VEERIAH RAVICHANDRAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 2213/2019

[2020] HKCFI 2086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2213 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Observations for the Applicant:

1.  The Applicant is a national of India who had raised a non-refoulement claim with the Immigration Department on the basis that if he returned to India he would be harmed or killed by some men for having witnessed their murder of another man on the street in his home district in 2016, and when those men were going after him to threaten to kill him for having witnessed the murder, he departed India and fled to Hong Kong for non-refoulement protection.      

2.  By a Notice of Decision dated 17 April 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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.  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 murderers upon his return to India as low due to the absence of or 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 show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million square kilometers 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 large cities such as Delhi or Mumbai where it would be difficult if not impossible for those murderers to locate him.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 21 February 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 2 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely attached a copy of the decision without putting forward any ground for his intended challenge.

6.  However, before his application could be dealt with by the court, the Applicant on 6 August 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 home. 

7.  As such and as the basis for his claim no longer exists, it would be more appropriate for his application to be dismissed rather than withdrawn.  Accordingly I dismiss his 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