AI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2271/2020

[2023] HKCFI 142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2271 of 2020

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by counsel for the Applicant in open court;

1.   There be an order in terms of the applicant’s summons dated 18 October 2022 for the amendment of Form 86 and the affirmation evidence;

2.   Leave for the applicant to apply for judicial review of the Board’s Decision be refused and the application be dismissed;

3.   The anonymity order dated 12 November 2021 be lifted forthwith; and

4.   Costs of this application and the hearing be in the cause of the proceedings and the costs for the outdated COI be disallowed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 August 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant was represented by Benjamin Chan, Counsel on the instructions of Messrs. Daly & Associates. Counsel informed this Court that the legal service is pro bono.

3.  By ex parte summons dated 18 October 2022, the applicant applied for leave to amend Form 86 and to file the affirmations in support of the amended Form 86. Leave will be formally given below. The Court proceeds on the basis of the amended Form 86 and the additional affirmations.

The applicant

4.  The applicant is a national of India.  He came to Hong Kong on 6 January 2010 and was permitted to remain as a visitor for 3 days. On 7 January 2010, he left Hong Kong for Singapore. He departed India again on 4 May 2010 and arrived in Singapore on 5 May 2010. He then arrived in Hong Kong on the strength of his Indian passport on 11 May 2010 and was permitted to remain in Hong Kong as a visitor for 14 days. He did not leave Hong Kong and had overstayed since 26 May 2010.  On 3 June 2010, he surrendered to the Immigration Department.

5.  By a written representation dated 5 June 2010, he made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degraded Treatment or Punishment. His torture claim was rejected on 6 February 2014. His non-refoulement claim raised on 7 February 2013 was assessed on the other applicable grounds as set out in paragraph 9 below.

6.  His claim was made on the basis that, if refouled, he will be harmed or killed by the authority as he failed to report bail on two criminal cases. Besides, he is in fear of his creditor who was associated with the All India Anna Dravida Munnetran Kazhagam (the “ADMK”) as he failed to repay a loan.

7.  The Board has summarized the factual background of the applicant’s claim[1] as set out below.

(1)  On January 2007 the applicant married his first wife in secret. It was not approved by her parents because she was from the highest caste and he was from a lower caste. Her family learned of their relationship and decided to move her to a different village to marry another man. In order to continue the relationship, they decided to marry the next few days.

(2)  They lived in hiding for the first 4 months, moving from place to place. By April, 2007, he believed that his situation was settled. They moved to his mother’s house in Sivagangai village.

(3)  In May 2007, his first wife was abducted by his father-in-law. When he returned home after work, he went to his father-in-law’s house and demanded to see his wife. Her brother went out to meet him and pushed him. He then left.

(4)  The next morning, he encountered his brother-in-law at the market. They had a dispute about his wife. They pushed each other and his brother-in-law fell and hit his head. He went home as his brother-in-law did not appear to be seriously hurt. Within 10 minutes, police arrived and took him to police station. He was later charged with attempted murder.

(5)  At the police station, he was handcuffed with a bar behind his back shoulder and beaten up for about half an hour. They lashed the soles of his feet with wooden stick, burned his arm with cigarettes. He was beaten repeatedly throughout the night. He lost consciousness several times.

(6)  The next morning, he was transferred to Central Prison Madurai where he was detained for about 27 days before being released on bail.

(7)  About September 2009, he defaulted a loan interest repayment to 2 creditors, Angusamy and kadjenthiran (“the Creditor”). They lent him half a million Rupees to start his milk distribution business. At about the same time, he closed his business. He continued to owe the full principal amount as he was unable to afford payment in previous years. They creditors were connected with the ADMK, a political party in South India.

(8)  Between late September 2009 and early November 2009, he was threatened repeatedly by the creditors. They confronted him at his mother’s home and on the street. They threatened to kill him and disgrace his family.

(9)  For fear of the creditors, on 3 November 2009, he fled to Chennai and stayed in a guest house at Chennai Tamil Nadu.

(10)  About 15 days after he arrived in Chennai, he saw the creditor with 4 men near his guest house. His mother informed him that the creditor went to her house and demanded to know where he was. A friend of his also informed him that the police were searching for him and showed his photograph to people in Chennai.

(11)  He thought that the creditor had great influence in the country. He knew he was not safe and could be located. He therefore contacted his friends to arrange his flight to Singapore and the Hong Kong where he intended to seek protection.

