MEEGODAGE DON VIYANI HYJINUS CALISTUS alias MEEGODAGE DON VIYANI HY JINIUS CALISTUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1588/2019

[2024] HKCFI 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1588 of 2019

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 31 May 2019 (the “Second Decision” or “Second Appeal” as the context requires) affirming the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 3 August 2017 (the “Second Notice”).  The Applicant had not requested an oral hearing.   Having considered the nature of the application and issues raised, the Decisions, the Notices and all the circumstances, the Court considered his leave application may be justly determined on paper without an oral hearing. 

2.  In the grounds of application (Exhibit A) annexed to his supporting affirmation, the Applicant set out grounds of review relating to the Second Decision as well as grounds relating to an earlier decision dated 22 February 2017 (the “First Decision” or “First Appeal” as the context requires) in which  the Board dismissed his appeal against the earlier decision of the Director in his notice of decision dated 27 August 2015 (the “First Notice”) refusing his application for non-refoulement protection.  A copy of the First Decision is also annexed.  Thus, it appears to be his intention to seek a review of both the First Decision and the Second Decision.  Having regard to the nature of non-refoulement proceedings and the fact that the Applicant was unrepresented, the Court considered that the high standard of fairness would require it to consider whether to amend the leave application to include the First Decision.  

3.  Even treating the First Decision as if it had been included in the leave application, this application was filed more than two years and four months after the date of the First Decision. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than two years out of time.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, it was held by the Court of Final Appeal that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton NPJ.  The delay in relation to the First Decision is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.

4.  The reason for the delay as may be gleamed from the last paragraph of page 2 of Exhibit A is lack of means to seek legal representation to prosecute the review.  The Applicant said he did apply for legal aid but his application was rejected twice.  That is not a reasonable explanation.  Statutory time limits are meant to be observed.  The courts are very accessible to litigants acting in person.  The Court noted that he promptly made this leave application in person within eleven days of the date of the Second Decision.  Obviously, he was aware of the need to make prompt application, though not the precise time limit.  He could have done the same in relation to the First Decision.  Even assuming his ignorance about time limit, a delay of two years is a more than any indulgence which the Court could grant.  Leave to amend the leave application to include a judicial review of the First Decision will not be granted. 

The background

5.  The Applicant is a Sri Lankan national.  He had previously entered Hong Kong and was convicted in 1997 for overstaying.  He was was arrested on 20 April 2009 as an illegal immigrant.  He claimed he had entered Hong Kong illegally on the previous day. On 25 June 2009, he raised a torture claim (the “Torture Claim”).  In due course, his Torture Claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; and Persecution Risk[5] grounds.  His Torture Claim was dismissed by the Director’s First Notice.  His appeal against the First Notice was dismissed by the Board’s First Decision.  He did not pursue that Decision further which therefore became final and binding on him.

6.  On 14 March 2017, about three weeks after the date of the First Decision, the Director on his own initiative decided to canvass his risk under BOR2 Risk[6] ground and invited him to submit further material for the Director’s consideration.  Accordingly, the Duty Lawyer Service, then representing him, made a submission on 10 April 2017 repeating essentially the facts in support of his Torture Claim and asserted that he was at risk of harm from his enemies who were still looking for him.  The Applicant also alleged that a fresh warrant had been issued against him and asked for time to produce the warrant which would show that he would be arrested, if returned to Sri Lanka.  But, about five weeks later, the Duty Lawyer Service confirmed that the Applicant had no warrant to produce.  Subsequently, the Director issued the Second Notice refusing his claim for protection under BOR 2 Risk ground.  His appeal against the Second Notice was dismissed by the Board’s Second Decision.  He now applies for leave to apply for judicial review of that Second Decision only. 

The Applicant’s case for non-refoulement protection

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that he will be ill-treated or even killed by (1) the Sri Lankan army for desertion; (2) his neighbour and the neighbour’s associates for refusing to allow the Sri Lanka Freedom Party (“SLFP”) use the front of his house for SLFP’s political purposes; (3) a loan shark for being unable to repay his loan; and (4) prison officers and inmates if imprisoned for his inability to pay maintenance to his ex-wife.

