MANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1940/2018

[2020] HKCFI 2515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1940 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of India who arrived in Hong Kong on 24 July 2013 with permission to remain as a visitor up to 7 August 2013 when he did not depart and instead overstayed and was arrested by police on 26 October 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by some men whom he witnessed to have committed a murder.          

2.  By a Notice of Decision dated 1 April 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

3.  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 those men upon his return to India as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant 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 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 India away from his home district in some large cities where it would be difficult if not impossible for those men to locate him.

4.  By a Notice of Further Decision dated 22 December 2016 the Director again rejected the Applicant’s claim on all applicable grounds including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

5.  By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 April 2016, but for which he failed to attend an oral hearing scheduled on 4 May 2017 without any explanation, and the Board proceeded to deal with his appeal regarding his claim on all applicable grounds including BOR 2 risk in his absence and on paper. On 18 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

6.  On 14 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he rejects their decisions for disregarding the danger and threats he faces in his home country but without providing any particulars or elaborations how they were so or putting forward any proper ground for his intended challenge. 

7.  By then the Applicant was also seriously outside the 3-month period required by Order 53 rule 4(1) of the High Court Ordinance, Cap 4 to make his leave application, and for which he did not provide any explanation either.

8.  However, before his application could be dealt with by the court, the Applicant on 10 September 2020 filed an affirmation requesting to withdraw his application because his problem in his home country has been solved, and that he wants to return to his home country as soon as possible.

9.  In the premises and as the basis for his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly, I accede to his request and dismiss his leave application.   

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