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HCAL 228/2020
[2025] HKCFI 2066
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 228 OF 2020
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Veeraiah Subramaniyan |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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 (Non-refoulement Claims) Teresa Wu:
(1) Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.
(2) The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) filed on 21 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 8 January 2020 (“the Board’s Decision”) affirming the decision of the Director of Immigration (“the Director”) dated 29 March 2018 (“the Director’s Decision”), which rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).
Background
2. The Applicant’s personal background, his case and claim, the facts alleged by him to show that he would be harmed or killed in India, and the immigration and procedural history, etc. have been comprehensively set out in the Board’s Decision. It is not necessary for me to reiterate them here. For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions herein.
Discussion
3. The Applicant’s intended application for judicial review is not reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).
4. In gist, the Applicant asserts that he has consistently supported DMK, attending numerous party meetings, rallies, and participated in party activities since the age of 18. He fears for his safety due to harm from members of ADMK, as he served as the Secretary of DMK in 2013.
5. However, the Director highlighted issues that raised serious concerns about the credibility of the Applicant’s claim. Notably, there was no election in the year 2013. The relevant election occurred at a much later time and was also not a result of the previous incumbent’s death. In addition, it was noted that the Applicant struggled even to recall the name of the candidate he allegedly campaigned for, and much of his claim relied on third-hand accounts of events he did not personally witness. Furthermore, even if the Applicant’s claim were true, they did not pertain to material events. He could also have relied on sufficient protection from the authorities or relocated within the country both safely and reasonably.
6. After considering all the available evidence, including those submitted by the Applicant, it was accepted by the Board that “there is no area of the [Applicant]’s claim not affected by serious indicators of negative credibility”. It was therefore concluded that no credence could be attached to, essentially, “anything” he asserted, except for his undisputed nationality. As a result, his claim for non-refoulement was rejected on the grounds that there was no Persecution Risk, BOR 3 Risk, BOR 2 Risk, or Torture Risk.
7. The Applicant has failed to demonstrate that the Board made any errors in reaching its decision, or that any procedural unfairness took place.
8. On the other hand, I have examined the Board’s Decision with rigorous scrutiny, applying an enhanced standard in light of the seriousness of the issues involved. I am satisfied that the Board correctly applied the law and key legal principles relevant to the Grounds and upheld a very high standard of fairness.
9. It is well-established that the merits of a non-refoulement claim are matters for the primary decision-maker and the Court should not usurp the role of the Board in the absence of any valid public law grounds (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, etc.).
Conclusion
10. For these reasons, I make an order that the Leave Application be dismissed.
Dated the 16thday of July 2025
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(Edison Ho)
for Registrar, High Court |
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 Applicant:
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 16/07/2025
Veeraiah Subramaniyan
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 16/07/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11204/18/4/214/IN2175
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 676/18 (formerly RBCZ 12421/15) (T8I65)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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