8.  The Applicant was born in Sri Lanka.  He received education up to O-levels.  He is a supporter of United National Party (“UNP”).  He joined the Sri Lankan Army in March 1990. Following a suicide bombing in Colombo on 7 June 1991, he deserted the Army because he was tired of the sight of people dying.  About a week later, he was arrested by the police and handed over to the army.  He was subjected to ill-treatment in the form of rigorous physical exercise for 28 days, which caused him to vomit and faint.  He was also beaten by his senior officers.  Thereafter, he continued to serve in the army until the end of 1995 when he absconded.  To avoid arrest, he moved his family to his in-law’s place in the Gampaha District.

9.  In around 2002, he divorced his wife and moved back to his home in Uswetakeiyaawa.  He borrowed a loan of 500,000 rupees from a moneylender for the purpose of paying maintenance for his ex-wife.  However, the loan was used during his escapes from his enemies as outlined below.  As a result, his ex-wife filed a claim for maintenance and arrest warrants were issued against him.

10.  Following the government’s announcement of amnesty to army deserters in January 2003, the Applicant was able to formally resign from the Army and lived a normal life working as a casual labourer.  

11.  In July 2003, his neighbour (“MD”), who was a prominent UPFA supporter, demanded the Applicant to make available the front of his house for UPFA activities.  He believed MD’s motive was to signal to the neighbourhood that he could convert a UNP supporter to switch to support UPFA.  The Applicant refused.  That led to multiple threats by MD.  Between July and September he reported four incidents of threats to the police, but the police took no action.

12.  Then, the first attack occurred on the evening of 19 August 2005 two years later.  MD and his associates, including Perera, broke into the Applicant’s home.  Perera attacked the Applicant with a club.  The Applicant suffered a severe injury to his left wrist, which took him months to recover.  He made a police report.  The police told him his complaint was being investigated but did nothing.

13.  The second attack took place in January 2009.  In self-defence, the Applicant swiped a knife at Perera and injured his shoulder.  He escaped and fled to various locations within Sri Lanka to avoid detection by Perera’s associates and the police.

14.  At some stage, the warrants issued in 2002 was/were executed and the Applicant was brought before the Wattala Court.  He was remanded in Mahara Prison.  He was released on surety bail after three days.  While in the prison, he had to stand one whole day for registration and was beaten by prison officers who passed by.  He was also beaten by senior inmates of his ward.  He suffered wounds and contusions.

15.  Fearing for his safety, the Applicant left Sri Lanka after his release from prison.  He left via Colombo Airport on 23 March 2009 for Thailand and then onto Macau.  From there, he sneaked into Mainland China and then into Hong Kong by boat on 19 April 2009.

16.  After he came to Hong Kong, he learned that his mother had been paying maintenance to his ex-wife; that the person who had provided surety for him was imprisoned because he failed to appear in court; and that the moneylender who had never assaulted or threatened him was chasing him for repayment.  He also learned that a number of warrants had been issued against him because he did not appear in court in breach of bail condition. 

17.  He does not believe the Sri Lankan government would protect him because the government would arrest him and execute him for having released secrets about the Army or the government.  He does not believe internal relocation feasible because the Sri Lankan government and MD had been harassing his brother for his whereabouts.

The finding of the Board in the First Decision

18.  The Applicant did not promptly seek protection in Thailand or Mainland China after leaving Sri Lanka. It was until two months after his arrival and arrest in Hong Kong that he lodged the Torture Claim.  Relying on Section 37ZD of the Immigration Ordinance and taking these matters into account, the Board did not accept that the Applicant came to Hong Kong to seek protection, as he alleged.  It found his evidence unreliable and could not support his claim.  Nevertheless, the Board assessed his Torture Claim on the basis of the case as he asserted.

