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HCAL 1300/2022
[2023] HKCFI 810
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1300 of 2022
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BETWEEN
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Naida Baduge Nishantha Pradeep De Silva alias Bovi |
Applicant |
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Thantrige Lasantha |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 21 November 2022 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (the “Board”) dated 3 November 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 April 2022 (the “Notice”).
2. The Applicant is a Sri Lankan national, now aged 51. He first entered Hong Kong on 27 February 2002 under the identity of “Bovi Thantrige Lasantha”. He was arrested on 6 March 2002 in relation to an offence under the Dutiable Commodities Ordinance and sentenced to 9 months’ imprisonment. He was deported on 5 September 2002 after serving his sentence.
3. In 2003, the Applicant came to Hong Kong to work as a foreign domestic helper under the identity of “Naida Baduge Nishantha Pradeep De Silva”. He last arrived in Hong Kong on 27 December 2019. On 21 April 2020, his employment contract was prematurely terminated. Six days later, he was arrested for the offence of breach of deportation order in relation to his deportation in 2002. He was sentenced to a total term of 26 months’ imprisonment. After his discharge from prison, he lodged his non-refoulement claim by way of written signification on 13 January 2022.
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now seeks leave to apply for judicial review of that Decision.
Lifting of the legal aid stay
5. The Applicant had made an application for legal aid on 31 January 2023. At the hearing, the issue of legal aid stay pursuant to section 15 and Regulation 7A of the Legal Aid Ordinance was discussed with the Applicant. He had lived in Hong Kong for twenty years. He should be familiar with the life in Hong Kong and the availability of legal aid. Yet he was unable to explain why he did not apply for legal aid when he made the leave application. Apart from the usual reasons of need for legal assistance, he had no other particular reasons for seeking a stay of the proceedings. Having regard to his right to apply for legal aid and in order not to de-rail the proceedings, notwithstanding section 15 of the Legal Aid Ordinance, this Court lifted the stay and proceeded with the hearing. In all fairness to the Applicant, this Court adjourned to 27 March 2023 for decision, by which time the usual 42 days’ period of stay would have expired. If his legal aid application would have been approved before that date or if at this hearing he could demonstrate an arguable ground for judicial review, which is a lower threshold than good prospect of success, this Court will adjourn the hearing for further argument to 27 March 2023. As at the date of this Form CALL-1, the Court has not received notification from the Department of Legal Aid about his legal aid application.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance from the Duty Lawyer Service and his record of screening interview in the presence of his lawyer. In gist, he claimed that, if returned to Sri Lanka, he will be harmed or killed by drug traffickers and the Minister of Rural Roads and Infrastructures, Nimal Lanza (the “Minister”) and his associates.
7. The Applicant was born in Badulla, Sri Lanka and is married. He has a wife and two daughters who are currently living or working in Hong Kong. He has 14 years of formal education and about 21 years of working experience. He first worked as a machines operator and later as a domestic helper in Hong Kong from around 2003 to around 2020.
8. The Applicant claimed that when he returned to his hometown in Sri Lanka for holiday in July 2019, he witnessed a group of drug traffickers selling illegal drugs. This caused him concerns about the safety of his family. Upon discussion with his neighbours, he and another neighbour reported the matter to the Negombo police station on 4 August 2019. The police indicated they would investigate. However, apparently there was no intervention by the police.
9. On 11 August 2019, the Applicant was informed by a friend that the drug traffickers were supporters of the Minister and advised him to refrain from making further complaints. His friend also cautioned him that the Minister and his associates might make threats against him. The Applicant alleged that the Minister had ties to the President of Sri Lanka ten years ago. His neighbours were scared and stopped taking further actions against the drug traffickers. Nonetheless, the Applicant filed a formal complaint with the Negombo police station on 21 August 2019. The officer in charge of the station said that a formal investigation would be conducted.
10. On the evening of 23 August 2019, about 15 people barged into his home bearing weapons, such as pistols, swords, iron and wooden sticks. They locked up his wife and children in one of the rooms and beat him up. One of the assailants pointed a pistol to his head and took out a copy of his written complaint filed with the Negombo police station. They further threatened him saying that they worked for the Minister and that the police were under their control. The Applicant suffered numerous injuries including bleeding from an open wound on his forehead. He was too scared to go the hospital or clinic for treatment and resorted to self-care instead. It took him about a month to fully recover.
11. The Applicant and his family were fearful for their life as they realised that the police would not be able to stop the Minister, his associates and the drug traffickers. On 31 August 2019, they secretly left home and board a direct flight to Hong Kong.
