MAHAMALEGE SAMANTHA PRASAD PERERA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2430/2019

[2025] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2430 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notices of Decision dated 19 March 2013 (the “1^st Notice”) and 7 September 2018 (the “2^nd Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Sri Lankan national. He last entered Hong Kong on 31 May 2005 and overstayed since 1 July 2005. He was arrested for overstaying and was subsequently sentenced to six months’ imprisonment. Upon his discharged from prison on 22 December 2012, he was transferred to the Immigration Department pending his removal. He made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on the same day. His Torture Claim was rejected by the Director’s 1^st Notice. He appealed the 1^st Notice. He also made a non-refoulement claim on 17 June 2013. In due course, his non-refoulement claim was assessed on the three applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His application was rejected by the Director’s 2^nd Notice. He also appealed the 2^nd Notice. His two appeals were dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the torture claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant claims that if returned to Sri Lanka, he will be harmed or killed by his political opponents from the People’s Alliance (the “PA”), now known as the United People’s Freedom Alliance (the “UPFA”), because of his political affiliation with the United National Party (the “UNP”).

4.  The Applicant is single and aged 43. His parents and brother are deceased. His sister is living in Sri Lanka. He had received ten years of formal education and had two years’ experience working as a salesman in an insurance company.

5.  He claimed that he had joined the UNP as a member in 2002 and worked for the UNP under the supervision of Larine Perera, a UNP member and a member of parliament in Sri Lanka. One evening in 2004, as he was on his way to his sister’s home, he was approached by about 20 PA supporters. They told him to stop working for the UNP. He refused. They then kicked and hit him with wooden poles. He fell and they trampled on him. His cousin and friends soon arrived to join the fight, which lasted for an hour. The fighting stopped when more people arrived to intervene. The Applicant was sent to a nearby hospital and was hospitalised for three weeks. Upon his discharge from hospital, he reported the incident to the police, but was told that they would not intervene, as it was a political dispute. He then sought help from the UNP and Larine Perera, but they told him they could not help because the PA was in power.

6.  About six weeks later, he learnt from his mother that one day when he was out, some PA supporters went to his home and uttered a threat that they would kill him if he did not stop working for the UNP. He therefore relocated to his uncle’s home in Thabbowa. Whilst there, he learnt from his mother that about ten PA supporters had visited her and uttered the same threat. In December 2004, he resolved to go to Italy via Egypt where he was arrested and detained in a camp. He was eventually deported back to Sri Lanka in April 2005. Then, he came to Hong Kong on 31 May 2005.

7.  The Applicant claims that state protection is not available because the police in Sri Lanka is corrupt. He does not believe internal relocation viable, as he is required to register with the Grama Sevaka if he relocates to other areas in Sri Lanka and his whereabouts may be leaked to his opponents through the registration system.

The finding of the Board

8.  Having reviewed the papers, the Board considered an oral hearing necessary and scheduled a hearing on 29 April 2019. Notice of hearing was sent to the Applicant. On the hearing day, a telephone call was received by the secretariat of the Board asserting that the Applicant was in hospital. A letter was sent to the Applicant pursuant to section 15 of Schedule 1A of the Immigration Ordinance and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Procedural Guide”) informing him that his appeal would be decided in his absence unless he provided a written explanation with supporting documentary evidence within seven days. In response, the Applicant submitted a hospital discharge slip confirming that he had attended Tuen Mun Hospital on 24 April 2019 (five days before the hearing) where he was treated for a fractured left hand and discharged on the same day. The Board considered his statement and the discharge slip could not satisfactorily explain his absence from the hearing. By its letter dated 6 May 2019, the Board gave him a further seven days to explain his absence or else his appeal would be determined in his absence. The Applicant did not respond. The Board then made the determination and issued its Decision on 19 July 2019.

9.  Even taking his account at its highest, the Board had considerable reservations over the Applicant’s claims. Nobody had ever threatened the Applicant directly. He only learnt from his mother that some PA supporters had uttered the life-threatening messages on those two occasions, which is hearsay. It also found that throughout the assault incident, the PA supporters did not make any threat to him. Moreover, if those PA supporters had a genuine plan to kill or seriously harm him, they could have done so there and then. In passing, the Board found it strange that he was hospitalized for three weeks when the nature of injuries as described by him was comparatively minor.

10.  Though the Board acknowledged that political violence was not unknown in Sri Lanka, it nevertheless found that there was no concerted campaign of violence against UNP supporters, and in particular, there was nothing to indicate that the Applicant himself was at any particular risk. On the contrary, the Board found that it was quite unclear why he had been targeted in the way that he claimed, as his duties and work for the party were of a minor nature, despite being a loyal UNP supporter. Hence, the Board considered that it hardly likely that he would attract the PA’s enmity in the way that he suggested. In any event, the Board formed the view that as the incidents on which he relied happened 15 years ago in 2004, it was fanciful to suggest that he would continue to be of any interest to his political enemies, even if he resumed his support and work for the UNP on his return to Sri Lanka.

11.  On the basis of objective country of origin information (“COI”), the Board found that the UNP and their coalition partners had become the current ruling party in Sri Lanka. Under such circumstances, it was not satisfied that his fears about the UPFA were justified.

