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Re Padikkasu Kasinathan

Judgment Cited authorities 13 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 January 2021
Neutral Citation[2021] HKCA 91
Judgement NumberCACV275/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV275/2020 RE PADIKKASU KASINATHAN

CACV 275/2020

[2021] HKCA 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2020

(ON APPEAL FROM HCAL 1881 OF 2018)

________________________

RE: PADIKKASU KASINATHAN Applicant

________________________

Before: Hon Au JA and G Lam J in Court

Date of Hearing: 19 January 2021

Date of Judgment: 27 January 2021

_________________

J U D G M E N T

_________________

Hon G Lam J (giving the Judgment of the Court):

1. This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 15 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review was directed at the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 4 September 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated respectively 25 September 2015 (“the Director’s First Decision”) and 16 August 2017 (“the Director’s Second Decision”) rejecting the applicant’s non‑refoulement claim (collectively as “the Director’s Decisions”).

2. The applicant filed his Notice of Appeal on 22 July 2020. By a letter of the same date, the applicant consented to the appeal being heard by a two‑member court.

A. Background

3. The applicant is a national of India, aged 35. He entered Hong Kong on 27 March 2007 as a visitor but had overstayed since 11 April 2007. He was arrested by the police on 3 November 2009. On 5 November 2009, he lodged a torture claim,[2] which was rejected by the Board on 7 October 2013. His non‑refoulement claim was then assessed on all applicable grounds other than torture risk.[3]

4. The details of the applicant’s claim and his personal background were set out in paragraph 8 of the Director’s First Decision, and paragraphs 21‑46 of the Board’s Decision.

5. The applicant claimed that he would be harmed or killed by members of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”) because he was a member of their rival party Dravida Munnetra Kazhagam (“DMK”). The applicant claimed to have joined the DMK in 2005 and to have been assisting them in elections. The applicant’s assistance of DMK irritated the members of AIADMK who constantly threatened him and also attacked him on several occasions. He also claimed that a policeman, Mr Thurai (“T”), who was also affiliated with AIADMK, had a grudge against him because of his relationship with T’s daughter. In order to avoid the AIADMK, the applicant left for another city but the AIADMK members hunted him down. Out of fear, he fled to Hong Kong for protection.

B. The Director’s Decisions and the Board’s Decision

6. The Director assessed the BOR3 risk[4] and the persecution risk[5] in the Director’s First Decision while the Director’s Second Decision covered the assessment of the BOR2 risk.[6] The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected his claim.

7. The applicant appealed to the Board. A hearing was held on 28 November 2017, during which the applicant answered questions from the Board. Having considered the applicant’s oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

8. The Board found that the applicant’s evidence was vague and generalised, that the core of his case lacked credibility, that there were unexplained inconsistencies between his torture claim form and what he said in evidence, and that much of his evidence consisted of hearsay and speculations. The Board did not believe that the applicant was giving a truthful or accurate account of his experiences in India, and concluded it could not attach any weight to his evidence (paragraphs 47‑59 of the Board’s Decision). On this basis, the Board dismissed his appeal.

C. The Deputy Judge’s Decision

9. The applicant filed a Form 86 on 10 September 2018 seeking leave to apply for judicial review against the Board’s Decision though the Director was named as the proposed respondent. At the hearing on 23 October 2019 before the Deputy Judge, leave was granted to the applicant to amend the Form 86 to substitute the Board as the intended respondent. In the applicant’s supporting affirmation, the only ground for judicial review put forward was that the Board’s Decision was based on the information from the Internet, and that the Board did not investigate the facts about the location where the applicant faced risks of harm. According to the applicant, he, being a strong DMK member working and campaigning for his party, faced torture and death threats.

10. After hearing the applicant and considering the materials before him, the Deputy Judge dismissed the application for the reasons set out in paragraphs 13 to 17 of the Deputy Judge’s Decision:

“ DISCUSSION

13. The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer explained the Director’s Decision to him, He understood the Board’s Decision himself.

14. 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.’

15. His grounds in support of his application do not assist him.

16. The...

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1 cases
  • Re Padikkasu Kasinathan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 29 April 2021
    ...therefore dismissed. (Thomas Au) Justice of Appeal (Godfrey Lam) Judge of the Court of First Instance The Applicant acting in person [1] [2021] HKCA 91. ...

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