19.  The Board noted that the Applicant was able to leave Sri Lanka through normal immigration channel, indicating that he was not a target of the government.  It found his claim that the government would arrest him and execute him for having released secrets about the Army or the government is inherently improbable.  This fact also suggests that his enemies wanting to persecute him were not state agents or people acting on behalf of the Sri Lankan government, with its consent or acquiescence.  The Board also considered the injuries he suffered did not attain the minimum level of severity.  Hence, it found the Applicant had no substantial risk or substantial basis of fear.  It also found he could avoid the risk, if any, by internal relocation and it would not be unduly harsh for him, being an able-bodied man in his forties, to do so.  For all these reasons, his claim based on Torture Risk ground failed.

20.  As the injuries he suffered in the past were not serious and there was nothing to suggest that he would face substantial risk of serious harm in the future, the Board found he was not entitled to protection under BOR 3 Risk and Persecution Risk grounds.

The finding of the Board in the Second Decision

21.  The Applicant’s appeal against the Second Notice was decided by the Board constituted of the same Deputy Chairperson.  At the oral hearing of the First Appeal, the Applicant who was then legal represented chose not to answer the Board’s question.  Before the Second Decision was made, the Applicant had been invited by the Director to furnish additional information in relation to a claim under BOR 2 Risk ground. In response, the Applicant essentially repeated his case and asked for time to produce a warrant or warrants of arrest to support his fear of risk of harm, but eventually confirmed that he had no warrant to produce.  The issue relating to the warrant had been brought up and considered in the First Appeal.  Thus, basically, the Applicant had adduced no additional evidence, raised no new issues and made no new submissions which had not been considered in the First Appeal.  Hence, the Board decided to determine the present appeal without an oral hearing pursuant to Paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme which mirrored Section 12 of Schedule 1A to the Immigration Ordinance.

22.  The Board issued a three-page decision dismissing the Applicant’s appeal.  Paragraph 4 of the Decision contains the Board’s treatment of what the Applicant now claims to be new evidence which has not been properly considered by the Board.  The reasons for the Board’s decision are succinctly stated in Paragraphs 8 and 9 of the Second Decision.  These paragraphs are quoted hereunder:

“4. On 10 April 2017 the [the Applicant] via his Duty Lawyer wrote to the Director and repeated the facts of the [the Applicant]’s [case], and claimed that there was a warrant to produce which would show that the [the Applicant] was under warrant to be arrested. It should be noted that the fact that he alleges to be under a warrant for his arrest was part of [his case for non-refoulement protection], although in the end his Duty Lawyer advised the Director, on 15 May 2017, that there was actually no warrant to be produced. I note that in the file are what appeared to be ‘court proceedings’, not in the form which one would expect to see in ‘official formats’, stating that the [the Applicant] was overseas (see translation). However it should be noted that even if the material was true, it only shows that [the Applicant] was, as he now is, a fugitive from the law hence not entitled to refoulement (sic) under the principles of refugee law, but still less is there any basis for a claim under BOR 2 Risk as there is no evidence of risk of loss of life as a result of the court proceedings.

…

8. The [Applicant] has stated what he wishes to say, I have nothing to ask him, all the issues under BOR 2 Risk are abundantly clear. I cannot see the need or the justification to organise yet another oral hearing merely to re-canvass the same case which has already been ventilated and dealt with before. As the Court of Appeal has said, ‘The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently’: AW v Director of Immigration CACV 63/2015.

9. Having studied the whole case, including what the [Applicant] has written since the Director’s invitation to him for the reasons in this Decision and for all the reasons stated in the [First] Decision, all of which are applicable in a decision on BOR2 Risk, I do not find the applicant to have succeeded in establishing a case under BOR 2 Risk.”

23.  In summary, the Board found there was nothing new in the submissions in relation to the BOR 2 Risk ground which had not been considered in the First Appeal.  The Board had nothing to ask of the Applicant for clarification.  Hence, it was expedient to determine the appeal without an oral hearing.  For the same reasons as given in the First Decision, the Applicant is not entitled to protection under BOR 2 Risk ground.

