result of the message he posed on Twitter.”

19.Given the fact that the Adjudicator had actually viewed the 2 VCDs of the Applicant’s recorded interviews under caution at Wan Chai Police Station (see [39] of Board’s decision), it is clear that the Board did not dispute his claim of being arrested by the Hong Kong police and detained for 2 days due to complaint(s) received over his message posted on Twitter, and while the Board found that the recordings did not disclose who made the complaint to the police, of which the Applicant could not be in any position to identify or prove unless disclosed by the police, the fact that the Chief Minister of Delhi was involved and that a member of the Delhi Commission for Women had demanded actions against the Applicant, and that the gang rape incident had caused such emotional reactions in the country, it seems to me reasonably arguable that the Board should not have just brushed aside the Applicant’s claim as merely his own speculation, and that high standards of fairness would require the Board to make its own inquiry into the possibility that the actions of the Hong Kong police taken against the Applicant might have been triggered by much more influential or authoritative sources from India than mere average user of Twitter or some women interest group, or at least to look into the relevant COI available before it and the latest situation regarding complaints against the Applicant, and more relevantly what possible consequences that might result to him upon his refoulement to his home country.              

20.Of course if the Applicant’s action were in fact against any law or legislation of India and that the authorities were entitled to bring charges against him if refouled to India, and to which the Applicant may not be afforded with non-refoulement protection, it is in my judgment a relevant matter which the Board should have looked into and to make proper finding and assessment before coming to the conclusion that if refouled to India the Applicant “would not suffer ill-treatment of any sort as a result of the message he posted on Twitter”.                     

21.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (i) the Board erred in law in finding that the Applicant’s assertion that he was arrested as a result of a complaint from AK or PG is based entirely on his speculation unsupported by any credible evidence; and/or (ii) the Board failed to apply high standards of fairness in its consideration and assessment of the Applicant’s claim of fear of harm from the Indian authorities over complaints of his message posted on Twitter; and/or (iii) the Board failed to make proper or sufficient inquiry into the relevant COI in its consideration and assessment of the Applicant’s said claim, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

22.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the bases as stated above, and direct that he shall file and issue the relevant originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 21^st day of October 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