The finding of the Board
12. Despite some concerns about his delay in claiming non-refoulement protection and the veracity of his explanation that he was unaware of the protection available in Hong Kong, the Board accepted that the centrepiece of the Applicant’s case. It accepted that the Applicant had reported the drug trafficking activities to the local police, that his home was invaded and he was threatened and assaulted. The Board, however, considered the Applicant had embellished his claim that the local drug gangs had connection with the Minister. Though the Country of Origin Information (“COI”) indicated some generalised nexus between crime and politics in Sri Lanka, there was nothing suggesting connection between the Minister and criminal gangs involved in drug trafficking. The Board found it was unlikely that the Minister would be involved in gangs in the manner as suggested by the Applicant as it would cause legal and reputational damage to his political career. The Board further found that even if such connection existed, the Minister had resigned in March 2022 and his influence diminished.
13. Given his background and experience, the Board considered that the Applicant could relocate to different localities in Sri Lanka to avoid the risk and harm and it would not be unreasonable for him to do so. The Board also did not accept there is a consistent pattern of gross, flagrant or mass violation of human rights in Sri Lanka for the purposes of section 37ZI(5) of the Immigration Ordinance. It did not consider that the Applicant would face any real risk of suffering any of the proscribed harm should he return to Sri Lanka in the reasonably foreseeable future.
14. The Board was therefore not satisfied that the Applicant had established the factual basis in support of his claim for protection under any of the four applicable grounds under the USM. It was not satisfied that the Applicant had a well-founded fear of persecution for any reason protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion as to entitle him to protection under the Persecution Risk ground. On the same basis, the Board was also not satisfied that there was a substantial or real possibility that the Applicant would be subjected to a similar incident or other harm that would amount to torture, or cruel, inhuman, degrading treatment or punishment as to entitle him to protection under the BOR 3 Risk ground or BOR 2 Risk ground. Hence, it dismissed the Applicant’s appeal.
The legal principles applicable to judicial review
15. 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 protection 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[5].
Grounds of application
16. At the hearing, after explaining the above legal principles to him, the Applicant confirmed that he had no complaints about error of law and procedural unfairness. He complained that the Decision was irrational. He repeated his case and reiterated that it would be unsafe for him to return to Sri Lanka. He is in effect disputing the Board’s finding of fact which for reasons as explained above is not permissible.
17. The Applicant advanced five grounds of application in the Form 86. They all revolve around the Board’s finding of facts. These grounds are considered below.
(1) The Board erred in assuming that he was aware of the availability of protection in Hong Kong
18. Though the Board expressed its concern, it did not make any adverse finding against the Applicant. It accepted the centerpiece of his case, though not his speculation that the Minister was connected with the drug gang, which was not supported by any evidence. There is no substance in this complaint.
(2) The Board erred in drawing a general inference that it is inherently unlikely any politician would be involved in drug gangs
19. The Applicant claimed that the Minister was connected with the drug gang. That claim was based on what the assailants asserted. There was no direct evidence. The Board had carefully analysed all the evidence and the COI. It considered the possibility that the assailant’s claim was false and was made to boost their strength. It weighed the evidence, assessed the various possibilities and drew the inference on the basis of common sense and experience. It is a finding of fact which the Board was entitled to make.
(3) The Board erred in assuming the Minister’s influence diminished with his resignation but ignored the fact that he is still a member of the parliament since 20 August 2020
20. For the same reasons as explained above, this is a finding of fact which the Board was entitled to make.
(4) No evidence to support the finding that the threat will have dissipated with passage of time
21. This finding is the Board’s assessment based on inherent probability which the Board was also entitled to make as a finding of fact.
(5) The Board erred by not taking into account the relevant COI
22. The Applicant did not identify the relevant COI which he alleged the Board had failed to take into account. On the fact, the Board did consider some COI including those supporting the Applicant’s case, such as the existence of some generalised nexus between crime and politics.
23. There is no substance in any of the Applicants’ grounds of application. However, out of abundance of caution, the Court also rigorously examined the Decision for errors of law, procedural unfairness and irrationality in the Decision which are the usual grounds on which an administrative decision may be reviewed. Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the 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 and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claim. It had carefully weighed the evidence and assessed the Applicant’s credibility. It accepted the centerpiece of the Applicant’s case, though not his speculation about the Minister’s connection with the drug gang. Except for that, the Board assessed his claim on the basis of the case as he asserted. It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Board’s Decision is a finding of fact which is 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 such vitiating elements. There were no errors of law or procedural unfairness in its Decision. Its Decision did satisfy the enhanced Wednesbury test.
Conclusion
24. For all of the above reasons, the Court is satisfied that the Applicant’s intended judicial review based on these grounds have no prospect of success. His application is therefore refused.
Dated the 27th day of March 2023
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 27 March 2023
Naida Baduge Nishantha Pradeep De Silva alias Bovi Thantrige Lasantha
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors
on 27 March 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 20193
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 178/22 (Formerly RBCZ 5000057/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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