The legal principles applicable to judicial review

24.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

25.  The Applicant’s grounds of judicial review as set out in pages 1 and 2 of his Exhibit A are:

(1)   the Second Decision was made without an oral hearing;

(2)   his lawyer’s mistake in misrepresenting record of court proceedings as warrant;

(3)   procedural unfairness in failing to clarify what the “warrant” is; and

(4)   lack of legal assistance.

Ground (2) – mistake in describing the record of proceedings as “warrant”

26.  Having regard to the grounds, this Court found it more expedient to consider Grounds (2) and (3) first as they set the basis of Ground (1). 

27.  The Applicant submits that when the Duty Lawyer Service informed the Board that he had a warrant to submit, it used the wrong choice of word.  What he meant was he had an extract of the record of court proceedings stating that he was overseas and showing that there was a warrant issued for his arrest for not attending the court in Sri Lanka.  He submits that the mistake may have caused doubts in the Board’s mind that he had no evidence to produce.

28.  As shown in Paragraph 4 of the Second Decision, the Board noted in the file or hearing bundle a document which appeared to be the extract of the court proceedings referred to by the Applicant.  The translation of that document indicates that the Applicant was overseas.  The Board did not take the Duty Lawyer Service’s letter at its face value.  It examined the annexures, examined the document produced by the Applicant and read its translation.  The translation must have shown that a warrant had been issued against the Applicant for his arrest.  That was why the Board went on to say if the material was true, it only shows that the Applicant was/is a fugitive from the law.  Seeing the document and reading its translation, the Board would have no mistake that the word “warrant” used in the letter referred to the record of proceedings.  Despite the mistake in the choice of word used by the Applicant or his legal representative, for which the Board was not responsible, what he wanted to convey to the Board in that letter had been fully and precisely conveyed to and accepted by the Board.  Thus, the fact that the record of proceedings which the Applicant had in mind to produce was mistakenly described as a “warrant” and that he was unable to produce a warrant had no impact on the Board’s Second Decision.

Ground (3) - procedural unfairness in failing to clarify what the ‘warrant’ is

29.  The Applicant submitted that it was procedurally unfair for the Board not to clarify what the “warrant” referred to by the Duty Lawyer Service is.  In view of the above analysis, it is obvious that the Board knew what the Applicant had produced is a record of proceedings or extract showing that he was overseas and that he wanted to impress the Board that a warrant for his arrest had been issued.  That was what the Applicant wanted to convey to the Board and that was the message the Board received.  That fully answered his complaint.

30.  It might have been the Applicant’s happy assumption that with the warrant and his evidence about his three-day experience in Mahara Prison, he has proved his entitlement to protection.  Unfortunately for him, that is not true.  As the Board held, the warrant only shows he is a fugitive from the law.  It is well-settled legal principle that non-refoulement protection is to protect people at risk of persecution arising from injustice and not fugitive from justice.  The warrant, according to the Applicant was issued for his failure to appear in Court in breach of bail condition or his lawful obligation to pay maintenance to his ex-wife.  Hence, the warrant proved nothing in the context of non-refoulement protection.  The warrant is a non-issue.

31.  Furthermore, non-refoulement protection is not available to anyone at risk of any form or degree of harm for any cause.  It is only available to those who meet the criteria under one or more of the four grounds available under the USM.  The most basic criteria are that the claimant must be at risk of ill-treatment or harm of a minimum level of severity; that protection by his own state is not available or accessible; and that relocation within his own state is not feasible to avoid the risk.  The Board recalled in its First Decision it had found on the basis of the Applicant’s own evidence that the ill-treatment in Mahara Prison did not attain the minimum level of severity and that internal relocation is feasible and hence the Applicant’s life will not be at risk returning to Sri Lanka.  Proceeding on the basis of his evidence about the warrant and the above finding under the First Decision, the Board found the Applicant would not be at BOR 2 Risk, if refouled to Sri Lanka, not to mention that there is no evidence that BOR 2 Risk is engaged, ie that a death sentence had been passed on the Applicant or that his non-derogable right to life is at risk of being violated by the state of Sri Lanka.  The Second Decision is well justified.  If the Applicant could not even overcome the hurdle of proving his risk of ill-treatment attaining a minimum level of severity under BOR 3 ground, how could he overcome the higher hurdle of proving the risk of his non-derogable right to life under BOR 2 being violated?