(12)  On 11 December 2009, he arrived in Singapore. On 6 January 2010, he arrived in Hong Kong. He was granted a stay for 3 days, but he returned to Singapore on 7 January 2009. On 13 January 2010, he returned to India and went into hiding in the same guest house in Chennai.

(13)  On 5 January 2010, the creditors entered his mother’s house searching for him. They threatened and attacked his mother and younger sister when they refused to reveal his location. They slapped his mother and sister and damaged the furniture in the house.

(14)  On 6 February 2010, he returned to his mother’s home and sought to avenge the attack. He met the creditor on the way to their house. He assaulted the creditor with a knife. One was cut on the face and became unconscious and the other one dropped on the floor after being stabbed on the head and some areas of the torso. He was arrested by police in another area after fleeing from the scene.

(15)  Upon arrival at the police station, he was beaten with police baton and wooden poles and stomped on his chest. They did that may times until he lost consciousness. His mother and sister were also arrested and detained for about 18 days.

(16)  On 6 February 2010, he was taken to a government hospital. They treated his bruises briefly with cream and painkillers. He was then transferred to the Madarai Central Jail. He was beaten up by police officers 2 or 3 times on the first day. He was then taken to the hospital facility of the Jail where he was given cream and some tablets. He was detained in that prison for 22 days.

(17)  On 28 February 2010, he was released on bail and was required to report to police 3 times a week for the first month. In late March 2010, he was no longer required to report to police and could live on location of his choice.

(18)  In about early April 2010, his mother and sister told him that the creditors had sent men to his house to find him. He fled to Chennai and stayed with his friend Vel Karthik. Out of fear for arrest and torture by police, he determined to flee India.

(19)  In April 2010, he travelled from India to Singapore and remained there for about 15 days. On 11 May 2010, he travelled from Singapore to Hong Kong for the purpose of seeking protection in Hong Kong.

(20)  On 23 September 2010, he was confronted by 10 to 15 Indian and Sri Lankan descent at his home. They demanded money and that he purchased alcohol for them. He knew that those men lived in his area and were dangerous, so he complied with their request. Later, they demanded more money and threatened him with a knife. They assaulted him and cut his face with a broken bottle, strangled him and stomped on his hands. A witness called the police. He was taken to Tuen Mun Hospital where he received treatment until 25 September 2010.

(21)  On 5 December 2010, he was confronted by those attackers. They demanded him to withdraw the case against them for the attack in September 2010 and offered him money. Then one of them called one of the creditors Kadjenthiran (“K”) and put him on speaker phone. The attackers asked K for money for lawyers because they acted on his instructions. K then told the attackers that he would pay their legal fees if they sent him (the Petitioner) back to India.

8.  Details of the facts are set out in paragraph 9 of the Director’s Decision dated 6 August 2018 (the “Director’s Decision”) and paragraphs 23 to 26 of the Board’s Decision.

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that his evidence was not credible as it was vague, exaggerated and inconsistent, leading to the conclusion that it was fabricated in support of his claim [17]-[18]; (ii) state protection was available to him [20]-25]; and (iii) internal relocation was a viable alternative [27].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 11 March 2020, the Board conducted an oral hearing for his appeal. The applicant and the Director were respectively legally represented before the Board.

12.  Having considered and analyzed the evidence and materials before it, the Board concluded:

“64. As this Petition is by way of a rehearing, I have carefully considered the piles of documents and submissions.

65. By reasons of aforesaid, this Petition is dismissed.”

13.  The Board first set out the relevant statutory provisions and Convention in relation to the grounds of the claim set out in paragraph 9, supra. Then, it set out the factual background as those set out in paragraph 7, supra.

14.  The Board referred to the oral hearing and evaluation of the applicant’s evidence. At the hearing, the applicant was tendered for questions and he adopted what were stated in the hearing bundle which consisted of 2 box files and a pile of extra evidence and submissions.[2] At paragraph 26, the Board said:

“Having carefully gone through all available information, I find that the case for the Petitioner was not one who had been bullied or targeted. On the contrary it was he who assaulted his counterparts.”

15.  I shall highlight the significant parts of its findings for the present discussion. In particular, the Board found that the applicant had no intention to repay the debt.[3] It further found that it was the applicant’s bare allegation that the creditor was connected with ADMK as no political party would use its influence to assist someone who was not even a member but only connected with the party to collect a debt which was just and owing to that individual.[4]

16.  Having analyzed all the facts, the Board found the following facts:

(1)  “The Petitioner had not been inflicted with any injury either by the brother-in-law of his first wife nor by the creditor(s).

