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HCAL 871/2018
[2019] HKCFI 2375
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 871 of 2018
BETWEEN
| Jasvir Singh |
1st Applicant |
| Jaswinder Kaur |
2nd Applicant |
| Jatinder Singh |
3rd Applicant |
| and |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
1st Putative Respondent |
| 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:
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consideration of the documents only; or |
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consideration of the documents and the Applicants being 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 1st and 2nd Applicants were husband and wife and national of India who arrived in Hong Kong on 27 July 2014 with permission to remain as visitors up to 10 August 2014 when they did not depart and instead overstayed and were arrested by police on 4 September2014. After they were referred to the Immigration Department for investigation, they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by the 1st Applicant’s uncles and their sons over a land dispute in his home village. They were subsequently released on recognizance pending the determination of their claim,and after their son, the 3rdApplicant, arrived in Hong Kong on 5 November 2016 but when he was refused entry by the Immigration Department, they also raised a non-refoulement claim on his behalf on the same basis to be assessed jointly with their claim.
2. The 1st Applicant (“A1”) was born in a village in Punjab, India where his grandfather owned some farmland which upon his death were inherited by his four sons including A1’s father in equal share.
3. His father passed away when A1 was four years old, and so his mother brought him and his siblings to live with her parents in District Nagar where he worked after leaving school and married his first wife but which later ended in divorce.
4. In 1992 A1 returned to his home village to claim his title in his father’s land but wasrefused by his uncles who claimed that he and his family had forfeited the entitlement afterthey had left the village, and when he tried to seek help from the village head, he was turned away as his uncles were all influential landowners in the village with political connections.
5. Later when A1 and his siblings took the dispute to the local court suing their uncles for their share of their father’s land, their uncles would try all sorts of means to delay the proceedings.
6. In 2008 A1’s sister and her husband took matter into their own hands by ploughing a tractor onto the farmland which led to her uncles calling the police which ended with further heated confrontations with the uncles.
7. One day in 2009 A1’s sister and husband had a traffic accident when their vehicle was struck by a truck in which his sister was killed while her husband suffered serious injuries. A1 later heard that the accident was arranged by his uncles to kill his sister over their land dispute. However, when he reported the matter to the police, they again refused to launch any investigation due to lack of evidence against his uncles.
8. On another occasion in 2010 A1’s brother together with some friends forced themselves onto the farmland. Later at night all the friends left but his brother remained. On the following morning his brother was discovered dead with a head injury. Although he was not present and did not see what actually happened, A1 believed it was his uncles who were behind the murder of his brother.
9. In 2011 A1 met the 2nd Applicant (“A2”) and eventually married her and lived with her parents in District Lakhan Ke Padde, Kapurthala. In September of the same year,A1 brought A2 to visit his father’s land in his home village, during which they ran into the son of one of A1’s uncles who cursed at them and started to throw stones at them with one hitting A2’s head that caused bleeding and later required stitches at a local clinic.
10. After the incident they became very concerned for their safety and fled to Malaysia in October 2011, returning to India only in February 2012. As A1 had by then run out of money, he therefore asked his ex-wife for a loan, but when he arrived in...
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