NAMBUKARA TANTRILAGE DON ASIRI CHARIT JAYASURIYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 563/2017

[2019] HKCFI 1500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 563 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of Sri Lanka who arrived in Hong Kong on 24 September 2005 with permission to remain as a visitor until 26 September 2005 when he did not depart and instead overstayed until his arrest by the police on 18 March 2009.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Sri Lanka he would be arrested by police for failing to attend a court hearing and that he would harmed or killed by them for having made complaints against the government, which claim was subsequently withdrawn after he obtained legal representation to lodge a non-refoulement claim on the same basis.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born to a wealthy family in Sri Lanka and lived in Mahakalugolia, Monragala District where his father was a successful businessman and a member of the political party Janatha Vimukthi Peramuna (“JVP”) in opposition to the ruling government with armed uprising and insurgency in the late 1980s resulting in many JVP members and supporters being arrested or killed during which his father disappeared in 1988 without a trace.

3.  After the disappearance of his father and when the local police refused to carry out any investigation, his mother in January 1989 moved the family to her father’s house in Mangalagama where the applicant and his sisters were looked after by the grandparents whilst his mother went to work in Singapore to support the family until 1993 when she returned to Sri Lanka.

4.  In 1997 his mother again reported his father’s disappearance to the police.  About a week later some men armed with pistols and knives came to their home to threaten his mother during which the applicant was pushed and hit his head against a door when he lost consciousness and was subsequently taken to a clinic for treatment.

5.  After the incident he was told by his mother that those men were sent by the government to threaten her for reporting his father’s disappearance to the police, and as a result his mother again moved the family to a friend’s place in Bibile.  However, on the following day his mother also disappeared without a trace.

6.  In 2005 the applicant went to the police station in Bibile to report about the disappearance of his father.  About a week later some plainclothes policemen came to the applicant’s home and brought the applicant and his sister to the police station where the applicant was threatened over his report of his father’s disappearance.  They were then denied any food and were detained overnight.  On the following morning they were charged with the offence of acting against the government and were brought to court when they were eventually able to make bail after their mother’s friend had hired a lawyer to represent them.  

7.  On the following day his mother’s friend sent the applicant to stay at a friend’s place in Kandy where he remained for three months, and was then advised by his mother’s friend to leave Sri Lanka for his own safety, which he did in September 2005 when he departed for Hong Kong where he overstayed until his arrest in March 2009 and subsequently raised his torture claim, and when it was later withdrawn, and with legal representation form the Duty Lawyer Service he completed a Supplementary Claim Form (“SCF”) for his non-refoulement claim on 21 May 2015 and attended screening interview before the Immigration Department.

8.  By a Notice of Decision dated 29 January 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including 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 to believe that his perceived fear of harm from the Sri Lankan authorities or police is real and foreseeable upon his return to his country, as there is no reliable evidence that he had indeed been charged for any offence or attended any court hearing, or of him being pursued by the police with any intention to harm or kill him over the disappearance of his father which occurred so many years ago and when he was able to leave Sri Lanka without any difficulty, that reliable and objective Country of Origin Information (“COI”) show that the Sri Lankan government has since the 1980s taken remedial measures to deal with the disappearances of its citizens during the insurgency including paying compensations to their families, that JVP has since 1990s participated in democratic elections as one of Sri Lanka’s legitimate political parties, and that there is now a fair and proper judicial system and process available in Sri Lanka that if the applicant is indeed wanted by the police for failing to attend court hearing that there is no suggestion that he will be denied of a fair trial or justice or his right to their legal aid services, and concluded that it is not accepted that the applicant faces a real and substantial risk of being harmed or subject to ill-treatment by the police or authorities under any applicable grounds upon his return to Sri Lanka.

10.  By a Notice of Further Decision dated 7 June 2017 the Director again rejected the applicant’s claim after receiving and considering a further document from him to an earlier invitation to submit additional facts which may be 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”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 11 February 2016, and for which he attended an oral hearing on 12 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board upon hearing the applicant accepted that his father had been politically active and involved in JVP and that he had disappeared in 1988 when the applicant was only an infant, but doubted his account of his mother’s subsequent disappearance or his report to the police of his father’s disappearance when he was merely 16 or his subsequent arrest by the police or his court appearance, that based on reliable and objective COI that it was not accepted that the Sri Lankan authorities would have systematically taken steps to force or coerce the families of those disappeared victims into silence or inaction, that in any event given the disappearance of his father had occurred some 30 years ago that any attempts by the applicant to pursue the truth behind his father’s disappearance during the insurgency against the government of that period would not and should not pose any threats to the present government in Sri Lanka of today to warrant any action against the applicant, and concluded that his non-refoulement claim has failed on all applicable grounds.

13.  On 29 August 2017 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 when he deposed that:

“ I like to tell you my problem to you that I have life threaten problem in my country, and I don’t have any relative to help me, my father was kidnap by unknown person and still nobody know that what happened to him, and I was unable to submit my supporting document in time, but I will try my best to obtain from my country, petition team (security bureau) never gave enough time to me to explain properly I need to remain in Hong Kong until my problem solved properly. I submit Exhibit (1) one (1) page.”

14.  The exhibit referred to in his affirmation is in fact a copy of the Notice of the Board’s decision to him, and as he did not request for an oral hearing for his application, accordingly no hearing was held, and up to now no ground has been put forward by him for his intended challenge, nor any supporting documents which he claimed in his affirmation that he had wanted to obtain from his country but was not given sufficient time to do so despite more than one year has since lapsed.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 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 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 Re Litoun Mounsy [2018] HKCA 537

16.  In the present case the applicant’s claim was rejected by the adjudicator based on the facts and evidence available and for the detailed analysis and reasoning set out in paragraphs 73 – 109 of the Board’s decision, including the fact that the applicant failed to make his claim after having been in Hong Kong for almost four year before being arrested of which the adjudicator was entitled to take into account as damaging his credibility under section 37ZD of Part VIIC of the Immigration Ordinance, as well as those objective COI referred to and considered by the adjudicator in paragraphs 62 – 72 as to the current situations in Sri Lanka, in which as already noted the applicant did not identify any legal error or procedural unfairness either in his Form or his affirmation.

17.  In the premises and having proceeded to consider the Board’s decision as well as the decisions of the Director 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.

18.  In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse 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