Kewal Krishan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3272/2019

[2025] HKCFI 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3272 OF 2019

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge To:

1.  Leave to amend the Form 86 granted;

2.  Application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

3.  Application for leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 4 November 2019 (the “Leave Application”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 26 October 20.. (illegible). A copy of a decision of the Board dated 25 October 2019 relating to the Applicant and in respect of which leave to apply was sought is annexed to his supporting affirmation. Despite the differences and ambiguities about the date of the decision sought to be reviewed, it is clear that the Applicant’s intention was to apply for leave to apply for judicial review of the Decision of the Board dated 25 October 2019 (the “Decision”) refusing his appeal against the Notice of Decision of the Director of Immigration (the “Director”) dated 28 May 2018 refusing his application for non-refoulement protection (the “Notice”). Hence, leave is granted to amend his Form 86 making the Decision the subject matter of his leave application.

2.Shortly before his leave application came to be processed, he wrote to the Court via the Immigration Department expressing his wish to return to his country because all his problems there are cleared. He specifically requested that his application for judicial review in the High Court be dismissed.

3.In gist, his claim for non-refoulement protection is founded on the basis of his fear of being killed by the father of a Hindu girl, with whom he had developed a relationship when he started college in 2001. The Applicant claimed that the father of his Hindu girlfriend is a Hindu fundamentalist who hated Sikhs and wanted to kill the Applicant because he objected to their relationship and that he was a Sikh. He also claimed that as the father is also a powerful and influential person and a member of the Akali Dal political party, state protection and internal relocation are not viable options to avoid the threat.

4.The centerpiece of the Applicant’s case is that he had developed a secret relationship with his Hindu girlfriend when he was in college in 2001 or 2002. On the other hand, it is his evidence that he started school when he was six years old and completed 12 years’ of schooling. The Board found on his evidence that he must have been 18 when he finished school and that unless he started grade one at the age of four or finished year 12 two years early (and the Applicant has not claimed to have done either of these things), he could not have been in college in 2001, commenced a relationship with his Hindu girlfriend in 2003 and the rest of the timeline of his case could not have happened. The Board considered his evidence exaggerating, uncertain and even untruthful. It found this is not a case in which the centerpiece could stand in the face of such evidence. It was satisfied that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the Unified Screening Mechanism (“USM”). Further, on the basis of authoritative and credible country of origin information, the Board found adequate state protection is available and internal relocation feasible to avoid the alleged threat, even if it were true. Hence, it dismissed his appeal against the Director’s decision in the Notice.

5.The Applicant’s letter to withdraw might not have fully or strictly met the conditions for withdrawal. However, it confirmed the correctness of the Board’s Decision and unequivocally expressed his intention not to prosecute his leave application. He has not put forward any specific grounds of review. Having rigorously examined the Decisions, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Court could not detect any possible errors of law, procedural unfairness or irrationality in the Decision. In the circumstances, it is just and appropriate to dismiss his leave application for want of prosecution.

6.The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant, if he had already been removed.

Dated the 16^th day of January 2025.

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