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Giri Anup Kumar And Others v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date22 December 2021
Neutral Citation[2021] HKCFI 3843
Year2021
Judgement NumberHCAL1878/2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1437/2018 GIRI ANUP KUMAR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1437/2018 and
HCAL 1878/2020
(Consolidated)

[2021] HKCFI 3843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 1437 OF 2018 AND 1878 OF 2020

(CONSOLIDATED)

BETWEEN
Giri Anup Kumar 1st Applicant
Gill Simarjit Kaur 2nd Applicant
Giri Piyush Kumar 3rd Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party

(Consolidated pursuant to the Order of

Deputy High Court Judge Bruno Chan dated 22 December 2021)

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 Applicants in open court;

Order by Deputy High Court Judge Bruno Chan:

1. HCAL 1437/2018 be consolidated with HCAL 1878/2020 and Giri Anup Kumar shall be named as the 1st Applicant, Gill Simarjit Kaur, the 2nd Applicant and Giri Piyush Kumar, the 3rd Applicant; and

2. Both applications for leave to apply for judicial review be refused.

Observations for the Applicants:

1. The 1st and 2nd Applicants (“A1” and “A2”) are nationals of India who arrived in Hong Kong on 2 September 2015 with permission to remain as visitors up to 16 September 2015 when they did not depart and instead overstayed, and on 18 September 2015 they surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the family of A1’s wife over their extra-marital affair. They were subsequently released on recognizance pending the determination of their claim, and after A2 gave birth to their son, the 3rd Applicant (“A3”) in Hong Kong on 11 December 2017, A2 also raised a similar claim for him on the same basis.

2. A1 was born and raised in Village Manuke, Sub-district Jagraon, District Luhiana, Punjab, India. After leaving school he worked as a mechanic and a store worker in Ludhiana, married his wife arranged by his family, and raised a daughter born in 2014.

3. In May 2014 A1 and A2 who was from the same district secretly started an affair, and in April 2015 they went through some form of marriage ceremony in a temple, but later when the wife of A1 discovered the affair and demanded that A1 put an end to it while her parents and family as well as A1’s parents also rebuked him over the affair, but when one day in July 2015 two of A1’s friends who were professional killers informed him that his wife’s parents had hired them to kill him, A1 became fearful for his life and fled with A2 to Delhi, and from there they departed India on 21 August 2015 for Thailand, and then on 2 September 2015 they travelled to Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 2 August 2016 and attended screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

4. By a Notice of Decision dated 6 December 2016 the Director of Immigration (“Director”) rejected their claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5. In his decision the Director took into account of all the relevant circumstances of their claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by the family of A1’s wife due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of them to kill A1 other than to put pressure on him to end his affair with A2, that there is no reliable evidence that the family of A1’s wife had hired any professional killers to kill him, that in any event in the absence of any official involvement that state or police protection would be available to A1 and A2 if resorted to, 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 of more than 3.2 million square kilometers that it would not be unduly harsh for them as able-bodied adults with working experience to move to other part of India away from their home district in large cities such as Delhi where they had stayed before without incidents and where it would be difficult if not impossible for them to be located.

6. On 13 December 2016 A1 and A2 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 8 March 2018 before the Board during which they both gave evidence and answered questions put to them by the Adjudicator for the Board. On 20 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7. In its decision the Board accepted that the families of A1 and his wife disapproved of his relationship with A2 but found no reliable evidence...

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