MANTHA KARUPPU GUNASEKARAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2432/2024

[2026] HKCFI 2504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2432 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The applicant’s application for leave to apply for judicial review be dismissed.

Background

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 11 December 2024, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 29 November 2024 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 30 August 2024 rejecting the applicant’s non-refoulement claim based on all applicable grounds[1]. The Board’s Decision is set out in the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2024/HCAL002432_2024_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to India, he would be harmed or killed by the local leader and his subordinates of the Dravida Munnetra Kazhagam Party due to a dispute over the carrying of the temple chariot for the Mariamman Festival held in the applicant’s home town. The reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  The applicant has requested for an oral hearing.  On 29 July 2025, the applicant filed an affirmation for the withdrawal of the Leave Application.  On 9 September 2025, the Removal Assessment and Litigation (Removal and Deportation) Section (1) of the Immigration Department faxed a letter to the court, informing the court that the applicant would like to withdraw his judicial review application. Enclosed with the said letter was the applicant’s signed memo dated 25 August 2025 in both the applicant’s native language as well as English language. In the memo, the applicant stated that he would like to withdraw the Leave Application. In the circumstances, this court will dispose of the Leave Application on paper.

Discussion

4.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision.[2] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

5.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  In the applicant’s Form 86, the applicant averred that he was not given a fair opportunity to put forward his submissions, and that the Board relied on the source of news which was not officially recognized. He further stated that the Board’s credibility finding was not reasonable.  In the supporting affirmation, the applicant repeated similar allegations.

6.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality.[4] In the present case, the Board found that the applicant was not a credible witness. It found that the applicant had fabricated and concocted his evidence in order to advance his non-refoulement claim. The Board therefore concluded that the applicant would not face a real risk of harm if refouled. It further found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

7.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The grounds the applicant provided in the supporting affirmation are vague and lack particulars. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave[5].

Withdrawal application

8.  Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action.  In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.

Recent Removal

9.  On 28 October 2025, before the applicant was removed, he signed a standard form letter to the court, stating that he “chose not to provide any correspondence address for communication with the court and service of court documents.”

Order

10.  The applicant’s application for leave to apply for judicial review dismissed.

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