(2)  He had never made any attempt to repay the debt which was just and owing to the creditors.

(3)    a)  Instead of repaying the creditors he spent substantial amounts travelling from India to Singapore, staying there for some time before coming to Hong Kong.

b)  Flew back to India via Singapore

c)  Flew to Singapore again without coming to Hong Kong direct and stayed in Singapore for about 15 days on the pretext that a Muslim stranger having no money asked him to stay and then eventually gave him money to travel to Hong Kong. It was illogical as to why he had to go to Singapore first without flying direct to Hong Kong.

(4)  His creditors had made no attempt to inflict injury on him. At best, they threatened him with a view to recoup the debt.

(5)  His arrest and detention on the 2 occasions when he was arrested were just according to the evidence.

Thus he has not made out a case where he needed non-refoulement protection."[5]

Ground for leave to apply for judicial review

17.  In the amended Form 86, the applicant set out the grounds in support of his application below.

(1)  The Board erred in law by failing to take account of relevant COI suggesting that meaningful state protection is unlikely to be available if the applicant is returned to India. Its ruling that the applicant would be able to avail himself of state protection was therefore irrational, unreasonable, or Wednesbury unreasonable. Further and alternatively, the Board acted procedurally unfairly because it had cherry-picked or overlooked the relevant COI.

(2)  In assessing torture risk, the Board failed to apply properly the definition of torture (under the Convention Against Torture) to the facts unchallenged concerning the police treatment of the applicant as a detainee.

(3)  The Board erred in law by failing to have proper regard of the substance of the applicant’s claimed fear.

(4)  The Board was procedurally unfair by making adverse findings of fact and credibility based on subjective, speculative or unqualified criteria.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 para 45.

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.  Before discussing the grounds raised by the applicant, I shall set out the common understanding with counsel acting for the applicant at the hearing before myself. Counsel agreed that the applicant had admitted having pushed his wife’s brother onto the ground and he was accused by police of attempted murder; that he had borrowed money from the creditor and failed to repay the loan; that he had stabbed the creditor with a knife causing a laceration on one’s face and a stab wound on another man’s head and that he had jumped bail. He is therefore a fugitive from India. His grounds in support of his non-refoulement protection are that if he returns to India, he will be tortured by police or may die in jail because of the consistent pattern of gross violation of human rights in India’s police custody and in jails.

Ground (1) The Board erred in law by failing to take account of relevant COI suggesting that meaningful state protection is unlikely to be available if the applicant is returned to India. Its ruling that the applicant would be able to avail himself of state protection was therefore irrational, unreasonable, or Wednesbury unreasonable. Further and alternatively, the Board acted procedurally unfairly because it had cherry-picked or overlooked the relevant COI.

22.  Counsel has cited extensively the articles submitted before the Board and complained that the Board did not considered them or did not give sufficient reasons not to accept them. The purpose of citing the articles is to show the widespread practice of torture in police custody, the documented deaths in police custody and prison custody, and the fact that public servants enjoy impunity from criminal prosecution. The articles cited include:

(1)  Asian Centre for Human Rights, Torture in India 2010 (April 2010);

(2)  Section 197 of the Criminal Procedure Code 1973;

(3)  Amnesty International, India Briefing on the Prevention of Torture Bill (October 2010);

(4)  South Asia Human Rights Documentation Centre, Impunity and World Torture Day (Human Rights Features, 26 June 1999);

(5)  U.S. Department of State, 2009 Human Rights Report: India;

(6)  Amnesty International, Indian Government Should Ensure Torture Law Meets International Standards (13 October 2010);

(7)  South Asia Human Rights Documentation Centre, Impunity and World Torture Day (Human Rights Features, 26 June 1995);

(8)  Human Rights Watch, Bound by Brotherhood: India’s Failure to End Killing in Police Custody (2016)

(9)  Amnesty International, Amnesty International Report 2017/18;

23.  As can be seen from the dates of those articles, many of them are over 10 years ago.

24.  The Board had considered COI, which corroborated the applicant’s assertion and those, which militate against the applicant’s assertion as well. The corroborative COI are:

(1)  Country Reports on Human Rights Practices for 2014: India published by the United States Department of State (the “2014 USSD Report”);

(2)  The 2012 United Kingdom Border Agency Country of Origin Information Report of India (UKBA Report);

(3)  2016 Country Reports on Human Rights Practices – India, published by the United States Department of state.[6]

25.  The COI, which militate against the applicant’s assertion are:

(1)  UKBA Report of India;

(2)  The First Information Report [F.I.R.] booklet issued by the Commonwealth Human Rights Initiative;

(3)  The UKBA 2012 Report;

(4)  Section 4 of the 2014 USSD Report in India; and

(5)  The 2015 UK Home Office Country Information and Guidance India.[7]

26.  Those articles considered and cited by the Board are more updated than those cited by the applicant’s duty lawyer before the Board.

