ABEYSINGHE ARACHCHIGE MANJLA CHANDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1338/2019

[2024] HKCFI 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1338 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Sri Lanka.  He arrived in Hong Kong as a visitor on 9 July 2002 but did not depart within the limit of stay imposed.  He was therefore an overstayer since 10 August 2002 and was subsequently arrested by the police on 23 May 2011.  He previously lodged a torture claim on 25 May 2011, which was rejected by the Director on 17 October 2012.  He appealed to the Board on 21 November 2012.  Upon implementation of the Unified Screening Mechanism (“USM”), he lodged a non-refoulement claim on 1 March 2014 on the basis that he would be harmed or killed by members of the People’s Alliance (“PA”) as he was a member of an opposition party, the “Janatha Vimukthi Peramuna” (“JVP”).

5.  In summary, the applicant claimed he was a member of the JVP since 2000 but he did not hold any office or rank, and remained only a mere supporter. According to his interview record with the Director, he was attacked by members of the “Eksath Janatha Nidahas Sandhanaya” (“UPFA” – predecessor of the PA) in mid-2001.  He was further verbally threatened by the PA one week after the above incident.  Despite a police report was filed, the police did not take any further action and refused to accept his complainant of the incident. Fearing for his safety, he relocated to Ambalangoda.  However, he continued to receive death threats via phone calls (conveyed to him from his parents) until his departure from Sri Lanka.  Details of his claim are set out at paragraph [18] of the Notice of Decision dated 16 June 2017 by the Director (the “Director’s Decision”).  In light of his previous torture claim, the Director assessed his non-refoulement claim on all applicable grounds other than Torture risk^[1].

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  &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

c.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the past experience indicated that the risk of harm upon his refoulement was low, as there was only one physical assault and the subsequent threatening phone calls were made to his parents and not directly against him; and in any event, the ill-treatments inflicted upon him did not attain a minimum level of severity [26] – [28]; (ii) there was no indication that the PA truly intended to cause him harm, let alone kill him [29] – [30]; (iii) state protection was available which further lowered or negated the level of risk [33] – [37]; and (iv) internal relocation was a viable option, including populated cities such as Colombo [38] – [48].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board, which included his appeal against the Director’s decision on 17 October 2012 in respect of his torture claim.  On 12 February 2019, the Board conducted an oral hearing for his appeal, during which he was legally represented via the Duty Lawyer Service and gave evidence before the Board [4].

9.  In essence, the Board rejected the applicant’s claim due to his vague and unreliable evidence, and further held there was no substantial fear under any of the available grounds of non-refoulement protection [5.1].  His evidence depicting the police offering no assistance was viewed as mere assertion as he was unable to recall any details of the police during the material time [5.2]. Moreover, his claim of mental torture was dubious as it was some 8.5 years due to his fear of the PA [5.3], and the assault (the only physically one) was some 17 years ago [5.5].  Lastly, the applicant’s claim that it was initially six to seven members of the PA seeking to harm him, was changed to “astronomical proportions” as he deposed at the oral hearing that the police and gangsters would also kill him [5.17].  In light of these findings, the Board held there was nothing reliable in support of the applicant’s claim and dismissed his appeal accordingly.

10.  In an addendum, the Board further considered the applicant’s claim under each of the applicable grounds of non-refoulement protection [8] – [18].

Application for leave to apply for judicial review of the Board’s Decision

11.  On 20 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has filed an affirmation, in which he said he is not satisfied with the Board’s Decision. His enemies are the ruling party and they will do harm to his life if he returns to his home country.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The Board had, for the reasons given in paragraph 9, rejected the applicant’s evidence in support of her claim.  

17.  The ground raised by the applicant are not valid to challenge the Board’s Decision.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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