KULDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2349/2018

[2020] HKCFI 1420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2349 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;

Leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The Applicant is a national of India who arrived in Hong Kong on 29 September 2009 with permission to remain as a visitor up to 13 October 2009 when he did not depart and instead overstayed and was arrested by police on 31 October 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.    

2.  By a Notice of Decision dated 17 August 2017 the Director of Immigration (“the Director”) rejected his non-refoulement claim on all the remaining applicable grounds other than torture risk but included risk of his 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”).

3.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and on 12 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

4.  On 25 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge.

5.  However, before his application could be dealt with by the court, the Applicant on 18 June 2020 filed an affirmation requesting to withdraw his application because his problem in his home country has been resolved and that he wants to go home.

6.  As such and given the fact that the basis of his claim no longer exists, it would be appropriate that his application be dismissed rather than withdrawn.  Accordingly I 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