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HCAL 1326/2024
[2024] HKCFI 3661
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1326 of 2024
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BETWEEN
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Shetty Manoj Kumar |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge Levy:
1. The Form 86 is amended on the court’s own motion;
2. Leave to the applicant to withdraw the Leave Application; and
3. The Leave Application be dismissed.
Observation for the Applicant:
Introduction
1. By prescribed Form 86 filed on 12 August 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 1 August 2024 (“Board's Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 12 April 2024 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.
2. In Form 86, the applicant named the Board and the Director together as the proposed respondent(s) and the Board as the interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.
Background
3. The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.
4. The applicant is a national of India. According to immigration records, the applicant came to Hong Kong on a visitor visa. Upon the expiry of his visa on 11 January 2024, the applicant had overstayed, and was later arrested by police on 15 February 2024. After he was referred to the Immigration Department, he lodged a non-refoulement claim on 21 February 2024 covering all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicant’s claim was based on a fear of being harmed or killed by Dinesh (son of his maternal grandfather’s second wife) over a farmland dispute.
5. The Director decided against the applicant’s claim on all the above applicable grounds. The Director found that the land dispute between the applicant and Dinesh was a pure private dispute that had no government involvement. After having referred to the country of origin information (“COI”), the Director was satisfied that state protection was available and internal relocation alternatives were not unduly harsh or unreasonable. Hence, the applicant’s appeal to the Board.
6. On 22 July 2024, the applicant attended a hearing before the Board. At the hearing, the applicant adopted the contents of the documents that had been lodged in relation to the refoulement claim and the appeal as the evidence for the appeal. The Board applied the principle of considering internal and external consistency in considering the applicant’s evidence. The Board found that the applicant was not telling the truth, and his case was vague and unbelievable. It was found that there were so many material inconsistencies and discrepancies in a lot of aspects that undermined the reliability of the applicant’s evidence. Notwithstanding the Board’s rejection of the applicant’s claim on credibility, it went on to consider the COI, and found that state protection and the option of internal relocation were available. The Board concluded that the applicant had failed to demonstrate that he was entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.
Legal principles applicable to judicial review
7. As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. 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: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
Discussion and conclusion
8. The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision without providing any grounds in support of his Leave Application.
9. The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in great detail, the Board found that the applicant was not a truthful witness. The findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.
10. In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.
11. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.
12. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Withdrawal of Leave Application
13. On 6 November 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that it was now safe for him to return to his country.
14. Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.
Orders
15. The Form 86 is amended on the court’s own motion.
16. Leave to the applicant to withdraw the Leave Application.
17. The Leave Application be dismissed.
Dated the 24th day of December 2024.
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 24/12/2024
Shetty Manoj Kumar
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24/12/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 23463
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 620/24 (Formerly RBCZ 5000665/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115.
[2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”).
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293.
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