12.  The Board found his claim that his whereabouts would be leaked to UPFA supporters was merely an unsupported speculation, as it was illogical to suppose the registration authorities would reveal his location to the members of an opposition political party. It also found it far-fetched that UPFA members would attempt to trace him upon his return because of the political difference which occurred 15 years ago.

13.  Hence, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to Sri Lanka. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds being considered. It therefore dismissed his appeal against the decisions in the two Notices.

Legal principles applicable to judicial review

14.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

15.  In his supporting affirmation, the Applicant made the following complaints, which can be regarded as grounds of application on the basis of error of law or irrationality:

(1)  His appeal was rejected by the Board without an oral hearing; and

(2)  He was admitted to hospital on the hearing day, and his request for re‑scheduling the hearing was rejected.

If substantiated, these grounds would support an application for leave to apply for judicial review.

16.  On the fact, the Applicant absented himself at the hearing on 29 April 2019. Someone, presumably acting on his instruction, claimed he was in hospital on that day. In his supporting affirmation, he also claimed he was admitted to hospital on that day. But the discharge slip which he produced to support his assertion only certifies that he had an operation on his hand on that day and was discharged on that same day. And that was five days before the hearing. It does not support the Applicant’s claim that he was hospitalised on the hearing day. If indeed he was, the hospital would have issued him a sick leave certificate or another discharge slip showing a date of discharge after the date of hearing. No such documentary evidence which is reasonably expected was produced.

17.  Furthermore, there is nothing in the discharge slip to suggest that the Applicant was under such a condition that he would not be able to attend court five days later. He was not given sick leave. He was only prescribed paracetamol, an ordinary pain relief, and amoxicillin and augmentin which are common antibiotics to treat or prevent infection. Even if he was suffering some pain from the operation or the injury or some inconvenience, it would not have prevented him from attending the hearing and presenting his case. In any event, it is not his evidence that he was suffering from such condition. All the evidence points to a very simple fact, that is he had made a conscious decision not to attend and proffered a false explanation which shows he was lying.

18.  The Board had given him two chances to explain his absence. Even if he had made a mistake on the first occasion, he should have corrected himself on the second occasion. But he did not. He chose not to respond. He has no reasonable explanation for his absence. The Board was entitled as a matter of law to make the Decision in his absence.

19.  At the hearing, after the legal principles in the preceding section had been explained to him, the Applicant made four assertions to fortify his fear returning to Sri Lanka which he said show that the Decision was made as a result of error of law.

20.  First, he said he had documentary evidence to support his case that he worked for a political party but he needs time to produce such evidence later. He fled to Hong Kong in 2005 because of events which occurred in or before 2005. Twenty years later, he is still saying he needs more time to produce the documentary evidence. He appears to be dragging his feet to delay his refoulement process. His credibility aside, such evidence is unnecessary and could not improve his claim. It does not explain his absence at the hearing. Furthermore, when assessing his claim the Board assumed that he had worked for the UNP and played the role he said he had. The evidence which he said he would produce could not improve his non-refoulement claim.

21.  Second, he said his brother had died, presumably as a result of persecution by the PA supporters. This fact was never presented before the Board. Because of the difference in the role of the court in a judicial review and the role of the primary decision makers as explained in the preceding section, an applicant may not rely on materials which have not been produced before the Board or the Director to contend that they erred in not taking those into account, unless the decision makers have a positive duty to elicit such materials on their own volition. The Board was not under such a duty. The duty was on the Applicant to prove his claim, albeit on a low standard of proof.

22.  Third, he said his father had been killed by the PA. This issue had been considered by the Board. He told the Board that his father had been abducted by the PA goons, hung and assaulted and later succumbed due to the assault. That testimony is inconsistent with his earlier evidence during the screening interview that his father died of sclerosis in hospital on 5 October 1999. The Board had considered all his evidence about his father’s death against the surrounding factual matrix. Obviously, the Board rejected his later testimony and preferred his earlier evidence at the screening interview. Hence, the Board explained to him during the hearing that his father’s death is not directly relevant to his claim except that he had entered politics because of his father’s influence. The issue had been fully and properly canvassed by the Board.

23.  Fourth, he said last year his uncle’s son was taken into custody by the police and killed by hanging. For the same reason as explained in paragraph 21, he may not accused the Board of making an error of law by not considering the evidence which was never presented before the Board.

24.  All the grounds that he raised are not substantiated. What remains is whether this Court can find upon an anxious scrutiny of the Decision that it has been tainted by errors of law, procedural unfairness and irrationality.

Overall scrutiny

25.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

26.  The main complaint of the Applicant is that the Decision was made without an oral hearing. As a matter of law, a claimant has no absolute right to an oral hearing. The general principles pertaining to the holding of oral hearings as a question of procedural fairness and high standards of fairness are applicable. The Applicant was afforded the opportunity of an oral hearing. He forwent that opportunity by absenting himself without good reasons. He was then given two other opportunities to explain his absence. For reasons as explained in paragraph 8, he failed to explain by putting up a pack of lies which is contradicted by the very documentary evidence he produced. In proceeding to determine his claim in his absence, procedural fairness and the high standards of fairness have not been compromised by the Board.

27.  The Board then assessed the Applicant’s claim on the basis of the factual case as he asserted. It was on that basis that the Board found the Applicant’s feared ill‑treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province 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. The Court could detect no error of law 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.

Conclusion

28.  For the above reasons, the leave application is refused.

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

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