NUPE ARACHCHIGE NIROSHANA DAMIND v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL360/2017

[2018] HKCFI 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 360 of 2017

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Sri Lanka national who first came to Hong Kong on 16 March 2003 and travelled to and from Mainland China before returning to Sri Lanka on 25 June 2003.  He came back to Hong Kong on 15 April 2006.  He was permitted to remain until 13 May 2006 but did not leave.  He was arrested by the police in September 2006.  The applicant’s non‑refoulement protection claim process was laborious and set out in detail in the Director of Immigration’s decision (“the Director”) dated 26 June 2015 which rejected his claim.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 29 March 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 5 July 2017.  This application was six days late and he requested an extension of time to make this application; he explained the reason for the delay was that he had no legal representation nor legal advice and because of his ignorance of the law, he did not know of the time limit of three months to file the application.  The applicant also requested an oral hearing which was set down on 24 November 2017.  The applicant appeared in person having had his application for legal aid refused.

3.  The applicant applied to adjourn the hearing because he had applied to appeal the Director of Legal Aid’s refusal to grant him legal aid and wished to adjourn the hearing pending the result of that appeal.  I refused to adjourn the oral hearing because his application for legal aid had been refused for lack of merit which meant his chances of success on appeal were very weak and I was not prepared to wait.

Extension of time refused

4.  The applicant has failed to file this application on time, that is within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  He is six days late.  The only reason he gives is ignorance of the law.

5.  I have considered the legal principles for granting an extension of time for judicial review; the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

6.  Here, the delay is not significant but the explanation is not a good reason for extending time, the merits of the substantive application after perusal of the papers are weak and there are no questions of general public importance.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Background

7.  The basis of the applicant’s claim is that if he returned to Sri Lanka he would be harmed or killed by people from an opposing political party called Sri Lanka Freedom Party (“SLFP”) later known as People’s Alliance (“PA”) as well as his girlfriend’s brother and her family.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only intend to summarise it here.

8.  The claimant said he joined his political party in 1999 and a general election was held in 2001 when he helped his party canvas votes and arrange political meetings.  On the day of the election, he reported one of his neighbours who supported SLFP to a police officer for voting twice.  Later that neighbour with a group of others beat up the applicant when he was on his way home.  A few days later, that neighbour and group of men went to his house again but he was not home and they told his mother that they would kill him if they found him.

9.  To avoid his neighbour, the applicant left that same day to live with his uncle some 20 km away; he remained there for over two years.  He lived between there and another aunt’s house and lived peacefully, without harassment from that neighbour or any SLFP people.  One day in 2003 when his mother told him that his neighbour and SLFP people had been again looking for him and threatened to kill him if they found him, he decided to fly to Hong Kong in March.  He returned in June 2003 when he ran out of money.  He stayed with his uncle and aunt as he did before until he finally left again in April 2006.  During this three-year period, he did not encounter any SLFP people but his mother told him they would still come looking for him at his parent’s home.

10.  Whilst he was living with his uncle between 2003 and 2006, he met a girl from a Muslim family whilst the applicant was a Buddhist and began a relationship with her.  Her father was a businessman whilst her brother was jobless but associated with a ruthless criminal gangster according to his sister.  In 2005 the applicant asked her parents for her hand in marriage but her parents refused, became angry and slapped her in front of the applicant.  They refused because of their different religious backgrounds.

11.  At the beginning of 2006, the applicant was attacked by her brother and some men and warned to stop seeing his sister or he would be killed.  The applicant did make a report to the police about the assault.  Her parents found out that they had had sexual intercourse in a guesthouse and his girlfriend warned him to move away from his uncle’s home especially as her brother knew where he lived.  On the following day, the applicant moved to stay with his aunt and found out that his girlfriend’s brother had indeed visited his uncle’s house that same day.  The applicant only remained with his aunt for two months before he left Sri Lanka again.  He decided to leave because his girlfriend’s brother had connections with gangsters and could track him down.  The SLFP had merged with other parties and could track him down anywhere in Sri Lanka.

