SHRESTHA SANTOSH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

SHRESTHA SANTOSH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

Leave was refused because the adjudicator properly evaluated the evidence, found the incidents did not meet the legal threshold for torture, CIDTP or persecution, concluded state protection was available, and the application was not reasonably arguable under the enhanced Wednesbury/Chan test.

Citation
[2018] HKCFI 1051
Parties
Applicant: Shrestha Santosh Kumar; Putative Respondent: Torture Claims Appeal Board / Non-Refoulement Claims Petition Office; Putative Interested Party: Director of Immigration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 May 2018
Case Number
HCAL434/2017
Procedural Posture
Application for Leave to Apply for Judicial Review / Leave Application Refused (notification of Decision)
Outcome
Leave to apply for judicial review refused on 24 May 2018
Legal Topics
Non Refoulement, Torture and CIDTP, Right to Life (bor 2/iccpr Art 6), Prohibition of Torture (bor 3/iccpr Art 7), Refugee Convention Protection, Judicial Review Leave, Wednesbury/anxious Scrutiny
Source Language
EN
Constitutional Law Administrative Law Immigration Law Human Rights Law Refugee Law Non Refoulement Torture and CIDTP Right to Life (bor 2/iccpr Art 6) +4 more

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Parties

Shrestha Santosh Kumar

Applicant

Torture Claims Appeal Board / Non-Refoulement Claims Petition Office

Putative Respondent

Director of Immigration

Putative Interested Party

Procedural Posture

Application for Leave to Apply for Judicial Review / Leave Application Refused (notification of Decision)

Legal Issues

  1. 1 Whether the applicant faces a real and substantial risk of torture if returned to Nepal
  2. 2 Whether the applicant faces a real risk of cruel, inhuman or degrading treatment or punishment (CIDTP) or persecution on Convention grounds
  3. 3 Whether the adjudicator/TCAB made an error of law or breached procedural fairness

Ratio Decidendi

Leave was refused because the adjudicator properly evaluated the evidence, found the incidents did not meet the legal threshold for torture, CIDTP or persecution, concluded state protection was available, and the application was not reasonably arguable under the enhanced Wednesbury/Chan test.

Court Disposition

Leave to apply for judicial review refused on 24 May 2018

Orders

  • Leave to apply for judicial review refused.
  • Notification sent to parties on 24/5/2018