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Jassal Tajinder Kumar And Others v Torture Claims Appeal Board / Non-refoulement Claims Petition Office And Another [Decision On Leave Application]

Judgment Cited authorities 2 Cited in 2 Precedent Map Related
Vincent
Judgment Date01 June 2020
Neutral Citation[2020] HKCFI 479
Judgement NumberHCAL303/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL303/2018 JASSAL TAJINDER KUMAR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 303/2018

[2020] HKCFI 479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 303 of 2018

BETWEEN

Jassal Tajinder Kumar 1st Applicant
Jassal Gurpreet Kaur 2nd Applicant
Jassal Rahul 3rd Applicant
Jassal Rohan 4th Applicant
and
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office		 1st Putative Respondent
The Director of Immigration 2nd Putative Respondent

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 Applicants being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1. The Applicants are respectively a married couple and their two children all of Indian nationality who arrived in Hong Kong on 14 August 2016 with permission to remain as visitors up to 28 August 2016 when they did not depart, and instead overstayed and surrendered to the Immigration Department on 30 August 2016 when they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the 2nd Applicant’s family who were opposed to their marriage. They were subsequently released on recognizance pending the determination of their claim.

2. The 1st Applicant (“A1”) was born and raised in Village Khajurla, District Kapurthala, Punjab, India as the Scheduled Caste which was considered as a low and disadvantaged class of the population. After leaving school he worked as a driver, and in 2004 he started dating the 2nd Applicant (“A2”) from neighbouring Village Kot Kalan, District Jalandhar,Punjab who was born to the highest caste the Jatt Sikh Caste and came from a wealthy family where her father owned a large farmland with many farmers working for him.

3. Due to their different castes they kept their relationship a secret to A2’s family, but on one occasion in late 2005 when they were seen intimately together by A2’s father, and upon discovering A1’s background, A2’s family insisted that they ceased their relationship and punished A2 by beating her so badly that she was later brought to the hospital for medical treatments.

4. Realizing that their relationship would never be approved by A2’s family, they eloped to New Delhi in November 2005 and secretly married there, and then moved to stayin Garh Shankar. Later when they received telephone calls from A2’s family threatening tokill both of them for marrying against their wish, the couple went to the police for help, but when the police failed to take any action, they petitioned to the High Court of Punjab for protection and for an injunction to restrain A2’s family from harassing and threatening them.

5. They then moved to New Delhi in January 2006, and in March 2006 the High Court granted their petition and directed that A2’s family to cease their threats and harassments. However, later in November 2006 when the couple heard that A2’s family had discovered where they were and had sent men to New Delhi to look for them, they then fled to Baldev Nagar in the State of Uttar Pradesh where they remained without further incidents for the next 10 years, during which A2 had given birth to their children, the 3rd and 4th Applicants (“A3” and “A4” respectively).

6. However, in March 2016 they were told by their neighbors that A2’s brother was seen in the area, and became concerned that they may have been located by A2’s family,they therefore moved their home to Dhugdi, Jalandhar City in April 2016.

7. Shortly thereafter one day when A1 was driving his family to the local market, they were struck from behind by another vehicle, and when they saw that it was A2’s brother in that vehicle, they sped away and managed to make their escape, but believing that they had been located by A2’s family and that it was no longer safe to remain in India,they departed on 13 August 2016 for Hong Kong, where they overstayed and subsequently surrendered to the Immigration Department and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form on 4January 2017 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

8. By a Notice of Decision dated 8 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ 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 (“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...

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2 cases
  • Re Jassal Tajinder Kumar And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 27 Enero 2021
    ...Lam) Judge of the Court of First Instance The 1st and 2nd Applicants appeared in person The 3rd and 4th Applicants did not appear [1] [2020] HKCFI 479. [2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong......
  • Re Jassal Tajinder Kumar And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 7 Diciembre 2021
    ...(Thomas Au) (Godfrey Lam) Justice of Appeal Justice of Appeal The 1st and 2nd Applicants, unrepresented, acting in person [1] [2020] HKCFI 479 [2] [2021] HKCA 124 ...

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