SUDUHAKURALAGE CHAMINDA SRIYAKANTHA SENARATH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 764/2017

[2020] HKCFI 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 764 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 be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong illegally on 8 August 2013 and surrendered to the Immigration Department (“the ID”) on 19 August 2013.  This was not the applicant’s first dealings with the ID.  He had been arrested by the police on 21 October 2007, for illegal remaining as he had entered Hong Kong illegally on 21 November 2006.  On 31 October 2007, he had raised a torture claim but had withdrawn it on 12 April 2012 and had been repatriated to Sri Lanka on 31 May 2012.  He re‑entered Hong Kong illegally once more just 15 months later.  On 4 September 2013, the applicant submitted a non-refoulement claim by way of written representation. His non-refoulement claim form was submitted on 27 August 2015.  The applicant attended a screening interview on 13 November 2015.  He did not wish to rely upon previous screening interviews or questionnaires.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 14 January 2016 and by Notice of Further Decision (re BOR 2) on 1 December 2016.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), heard his appeal on 20 December 2016.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 26 September 2017.

2.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

3.  The applicant is a Sri Lankan national and now 48 years of age.  He was born on 10 September 1971, in Karawanella, Kegalle District and initially lived with his family in Garadoda Village, Yatiyanthota City, which is 50 km east of Colombo.  For the relevant period, he says he lived with his uncle in Kadawatha some 54 km from his village.  He has been married twice.  He has two daughters from his first marriage.  They, and his current wife now live in Sri Lanka although at some stage his second wife worked in Hong Kong until she developed cancer in 2014.  The applicant says he is not politically affiliated to any party.

4.  In 1990, the applicant joined the Sri Lankan Army as a soldier.  After basic training, the applicant was attached as a bodyguard to General Waidyaratne.  In that capacity he fought against the Liberation Tigers of Tamil Eelam (“LTTE”).  In 1994, the applicant was promoted to the rank of corporal and was attached the Army HQ at Galle Face in Colombo.  In 1995, there was a new government and the applicant was posted to Palali as one of only two guard commanders.  His hours of duty were long and when he was eventually allowed leave, he deserted.  He maintains that he did not return because soldiers were being targeted and killed by LTTE and also because, if caught, he would face punishment as a deserter.  In order to avoid arrest, the applicant obtained a forged passport and with the help of an agent, he bribed an immigration officer to be allowed to leave the country.  Initially he went to Qatar to work as a driver and remained there for three years during which time he ran away from his employment and was arrested and sentenced to three months’ imprisonment.  Upon release, he returned to Sri Lanka.  The applicant’s evidence as to when that was, varies between November 1996 and July 1998. His daughter was born on 11 May 1998 and therefore it is unlikely that he was still in Qatar in 1998.

5.  The applicant states that he went to stay with his uncle on his return from Qatar and remained with him until 2002, although at some stage he must have got married as he was not married prior to leaving for Qatar.  In these intervening years, he appears to have worked at a clothing factory and as a driver.  He also visited his home village occasionally even though he says he was at risk of arrest and/or attack from LTTE.  Nothing in fact occurred.  In 1999, he was able to obtain a valid passport without difficulty.  In 2002, he went to Saudi Arabia along with his mother and younger brother as all of them had secured contracts of employment but he stayed for only seven months as he did not like the climate.  On his return later in 2002, he stayed once more with his uncle but operated a driving business and visited his home village to see his father and sister.  He appears to have been able to do so without incident until 2006 when he came to Hong Kong.  He did so at that time because he believes two unknown men had located him at his uncle’s address and he had no choice, as a deserter, but to leave the country.  Before he could do so, his family home was damaged by a bomb although no one was injured and there was no solid evidence of who was responsible.

6.  By 2006, the applicant had re-married and his second wife was working as a foreign domestic helper in Hong Kong.  He arranged to fly to China and then entered Hong Kong illegally by boat.  He says he made a UNHCR application in the same year but did not make a torture claim until October 2007, because he had not known about it.  In any event he returned to Sri Lanka in 2012 because he thought his problems were over.  That was because the war had finished in 2009 and that there had been no reports of people looking for him for over a year.  He had intended to return to his village, sell his parent’s home and live elsewhere in Sri Lanka.  When he returned to Sri Lanka, he went to stay with his uncle once again and both his first and second wife supported him financially.  During this stay, he was detained at the airport on arrival but was released after a few hours and then later he was detained by the members of the Army who were looking for deserters but he was once more released after only a few hours.  On neither occasion was he harmed or charged with any offence.  He now says that is because his registered name with the Army is different from his name on his passport and birth certificate.  In 2013, as the applicant still feared reprisal from LTTE members for his membership of the Army, he decided to come back to Hong Kong, where his wife was still working.  He was able to leave Sri Lanka without difficulty.

The non-refoulement claim

7.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

8.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

9.  The applicant seeks to review the decision of the Adjudicator.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator was assisted by the meticulous analysis of the interviewing officer from the ID. The Adjudicator was equally meticulous.  Her analysis of the inconsistency of the applicant’s evidence is apparent from para 3 of her decision onwards.  She noted that despite the fact that the applicant relied upon the same background facts, he did not wish the ID or TCAB to have reference to his original claim dating from 2006 and that his grounds of appeal were equally inconsistent with his case before the ID.  For the first time, in his interview with the Adjudicator it appeared that the applicant had not been living with his uncle during the relevant period but rather he was living with his father-in-law i.e. the father of his first wife.  This was not the only discrepancy and the Adjudicator alluded to those which she was able to discover.  This included the fact that the applicant was not a deserter from the Sri Lankan Army but had completed a contractual term of service of five years.  In fact, there was a probability that the applicant had never served in the Army because the underlying documentation was wrought with difficulty not least the inability of an army secretary to know how to spell the word “corporal”.  The Adjudicator took the view that some of the documents presented by the applicant were forged.  Having come to the view which she did, the Adjudicator did not find the applicant’s claim to be made out.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location.  The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the decision of the Adjudicator alone.  It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review the TCAB.

Grounds of review

11.  There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. The applicant has been woefully untruthful throughout and yet both the Director and the Adjudicator gave him every opportunity to explain the overwhelming inconsistencies in his claim.  He did so by heaping further lies upon the ones already before them.  Despite that, they went about their functions in a wholly proper manner. I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a more than reasonable opportunity to state his case and enquired into that case appropriately and extensively. There can be  no criticism of her determination, which was open to her on the facts and eminently reasonable[1].

13.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore 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