No oral hearing

32.  The Applicant submits it is unlawful and unreasonable that the Second Decision was made without an oral hearing.  He disagrees with the Board’s opinion that there was no need to organise another hearing to re-canvas the same case which has already been ventilated and dealt with before due to change in circumstances which have increased his risk returning to Sri Lanka.

33.  Section 12 of Schedule 1A to the Immigration Ordinance permits the Board to determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, it is satisfied that the appeal can be justly determined without a hearing.  The Board’s reasons for not holding an oral hearing has been stated in Paragraph 8 of its Second Decision.  These are: (1) the Applicant has stated what he wishes to say and the Board has nothing to ask him; and (2) that all the issues under BOR 2 Risk are abundantly clear.

34.  The Director had invited submission on BOR 2 Risk ground.  The Applicant made his submission which was accepted and considered by the Board.  The Applicant’s sole complaint is about the “warrant”.  It is true that he had said all he wished to say.  The Applicant argues that he should have been given an oral hearing to enable him to clarify to the Board what the word “warrant” stands for.  As analysed above, the Board understood all that he wanted to say and had all the information necessary for it to make a determination.  And as analysed above, the warrant is a non-issue.  It would not improve his case at all. Hence, the Board had nothing to ask him, obviously that was because there was no need for clarification.  Having made the First Decision, against which there was no further proceedings, the findings therein are final.  As the Board said, “all the issues under BOR 2 Risk are abundantly clear”.  The Applicant had submitted no other evidence or facts.  His claim under BOR 2 Risk ground was founded on the same facts which had been fully canvassed in the First Decision.  The Board’s Second Decision is also based on the same facts plus the “warrant”, ie the record of proceedings submitted specifically in support of the BOR 2 Risk ground, and nothing else.  Actually, the issue of the warrant had been considered in the First Decision.  The Board was perfectly entitled to invoke Section 12 of Schedule 1A to the Immigration Ordinance to make a determination without an oral hearing.  The course taken by the Board is lawful, expedient and reasonable.

35.  The Applicant takes great exception to the Board’s remark in the concluding sentence in Paragraph 8 of the Second Decision that the time and resources spent on these cases is immense and hence they should be disposed of promptly and efficiently, ie without an oral hearing if possible.  I respect his sentiment.  But the approach taken by the Board accords with the principle laid down by the Court of Appeal in AW v Director of Immigration.

Lack of legal assistance

36.  The Applicant also mentioned about lack of legal assistance as a prelude to his grounds of application in respect of the First Decision.  He did not specifically make this complaint as a ground of application.  Just in case he had any misgiving about the validity of such a ground, he is advised that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[8] nor the judgment of FB v. Director of Immigration[9] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.  He had the benefit of legal representation in presenting his case to the Director in respect of all four applicable grounds, including BOR 2 and BOR 3 grounds.  All the benefits that legal representation could have afforded him were contained in the written submissions, the NCF and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented in the leave application, all the benefits which legal representation could have afforded him are before this Court.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in this leave application. 

Conclusion

37.  Having rigorously examined the Second Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim entirely on the basis of the case as he asserted.  It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under BOR 2 Risk ground. These are finding of facts and of law.  Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the Applicant’s application for leave to apply for judicial review is refused.

38.  As for his intention to seek leave to apply for judicial review of the First Decision, the Applicant has not formally made such an application.  Even if he had, it would have been made badly out of time and would have been refused because of the substantial delay and for want of an explanation for the delay in accordance with the Court of Final Appeal decision in Po Fun Chan v Winnie Cheung.  Hence, no amendment is made to include a review of the First Decision in this leave application and the grounds advanced in relation to the review of the First Decision are not dealt with in this Form CALL-1.

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