THENAHANDIGE AJITH ASHOKA SILVA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2506/2019

[2022] HKCFI 1145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2506 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Sri Lanka who arrived in Hong Kong on 12 June 2005 as a visitor with permission to remain up to 12 July 2005 when he did not depart and instead overstayed, and was arrested by police on 8 April 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by a local gang of criminals for having information on their illegal activities and/or by the police for failing to be a prosecution witness against the gang, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Negombo, Sri Lanka. After leaving school he worked as a driver in his home district, and in 2003 he started working in a motor spare parts shop in Colombo.

3.  During his work in the shop he learnt that the shop owner had connections to the local gangsters involved in drugs trafficking, gambling and prostitutions, while some of the motor spare parts were supplied by those gangsters from stolen vehicles.

4.  One day in March 2005 the Applicant and a fellow worker were arrested by police for interrogations about the shop’s connections with the local gangsters, during which the Applicant was beaten and tortured by the police but he refused to disclose anything.

5.  Two weeks later he and his fellow worker were released by the police without charge, but shortly thereafter he heard that the worker had been shot and killed by unknown men, and when the police later asked him to be a prosecution witness against the gangsters, he refused as he was afraid of being killed by them for doing so.

6.  About one week later a group of gangsters came to the Applicant’s home and beat him with wooden poles and iron bars that he suffered cuts and bruises all over his body, and before they left, they warned him not to cooperate with the police in their investigation or else they would kill him like what they did to his fellow worker.       

7.  As a result, the Applicant became fearful for his life due to threats or pressure from both the gangsters and the police, and so on 11 June 2005 he departed Sri Lanka for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.  By a Notice of Decision dated 31 January 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by the gangsters or prosecuted by the police upon his return to Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the gangsters to kill him when they had had ample opportunities to do so before he left the country or that he was required by the police to be a prosecution witness and for which he would be accorded with proper police protection, that in any event after all these years that it is not accepted that there would still be any adverse interest in him either by the gangsters or the police, that in the absence of any official involvement that state or police protection against those gangsters would be available to the Applicant upon his return to Sri Lanka if needed, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from his home district in large cities such as Central Province where it would be difficult if not impossible for those local gangsters to locate him.

10.  On 13 February 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicant’s claim as stated notwithstanding some inconsistencies and discrepancies in his evidence, but found on the basis of his account of events occurred in Sri Lanka prior to his departure being true that after more than 14 years that the prosecution case against those local gangsters would have been dealt with or dismissed, that it is not accepted that the case would still be active or ongoing or that the gangsters or the police would still have any interest in the Applicant who has left the country for so many years, that against such background that his circumstances were relatively insignificant based on the relevant COI that any breaches of the law in his departure of the country without being a prosecution witness was relatively minor and would have been treated at worse with a fine or a penalty with no serious consequences, and that in the unlikely event of those gangsters still having any adverse interest in him after all these years that state/police protection would be available to the Applicant upon his return to Sri Lanka as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.   

12.  On 29 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim as before that his life is in danger in his home country but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding of any basis that his claimed risks of harm still exist for the thorough and detailed analysis and reasoning set out in paragraphs 48 – 93 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim from those gangsters is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  Furthermore, the Applicant recently on 2 March 2022 wrote to the Court requesting to withdraw his application as he wants to return to his home country.

18.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the Applicant’s latest confirmation of his intention to leave Hong Kong to return to Sri Lanka, I accordingly dismiss his leave 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