NUPE ARACHCHIGE NIROSHANA DAMINDA ALIAS MOHAMED NALEEM MOHAMED ALIYAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 441/2018

[2019] HKCFI 2418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 441 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Sri Lanka who last arrived in Hong Kong on 29 April 2006 with permission to remain as a visitor up to 13 May 2006 when he did not depart and instead overstayed, and was arrested by police in September 2006 for theft but later absconded from bail until his arrest again on 7 May 2009, for which he was later convicted and sentenced to prison for five months; and upon his discharge and pending deportation by the Immigration Department, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the supporters of rival political party Sri Lanka Freedom Party (“SLFP”) and/or by his girlfriend’s family which objected to their relationship.  He was subsequently released on recognizance pending the determination of his claim.

2.  By a Notice of Decision dated 26 June 2015 the Director of Immigration (‘the Director’) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

3.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those supporters of SLFP or his girlfriend’s family to the Applicant upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, 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 21 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 work experience to move to other part of Sri Lanka away from his home district in large cities such as Nawagamuwa where it would be difficult if not impossible for those SLFP supporters or his girlfriend’s family to locate him.

4.  On 6 July 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 10 May 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 29 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision. 

5.  By a Notice of Further Decision dated 13 June 2017 the Director again rejected the Applicant’s claim after receiving and considering additional facts submitted by him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

6.  On 5 July 2017 the Applicant filed his Form 86 under HCAL 360/2017 for leave to apply for judicial review of the Board’s decision, and on 9 March 2018 Deputy High Court Judge Woodcock upon hearing him appearing in person refused to grant leave after finding that there was no reasonably arguable ground for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application.

7.  The Applicant did not appeal against Judge Woodcock’s decision, but instead on 19 March 2018 he filed another Form 86 in these proceedings now before me for leave to apply again for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following new grounds for his intended challenge:

 (1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

 (2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

 (3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Sri Lanka;

 (4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Sri Lanka and misdirected himself as to the extended meaning of state protection;

 (5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

 (6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

 (7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

 (8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

8.  Even leaving aside the fact that these are all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations that in my view none of them is reasonably arguable for his intended challenge, there is simply no reason why the Applicant could not have put them forward for his earlier application before Deputy Judge Woodcock or that why he should now be allowed a second bite of the cherry more than one year later in these proceedings.

9.  In any event, given the fact that the Court had already in the previous proceedings found no error of law or procedural unfairness in the Board’s decision nor was there any prospect of success in the Applicant’s intended application, it is therefore plain to me that none of these vague and unelaborated grounds could in any way assist or advance the Applicant’s case any further than it was before Deputy Judge Woodcock, and as the principle of res judicata applies, it is an abuse of the process for the Applicant to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court under HCAL 360/2017 against which he has never appealed, and also for failing to inform the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

10.  For these reasons this second leave application for judicial review of the Board’s decision by the Applicant is hereby struck out and dismissed.

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