Ganesan Sathiyaraj v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [Decision On Leave Application]

Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 1006
Year2020
Judgement NumberHCAL1637/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1637/2018 GANESAN SATHIYARAJ v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1637/2018

[2020] HKCFI 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1637 of 2018

BETWEEN

Ganesan Sathiyaraj Applicant
and
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent

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 oral submission by the Applicant 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 is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1(2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 8 August 2019.

2. I have identified the following defects in Form 86 for his application:

a. wrong description for the respondent; and

b. wrong description of the Board’s decision for his relief.

3. Pursuant to the powers under O.53, r.3(6) and O.20, r.8, RHC, I granted leave for him to amend Form 86 by:

a. deleting the wrong information and adding the Board as the respondent (O.20, r.8);

b. deleting the wrong information and adding the relief of leave to apply for judicial review of the Board’s Decision dated 9 August 2018 (O.53, r.3(6)).

The applicant

4. The applicant is an Indian national. He came to Hong Kong as a visitor on 1 April 2016. He was permitted to stay until 15 April 2016. He overstayed and surrendered to the Immigration Department on 18 April 2016. On 14 July 2016, he was convicted of the offence of breach of condition of stay. He was passed a suspended sentence. He lodged his non-refoulement claim on 5 July 2016 and 15 July 2016.

5. In support of his claim, he said that if refouled, he would be killed by his employer, Vengidasalam (“V”) because of money dispute and that he had knowledge of V’s illegal money transactions with other parties.

6. He said that he was a junior software engineer when he joined V’s company. He had access to confidential and illegal information relating to the company’s money transfer to other parties. He borrowed money from V to set up his own business of buying and selling computer parts. At the beginning of his business, he was able to make profits where V demanded a sharing 25% of his profit on top of the interest on the loan. The business turned bad by December 2014, but V refused to change the term and demanded payment of the profit. He had to borrow money from other source to pay him. He threatened V that if pressed, he would divulge the confidential information. V sent some people to assault him when he left office. He was unconscious and found himself in the hospital when he came round. He did not go elsewhere after this attack and was so depressed that he thought of committing suicide. He was approached by an agent, who arranged his departure from India for Hong Kong upon payment of agency fee.

The Director’s...

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