SHANMUGARAJ, PRASANNA VENKATESH v. TORTURE CLAIMS APPEAL BOARD

HCAL 946/2020

[2025] HKCFI 2825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 946 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.      On this court’s own motion, the name of the applicant be amended to “Shanmugaraj, Prasanna Venkatesh”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 6 April 2020”.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 19 May 2020 and filed on 21 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision received by post on 6 April 2020. The Torture Claims Appeal Board (“the Board”) only made one decision dated 6 April 2020 (“the Board's Decision”). Hence, it must be the decision that the applicant referred to in the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000946_2020_files/the_Board's_Decision.pdf

2.  The Board determined that the applicant was not at risk. There was no risk on all the applicable grounds under the Unified Screening Mechanism (‘the USM”) for the applicant. The Board also found that internal relocation was a reasonable and practicable option for the applicant. Hence, the Board decided that the applicant’s appeal/petition failed, rejected the applicant’s claim for non-refoulement protection and confirmed the decision of the Director of Immigration (“the Director”) dated 8 January 2020.

Amendments

3.  In Form 86, the applicant spelt his own name wrong, named himself as the putative respondent and named “Torture Claim Apeal Board and Immigration Department of Hong Kong” as the putative interested parties, when the Board should be named as the putative respondent and the Director should be named as the putative interested party.

4.  Thus, on this court’s own motion, the applicant’s name is amended to “Shanmugaraj, Prasanna Venkatesh”, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 April 2020” on this court’s own motion.

The applicant’s case

6.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

7.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, he feared being seriously harmed or even killed by his enemy called Sugeer who was a moneylender, as the applicant was unable to repay a large sum of money loaned from Sugeer for him to start his own business of land sales in Tamil Nadu.

Grounds for judicial review

8.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

9.  However, the applicant did not advance any ground for his intended judicial review in Form 86, nor in his supporting affirmation filed on 21 May 2020. He only stated in the affirmation that he got the decision on 6 April 2020.

Discussion

10.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

11.  Thus, despite that the applicant had failed to advance any ground for the intended judicial review, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

12.  In assessing the applicant’s claim, the Board held an oral hearing on 19 March 2020 with Tamil/English interpretation provided. The applicant was present and the Board proceeded with the determination of the applicant’s claim by way of a rehearing.

13.  The Board questioned the applicant in detail to clarify the issues and incidents that gave rise to his non-refoulement claim. The Board found the applicant’s core evidence sketchy, minimalistic, significantly inconsistent, shifty and inherently implausible. Thus, the compelling conclusion, as found by the Board, was that the core parts of the applicant’s evidence were unworthy of belief.

14.  The Board made specific findings of facts that: (1) there was no loan as the applicant had so asserted; (2) the applicant had never been engaged in the business of land sales; (3) no one had mistreated him and/or his family members; (4) no complaint to the police had ever been filed; (5) Sugeer was a fictitious character invented by the applicant; (6) the applicant had not been at risk whatsoever; and (7) he would not be at risk of any harm upon his return to his home country.

15.  Regarding state protection, the Board found that the applicant had not sought for assistance from the police or the Indian authorities when he was in India. His evidence that the police at the Krishnagiri police station failed to take up his father’s complaint was mere hearsay evidence, and the Board did not accept that such complaints were in fact made. Reliable country of origin information showed that even if there was a failure on the local police officer(s) to register and follow up on a First incident Report, there were channels of redress. Thus, the Board found that reasonable state protection was available to the applicant should he need it.

16.  Despite its finding that the applicant was not at risk on any of the applicable grounds under the USM, the Board also made a full assessment on the viability of internal relocation for the applicant. The Board found that even if the threat from Sugeer were real, the threat was a localized one. The applicant could safely relocate to other parts within India, such as Bangalore, without undue hardship.

17.  The finding of facts relating to a non-refoulement claim is solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong in the way the Board reached its conclusion.

18.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

19.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

20.  For reasons aforesaid, the Leave Application is 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

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