DE SILVA ANTHONY MENEKA KUMARASENA v. TORTURE CLAIMS APPEAL BOARD

HCAL 445/2018

[2020] HKCFI 2316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 445 of 2018

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 refused.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Sri Lanka who arrived in Hong Kong on 26 June 2005 with permission to remain as a visitor up to 26 July 2005 when he did not depart and instead overstayed, and after he was arrested by police on 14 February 2009 and was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the local supporters of rival political party United People’s Freedom Alliance (“UPFA”), which he subsequently withdrew upon the commencement of the Unified Screening Mechanism (“USM”) when he instead raised a non-refoulement claim on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Dehiwela, Sri Lanka.  After leaving school he worked as a machine operator, and followed his family’s tradition to support the political party United National Party (“UNP”).

3.  After marrying his wife and with a family of two children, he moved his family to Colombo in 2004, and became involved in UNP’s election campaign by putting up posters and delivering leaflet for the party as well as attending the party’s rallies.

4.  One day in late March 2004 while putting up the party’s posters in the streets, the Applicant and his fellow UNP supporters were attacked by a group of UPFA supporters during which the Applicant suffered numerous blows to his body, but one of the attackers also suffered serious injuries when some of the UNP supporters fought back against them.  After the incident the Applicant fled to take shelter in his relatives’ homes in various cities.

5.  In early 2005 the Applicant decided to return to his home in Dehiwela, but when threatening phone calls were made to his home, he left again to stay with various relatives in other cities, but as he still felt it was not safe to remain in Sri Lanka, he therefore departed for Hong Kong on 26 June 2005 where he overstayed, and upon his subsequent arrest by the police in February 2009 and was referred to the Immigration Department, he raised his torture claim on 16 February 2009, and was released on recognizance pending determination of his torture claim.

6.  On 13 and 20 March 2012 the Applicant wrote to the Immigration Department to withdraw his torture claim, and on 26 March 2012 the Director of Immigration (“the Director”) acceded to his request and confirmed that no further action would be taken of his torture claim.

7.  On 8 August 2012 the Applicant wrote to request to re-open his torture claim, but one month later by a letter dated 4 September 2012 via his lawyer from the Duty Lawyer Service (“DLS”), he again withdrew his torture claim, and on 5 September 2012 the Immigration Department informed the Applicant that his request to withdraw his torture claim had been accepted and that no further action would be taken of the claim.       

8.  Later upon the commencement of USM for enhanced screening of non-refoulement claimants on all applicable grounds, the Applicant raised his non-refoulement claim on 23 April 2016 including his previously withdrawn torture claim, for which he later completed a Supplementary Claim Form on 30 March 2017 and attended screening interview before the Immigration Department with legal representation from DLS except for his torture claim which the Director on 31 May 2016 refused to re-open.  

9.  On 13 June 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision for refusing to re-open his claim.      

10.  By a Notice of Decision dated 22 May 2017 the Director rejected the Applicant’s claim on all the remaining applicable grounds except his torture claim including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), 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”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local UPFA supporters upon his return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of those local UPFA to specifically target the Applicant for harm, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from his home district in large cities where it would be difficult if not impossible for those UPFA supporters to locate him.

12.  On 2 June 2017 the Applicant again lodged an appeal to the Board against this second decision of the Director, and for both of his appeals he attended two oral hearings on 25 October 2017 and 3 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 March 2018 both of his appeals were dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found no basis at all for the Applicant to challenge the Director’s decision refusing to re-open his repeatedly withdrawn torture claim upon his failure to establish any change of circumstances that could not reasonably have been foreseen by him when he gave his notice to withdraw his torture claim or that there were any special circumstances that it would be unjust not to re-open his torture claim, and as for his appeal against the Director’s second decision for rejecting his non-refoulement claim, it found inconsistencies and discrepancies in his evidence to cast doubt on the credibility of his claim, that in any event after all these years that there is no reason why those UPFA supporters would still have any adverse interest in him, and that in the absence of any official involvement that with state/police protection available to him upon his return to Sri Lanka as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by those UPFA supporters that his claim for non-refoulement protection failed on all applicable grounds.     

14.  On 19 March 2018 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 stated that he was not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the 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 in their decisions 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 Nupur Mst v Director of Immigration [2018] HKCA 524.    

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.  In the premises and having considered the decisions of both the Director and the Board 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.  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