GALLOLU KANKANAMALAGE NIMAL PERERA v. DIRECTOR OF IMMIGRATION PETITION TEAM

CACV 215/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 215 OF 2012

(ON APPEAL FROM HCAL NO. 116 OF 2012)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  In this appeal, the Applicant appeals against the refusal of Fung J [“the Judge”] to grant him leave to apply for judicial review to challenge the decision of the Torture Claims Appeal Board. The Judge gave his decision on 18 September 2012. Reasons for such refusal were set out in Form CALL-1 of the same date.

2.  The Notice of Appeal was lodged by the Applicant on 25 September 2012.

3.  On 3 September 2012, the Torture Claims Appeal Board refused to extend time for the Applicant to petition against the decision of the Immigration Officer because she saw no merit in the Applicant’s torture claim.  Even accepting the Applicant’s version of event, the Adjudicator found that the Applicant had failed to establish any state involvement or acquiescence.

4.  This is apparent from the decision of the Adjudicator, see in particular paras 30 to 42.  At para 30, she said:

“30. For the purpose of evaluating the merits of Petitioner’s case I assume what the Petitioner has said was truthful, honest and complete about his loans and the threats he and his wife have received. I assume all documents produced by the Petitioner were genuine and authentic.”

5.  And after setting out her analysis of the facts, she said at paras 40 – 42:

“40. From the account of events provided by the Petitioner, Ariyaratne was all along the only villain who administered force or threat on the Petitioner and his family for the purpose of seeking repayment from the Petitioner.

41. The whole scenario was a private debt recovery situation. The initiation of a legal suit for the purpose of recovering an enforceable debt is the lawful enforcement of person’s civil rights. There is nothing unlawful for Ariyaratne to bring a civil law suit to enforce his legal rights.

42. Should Ariyaratne resort to the use of force, threat or unlawful means to enjoin payment from the Petitioner, Ariyaratne’s acts would be criminal in nature and Ariyaratne should be subjected to the sanction of the law.  From the chain of events there was not a shred of evidence to indicate the involvement of any public official or person acting at the instigation, with the consent or acquiescence of a public official acting in an official capacity in respect of Ariyaratne’s unlawful acts.  Ariyaratne’s unlawful acts on the Petitioner, being private in nature, would not have constituted torture in the context of the Convention.”

6.  In refusing leave, Fung J held that the Applicant had not disclosed any grounds to suggest that the Adjudicator was wrong in that respect.

7.  In the Form 86 and the supporting affirmation, the Applicant did not disclose anything to show how he alleged that the threats and acts of violence committed against him had been done with state involvement or acquiescence.

8.  In the Appeal Bundle, the Applicant included some documents which apparently had not been placed before the judge.  In any event, apart from some demands for repayment of loans alluded to by the Adjudicator and a letter written by his relative telling him that his creditor was still pursuing against him and warning him not to go back to Sri Lanka, the other documents dealt with the general condition of Sri Lanka.

9.  None of the new documents shows any state involvement or acquiescence in respect of the difficulties the Applicant faced.

10.  On 31 July 2013, the court informed the Applicant that the matter will be listed for hearing and asked the Applicant to attend the office of the Deputy Clerk of Court on 7 August for fixing a hearing date.  

11.  The Applicant did not attend the office of the clerk on 7 August.  A hearing date of 17 September 2013 was fixed.  The Applicant was informed of the hearing date by a Notice of Hearing on 13 August 2013.

12.  On 17 September 2013, the Applicant did not appear at the hearing at the appointed time. After this court had dismissed his appeal in his absence, he turned up and he explained that he had been on the wrong floor of the court building. Since the order for dismissing his appeal had not been perfected, and in view of his explanation, we decided to re-open the matter to hear him on his appeal.

13.  He informed the court that he had lost his documents and a report was made to the police on 3 February 2013. All along he waited for the police to recover his documents. He did not take other steps in that regard and he said he has no contact in Sri Lanka to help him.

14.  In the course of hearing, it transpired that the documents he wanted to refer were those in the Appeal Bundle. They are the demands for repayment of loans. We have read those documents.

15.  The Applicant also said he would be killed if he were to go back to Sri Lanka.   

16.  In our judgment, there is no merit in the appeal. The general condition of Sri Lanka cannot assist the Applicant. In the recent case of Re RS CACV 206 of 2012, 20 August 2013, this court held at para 59,

“… We are of the view that the same applies in respect of material facts supporting a claimant’s belief that there was state involvement or acquiescence in the risk or threat of torture posed by non-state agent. The burden being on a claimant to prove a case of torture within the meaning of CAT, he or she must put forward some factual basis to support such belief before the Director can be expected to investigate on it. Such factual basis must be personal to him or her either in terms of knowledge or experience because, as it has been said repeatedly in CAT jurisprudence, the mere existence of a consistent pattern of gross, flagrant or mass violations of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return. It has to be shown that he will be personally at risk, see for example TK supra, at para 29.”

17.  The Applicant had been given ample opportunity to put forward material and information to support his case in this respect and up to now he has not done so.  We do not under-estimate the practical difficulties faced by the Applicant in producing concrete documentary evidence to support his case on state involvement or acquiescence.  However, he should be able to give some specific and personal particulars in that regard.

18.  Since the decision of the Adjudicator was not hinged on any issue of credibility and there was simply no evidence for suggesting that the Applicant might have an arguable basis for establishing state involvement or acquiescence, the Applicant does not have any reasonably arguable basis to complain about the lack of oral hearing before the Board, see Re RS CACV 206 of 2012, 20 August 2013.

19.  In conclusion, we are of the view that the judge was correct in refusing leave.  The appeal by the Applicant is dismissed.