12.  The adjudicator, as did the Director, analysed the applicant’s claim under the following applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”); and

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”).

13.  The adjudicator treated his appeal as a rehearing and conducted an oral hearing.  The applicant elected to give evidence and answer questions.  The adjudicator correctly set out the law and key legal principles applicable to the three grounds.  He set out the applicant’s evidence and claim.  He analysed the credibility of the applicant.

14.  The adjudicator did not believe the applicant did not know he could claim for protection before he did in 2009; he did not accept that explanation.  The fact is that he had been arrested on several occasions prior to 2009 and had produced a Form 8 issued by the Immigration Department in the name of another person to deliberately conceal his true identity.  His explanation that he was afraid to seek assistance from the Hong Kong authorities was implausible.  The fact he did not make a non-refoulement protection claim earlier affects his credibility.

15.  So much of his evidence was based on hearsay as well as bare assertions.  And although hearsay evidence is not in itself inadmissible, the adjudicator considered the weight which could be attached to such evidence was, by its nature, greatly reduced.  His evidence cannot prove the truth of fact asserted by way of such evidence.  In addition, speculation can never support any element of the applicant’s claim.

16.  On top of that, when the adjudicator tried to elicit more detail from the applicant, his answers were very vague.  He was unable to remember details such as what year he met his girlfriend and what month he went to the guesthouse with his girlfriend to have sexual intercourse and what month he asked for her hand in marriage.  They were highly significant events that were material and yet he was unable to recall the details.  The applicant was unable to persuade the adjudicator he had had a relationship of the nature he described with this woman.  Nor did he believe that he was attacked by the brother.  Anything he was told about the brother was hearsay.

17.  The adjudicator did not believe the applicant was a member of the United National Party.  He told the adjudicator he was given a membership card when he joined in 1998 or 1999 and renewed it once in 2004. Yet, he said he was not involved in any politics after the 2001 elections, the date of which he could not recall.  The adjudicator placed no weight on an alleged member contribution certificate in his name dated 2014 together with other documents that were obtained by his cousin.  The adjudicator gave full reasons in his decision why he attached no weight to the documents and found the authenticity of those documents questionable.

18.  Having rejected the applicant is a genuine claimant and taking into account that on his own evidence the applicant had not been involved in any politics since 2001, the adjudicator found he had suffered no ill-treatment in the past and was at no risk of ill-treatment or torture in the future if refouled.

19.  When the adjudicator applied the law and key legal principles, he found that the applicant had failed to establish a claim under any ground.  There was no real risk the applicant would face torture as defined and set out in section 37U of the Immigration Ordinance; the torture risk claim failed.  There was no evidence of any real risk he would face the prospect of torture or CIDTP if refouled; the BOR 3 risk claim failed.  Lastly, he could not establish he had a well-founded fear of being persecuted for reasons set out in the Refugee Convention if he was refouled to Sri Lanka; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

20.  The applicant filed no grounds in his affirmation, it is only clear he wishes to apply for leave to judicial review the decision made on 29 March 2017.  That is the decision of the TCAB.  He only reiterated his claim and problems.  He exhibited supporting documents to allegedly support his case and confirm that the present political situation in the country has not improved.  None of the documents are relevant for consideration in a leave application when they were not placed for consideration before the TCAB.

21.  An oral hearing was arranged because the applicant had not stated any grounds so that he could be given an opportunity to make oral submissions.  In open court, his only submissions related to a repetition that his life was still in danger in Sri Lanka and that he still needed more time to obtain documents.  He had no grounds to put forward to support this application.

22.  I considered the adjudicator’s decision to be without fault.  I do not find any error of law; I see no evidence of procedural unfairness nor do I see a failure to adhere to a high standard of fairness by the adjudicator.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

23.  In my judgement, even if I was wrong to refuse an extension of time, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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