27.  Counsel has no reason to make the complaint that the Board did not deal with the duty lawyer’s cited articles because all the articles are on the same subject matters, that is, the police practice and the improvements by the Indian Government in recent years. The Board has a duty to make a balanced analysis on the issues before it. The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, 21 December 2012 held:

176. …the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.

184. … … it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. … …”

28.  It is not helpful for the duty lawyer to refer to the outdated articles to the Board for its consideration in view of the Court of Final Appeal’s direction above. It is a waste of time and costs for the proceedings before the Board, contrary to the spirit of the Civil Justice Reform. Any costs for those outdated COI should be disallowed in costs. Having considered the relevant materials both for and against the applicant’s assertions, the Board was entitled to form its own views on the matter. The Board should not be blamed for not referring to the outdated materials because they are no longer useful for fair assessment of the case.

29.  Counsel submitted that the COI are for the purpose of proving that if the applicant is repatriated, he would be subjected to police or jail torture under the BOR 3 risk. However, this is only half of the requisite proof. The applicant bears further burden of proving that he is “personally at risk’ as according to the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, which held:

“28. Thirdly, what is the standard of proof? Here, one must differentiate between two things. The first is proving the risk of torture, that is, the likelihood or probability of the torture claimant being subjected to torture if he were to be expelled, returned or extradited to a particular country. It is in this context that one sees the literature and case law saying that the “standard of proof” required is “more than a mere possibility” but not needing to be “highly likely”. All these are used to describe the risk of torture occurring in the country concerned. Thus, in the latest Guidelines (February 2011 version) issued by the Director for handling claims under the enhanced screening process, para 36, under “Standard of Proof”, one finds this undisputed statement:

“… In Article 3 of the Convention, ‘substantial grounds’ is required to establish a claim, which is more than a mere possibility of torture but do not need to be highly likely to occur to satisfy that provision’s conditions.  The risk of torture must go beyond mere theory or suspicion.  The risk does not have to meet the test of being ‘highly probable’, but it must be ‘personal and present’. For the purposes of Article 3 of the Convention, a foreseeable, real and personal risk of being tortured must exist in the country to which a person is returned.”

29.  Whilst the decision-maker must take into account all relevant considerations including, where applicable, the existence in the country concerned of “a consistent pattern of gross, flagrant or mass violations of human rights” (article 3(2) of the CAT), that alone does not as such constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return to that country.  Additional grounds must exist to show that the person will be “personally at risk”.  This is because the aim of the determination under the CAT is to establish “whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return”.  Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her circumstances.  AS v Sweden, CAT/C/25/D/149/1999, UN Committee Against Torture (CAT), 15 February 2001, para 8.3.”

30.  The applicant has not raised additional grounds to prove that he will be personally at risk before the Board.

31.  This ground fails.

Ground (2) In assessing torture risk, the Board failed to apply properly the definition of torture (under the Convention Against Torture) to the facts unchallenged concerning the police treatment of the applicant as a detainee.

32.  The Board found the facts below:

“42. There was no evidence of government officials or police as a whole being involved in both disputes.

43. His allegation of being beaten up by police in the police station or in jail were the misconduct of individual officers who has exceeded the lawful authorities and was not the stance of the government.

44. In any event he had never reported or complained to the police or the authorities. Hence the authorities or government had no knowledge of the misconduct of individual officers.”

33.  Even though the Board did not make a finding on the ill-treatment of the applicant by police amounted to torture under BOR 3 risk, its finding that they were individual instances of police officers’ misconduct, not the police force as a whole or the government has defeated the applicant’s allegation that there is a consistent pattern of gross, flagrant or mass violations of human rights in India, not to mention that he was personally at risk. The issue of state actors is not relevant as the Board had found that the incidents were isolated incidents only. The Board’s view cannot be said to be Wednesbury unreasonable.

34.  This ground therefore fails.

Ground (3) The Board erred in law by failing to have proper regard of the substance of the applicant’s claimed fear.

35.  This ground refers to BOR 2 risk, BOR 3 risk and Persecution risk if the applicant is taken into custody upon return to India as he had experienced in India under the hands of the police.

