Nagamuthu Veerapandian v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3205/2019

[2025] HKCFI 3520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3205 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant had applied to the Director of Immigration (“the Director”) for non-refoulment claim and the Director had made the following Decisions:

(1)  Notice of Decision dated 21 November 2014 on Torture risk, BOR 3 risk and Persecution risk (“the Director’s 1^st Decision”); and

(2)  Notice of Further Decision dated 8 June 2017 on BOR 2 risk (“the Director’s 2^nd Decision”).

2.The Director rejected the applicant’s claim on the above applicable risks and the applicant appealed the Director’s Decisions to the Board. The Board had made the following Decisions:

(1)  Decision dated 3 January 2017, dismissing his appeal against the Director’s 1^st Decision (“the Board’s 1^st Decision”); and

(2)  Decision dated 4 October 2019, dismissing his appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

3.By Form 86 filed on 28 October 2019, the applicant applied for leave to apply for judicial review of the Board’s 1^st Decision. He is out of time. He did not apply for leave for judicial review of the Board’s 2^nd Decision.

4.This Court will exercise its case management power[1] to amend Form 86 to the effect that the applicant’s application should include the Board’s 2^nd Decision, in which case, the application will be within time.

5.The reasons for this Court to do so is that the facts in support of the applicant’s claim, including BOR 2 risk, are the same. It is reasonable to expect the applicant to make another application for the Board’s 2^nd Decision if the Court only deals with the Board’s 1^st Decision. In order to avoid duplicity of proceedings and to save time and costs, this Court considers it appropriate to deal with all the applicable risks together.

6.The applicant asked for a hearing. However, he was absent at the hearing on 18 June 2025. I shall deal with his application on the papers.

7.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party; and decisions in respect of which relief is sought include the Board’s 2^nd Decision.

The applicant

8.The applicant, aged 41, is a national of India. He came to Hong Kong as a visitor on 12 February 2009. He overstayed since 27 February 2009 and was arrested by police on 13 April 2009. He lodged a non-refoulement with the Director on the basis that, if refouled, he will be harmed or killed by Nallappan, the chairman of a local Board of his home district in India, and his former employer Saravana, who alleged that the applicant had stolen 800,000 Rupees from his store.

9.According to the applicant, Nallappan and his family had arguments and conflicts and Nallappan had threatened to harm his family. In March 2018, they had a dispute over water shortage caused by Nallappan and the applicant and his elder were attacked by Nallappan’s people with poles and sticks. They had reported the matter to police, which did not make investigation. He had to live in different places in order to avoid Nallapan. Later, he returned to Chenmai where he worked for New Saravana Store, dealing with bills. Saravana owed this store. Saravana discovered money was lost, he suspected the applicant and his other colleagues were the thieves. Saravana called his subordinates to take the applicant to a place where they attacked him with sticks. He managed to escape from the place and ran to live in his uncle’s place. His uncle arranged for his flight for Hong Kong.

10.Details of his story are set out at paragraph 16 of the Board’s 1^st Decision.   See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003205_2019_files/1st_Board's_Decision.pdf.

The Director’s Decisions

11.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

13.Upon the advice of the Director, the applicant submitted additional material to the Director in support of his claim under risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

14.By the Director’s 2^nd Decision, the Director dismissed the applicant’s claim on BOR 2 risk.

The Board’s Decisions

15.The applicant appealed the Director’s 1^st Decision to the Board. On 30 June 2015, the Board conducted an oral hearing for his appeal and he was represented by a duty lawyer under the Duty Lawyer Service. The Director was represented by a government counsel.

16.Having considered the evidence, the Board had made the following findings and for those reasons, by the Board’s 1^st Decision, the Board dismissed his appeal against the Director’s 1^st Decision.

(1)  The applicant was not a reliable witness and there were a lot of contradictions and hearsay in his evidence. [18]

(2)  State protection will be available to the applicant if he returns to India. [24]

(3)  The injury inflicted on him was a personal dispute, not under section 37U(1) of the Ordinance. 25 (c )

(4)  There was no evidence that the state was involved. [25 (d)]

(5)  There was no evidence that Saravana had the intention to kill him. [26]

(6)  The dispute with Saravana was purely a personal dispute and the state was not involved. [26(e)]

(7)  There was no evidence that the disputes were on account of race, religion, nationality, membership of a particular group or political opinion under Persecution risk. [33]

17.The applicant had also appealed the Director’s 2^nd Decision to the Board.

18.The Board assessed his appeal on the papers without an oral hearing.  Having considered the additional materials, the Board found that there was no substance in his grounds of appeal and, by the Board’s 2^nd Decision, it dismissed his appeal against the Director’s 2^nd Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003205_2019_files/2nd_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

19.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decisions (as amended by Court).

20.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decisions.

DISCUSSION

21.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

23.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.The applicant has raised no valid ground to challenge the Board’s findings.

25.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decisions.

DISPOSITION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decisions.  Accordingly, I dismiss his application.

Dated the 27^th day of August 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