ALAGAR VELAUTHAM v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1811/2018

[2020] HKCFI 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1811 of 2018

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 13 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  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, 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 15 January 2020.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as proposed respondent and by adding the Director as interested party.

The applicant

4.  The applicant is a Sri Lankan national. He came to Hong Kong illegally to seek asylum and was arrested by police on 26 November 2007. He lodged his non-refoulement claim on 19 January 2008.

5.  He claimed that if refouled, he would be harmed or killed by the army of police because of his suspected involvement with the LTTE and that he was suspected to be involved in the rape and murder of a policeman’s daughter.

6.  He claimed that because of the above suspicions, he was detained on three occasions and was tortured on each of the occasions.

7.  On the first occasion, he was taken to an empty army camp where he was strip naked and his arms were tied around a pillar. He was beaten with wooden sticks and guns’ butts.

8.  On the second occasion, he was taken to an empty room where he was beaten with wooden sticks and his forearms were cut by a blade. The police officers also put turmeric powder on his cut wounds. He was tied to pillars in a playground and the people used hooks to pierce the skin of his back and neck and they tied the hooks to a pillar so that whenever he moved, his skin would be torn. He was kept in that position for a whole night. They then sprayed a chemical on his wounds, causing intense pain.

9.  On the third occasion, he was taken to an old empty house by police officers where he was questioned on the LTTE and the rape and murder case. He denied to have any information. At night, he was taken to a police vehicle, which was punctured on its way. Whilst other police officers went away to get assistance, an old police officer released him and allowed him to leave. He left and decided to leave his country. He came to Hong Kong.

The Director’s Decision

10.  The Director considered his application in relation to the following risks:

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

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     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

d.     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”).

11.  By Notice of Decision dated 20 January 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be harmed or killed upon his return to Sri Lanka [18]; that state protection was available to him [29] and internal relocation was an option open to him [30]. His claim under BOR2 risk was not established.

The Board’s Decision

12.  The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 21 December, 2017.

13.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

14.  The Board considered the applicant’s evidence and found:

“25. …the Appellant gave different versions of fact in the TCF, the ROI and his evidence at the Hearing. …

78. …the inconsistencies and deficiencies in the Appellant’s evidence are simply too numerous and too important to be explained merely by a muddled head or lapse of memory. …Looking at all the evidence as a whole, I find that the Appellant is not a credible witness. I do not accept his account.

91. …The Appellant have failed to prove the primary facts even on the lower standard approved in Karanakaran. I do not believe his account. I do not accept that he came to Hong Kong due to a fear for his life and safety. There is no factual basis to support any of the applicable grounds.

92. Moreover, even if I adopt his original account, I find that there is no real risk that the Appellant would be subjected to any of the proscribed ill-treatment on his return to Sri Lanka. His alleged fear is not real.”

Application for leave to apply for judicial review

15.  The applicant filed Form 86 on 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, he said that what he told the Board was the truth.

DISCUSSION

17.  The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. He said that he was not clear about the Board’s Decision. I explained it to him. He said that he understood it. He had no comments on the Board’s Decision.

18.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

19.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

20.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

21.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

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