36.  As the applicant has failed under Ground (1), there is simply no realistic chance for him to succeed on BOR 2 or BOR3 risk. There is no evidence to show that he will be personally at risk upon his return to India. The Board found that since the applicant did not complain against the police officers for his ill-treatment, the Indian Government had no knowledge of their misconduct. As to Persecution risk, counsel for the applicant submitted that the Board should consider whether police officers would be a source of persecution. This is a strange suggestion. Counsel went further to suggest that the creditor and his associates or family members of his former wife’s should be considered if they would pose any persecutory risk. Bearing in mind that the applicant was represented by duty lawyer, there is not submission that duty lawyer had raised these issues for the Board. There is no evidence to support such a possibility. The suggestions attempt to expand the scope of Persecution under the Convention, which is unsupported by any case law or authority at all. I dismiss those suggestions.

37.  Ground (3) fails.

Ground (4) The Board was procedurally unfair by making adverse findings of fact and credibility based on subjective, speculative or unqualified criteria.

38.  Counsel commented that the Board’s credibility findings are in whole or in part subjective or speculative or unqualified, based on personal conjecture when it took the views that it was infantile to allege that a friend of the applicant told him that police were searching for him in Chennai by showing his photograph to people who may know his whereabouts, and that no political party would use its influence to assist someone who was not even a member but only concerned with the party to collect a debt which was just and owing to that individual.[8] The Board passed this remark under the discussion of its finding that the applicant was not one who had been bullied or targeted. On the contrary it was he who assaulted his counterpart.[9] This comment has no bearing on the applicant’s credibility and it is unnecessary to deal with the credibility of his evidence on the sideline facts. There is no dispute that the main facts are agreed by the applicant as set out in paragraph 21, supra. This comment has nothing to do with the applicant’s credibility. But even if the Board may infer disbelief of such hearsay evidence, this is irrelevant to the Board’s finding of the facts. In my view, this is a subject matter that one can apply common sense to it under the circumstances.

39.  Counsel referred to the Board’s comment that the applicant did not declare his intention to the immigration officer that he came to seek protection and submitted that the Board had unjustifiably rejected the applicant’s genuine intention to seek protection in Hong Kong. Under section 37ZD of the Ordinance, the Board is entitled to take this factor into account to determine the applicant’s credibility. Counsel complained that the Board failed to consider the applicant’s explanation for his delay in making his request for asylum. However, his explanation is not found in the Board’s Decision. As discussed above, the applicant’s credibility is quite irrelevant for the present discussion.

40.  Counsel has raised other sideline facts to say that the Board had not sought clarification or elaboration from the applicant before it impugned the applicant’s credibility. As the applicant was legally represented before the Board and the issues were fully argued by their respective legal representatives, the issue of credibility is, as according to Re: Kartini, at the discretion of the Board. The Board has no duty to perfect the applicant’s case for the applicant. The reference to Re Masud MD [2021] HKCA 1449 is a case where the applicant was unrepresented[10]. The Court of Appeal in Buniag Renante Lulu v Torture Claims Appeal Board and Director of Immigration [2022] HKCA 836 (13 June 2022) held:

“25 The Court of Appeal in Re Masud MD did not lay down a rule that a ‘warning’ must be given whenever applicants refuse to give evidence or to answer questions from the Board, that their case will bound to fail unless they continue to participate in the oral hearing. Rather, the Court of Appeal held that the Board would have to consider as a matter of fairness and on the facts before them, that in cases where the applicant’s refusal to give evidence would be fatal to his or her claim, the applicant should be given notice that some aspects of his or her evidence would not be accepted or his or her credibility in that regard would be impeached. It may also be necessary in some cases to draw the applicant’s attention to the perceived inconsistencies, gaps, lack of particulars in the applicant’s asserted facts based on an assessment on the written materials before the Board, and to provide an opportunity to the applicant to respond if he or she wishes to.”

41.  As the applicant was legally represented before the Board, this case bears no resemblance to Re Masud MD’s case.

42.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

43.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

DISPOSITION

44.  I shall make an order in terms as follows:

(1)  there be an order in terms of the applicant’s summons dated 18 October 2022 for the amendment of Form 86 and the affirmation evidence;

(2)  leave for the applicant to apply for judicial review of the Board’s Decision be refused and the application be dismissed;

(3)  the anonymity order dated 12 November 2021 be lifted forthwith;

(4)  costs of this application and the hearing be in the cause of the proceedings and the costs for the outdated COI be disallowed.

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