THUMPANE GEDARA YASANTHA KALUM SURANGA WIJERATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1420/2019

[2024] HKCFI 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1420 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date of 9 August 2023 was fixed for him to appear before the Court. However, he was absent without prior notice to the Court, I shall deal with his application on paper.

The applicant

3.  The applicant is a national of Sir Lanka.  He entered Hong Kong on 3 July 2005 as a visitor and was allowed to remain until 9 July 2005.  He did not depart and was arrested years later on 10 February 2009 for overstaying. He raised a torture claim on 12 February 2009 which was rejected by the Director on 15 November 2012.  His appeal was dismissed by the Board on 25 April 2013.  He subsequently raised a non-refoulement claim on 21 October 2013 on the basis that he will be harmed or killed by former members of the People’s Alliance (“PA”) and/or members of the United People’s Freedom Alliance (“UPFA”), and their supporters, as he was a leader of the United National Party (“UNP”).  In light of his previous torture claim, the applicant’s non-refoulement claim was assessed on all applicable grounds except Torture risk^[1].    

4.  According to the applicant, he had been involved with UNP since the end of 2003/beginner of 2004.  His duties included organizing public meetings and promoting the party.  The main contender for the elections against the UNP was the PA.  Despite receiving verbal threats from the PA, the applicant continued to engage in political activities as he believed his home village was peaceful.  Subsequently, the PA won the election and was able to establish a foothold in the Sri Lankan parliament.  After the election, the applicant was attacked on three occasion by members of the PA.  In the evening on about 9 April 2004, he was assaulted by supporters of the PA while he was returning home from playing cricket.  The assailants beat him and warned him not to participate in further UNP activities.  Upon relocating to another region in Sri Lanka (Marawila), he was located by members of the PA on 13 February 2005 and they made verbal threats whilst the applicant was at work.  The third incident occurred the following night when he was back at home.  Members of the PA shouted at the front entrance of his home and there were gunshots heard. However, they did not attempt to enter and left. There was no injury to the applicant during this incident.  Two days later on 16 February 2005, he and his father reported this matter to the police but no significant action was taken by them.  In light of the situation, his father made arrangements for him to flee Sri Lanka and go to Hong Kong.  Details of his claim are set out at paragraph 11 of the Notice of Decision dated 10 February 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) his conduct was inconsistent with someone seeking asylum as he had been aware of the torture claim mechanism but waited for over a year before making his non-refoulement claim [26]; (ii) the past experience of ill-treatment from the PA/UPFA did not prove an existence of injuries attaining a minimum level of severity [27]; (iii) even assuming members of the PA/UPFA planned to cause ill-treatment against him, their intention was likely to suppress his participation in UNP activities, and not to harm him seriously, let alone kill him [28]; (iv) state protection is available from the Sri Lankan government [33] – [37]; and (v) internal relocation was a viable option [38] – [44].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board on 23 February 2017.  The Board conducted an oral hearing on 11 December 2018 and 9 January 2019 for his appeal, during which he elected to give evidence and was represented by a duty lawyer, Mr Mark Daly.

8.  Having considered the totality of evidence, the Board did not find the applicant’s account of events to be credible and held there was no factual basis to support his claim under any of the applicable grounds [37] – [93].  In particular, he was unable to recall basic information regarding his own party (the UNP) or the political landscape of his own province [38] – [46].  Nor was he able to substantiate his involvement in the UNP was groomed by his family [47] – [50].  He further gave extremely vague descriptions regarding the altercations with the PA and his failure to report one of the incidents to the police was contrary to common sense [53] – [58].  As to the supporting documents produced by the applicant, the Board was willing to accept their authenticity but held they were mostly self-serving, which ultimately no weight was placed upon them [69] – [82].

9.  Despite the above findings, the Board was willing to go further to consider the applicant’s claim under the applicable grounds of non-refoulement protection [94].  It found the UPFA did not have the intention or effective means to seriously harm him [98].  Moreover, the applicant being a grass-root member and the passage of time of some 13 years since the incidents, the Board found there was no real risk of serious harm [99] – [107].   Based on credible and objective country of origin information (“COI”), the Board also held there was adequate state protection available to him [112] – [125].  As for BOR 2 and BOR 3 Risk, the Board found the applicant’s claim under these grounds to be unsubstantiated [126] – [137].  Similarly, his evidence did not support a genuine and well-founded fear or serious harm that could substantiate Prosecution risk and again based on COI, state protection was available [138] – [146].  Lastly, COI also indicated internal relocation was a viable option [147] – [154].

10.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision. 

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 on 24 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised the grounds below in support of his application.

(1)  The Board applied the wrong legal test.

(2)  The Board failed to properly assess Persecution risk in relation to his membership of political parties and their activities,

(3)  The Board failed to accord weight to the relevant COI.

(4)  The Board failed to evaluate internal relocation.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  The applicant was legally represented before the Board. The Board, having considered the evidence and legal submissions, and for the reasons given in paragraphs 8 & 9, supra, found that the applicant was not a credible witness.  It can be seen that the applicant was well-protected by his lawyer before the Board. The Board had considered all the evidence adduced. It finally came to its conclusion that the applicant failed to show that he had real and genuine fear of being harmed or killed if he returns to Sri Lanka.

17.  As the Board had considered the relevant issues, the grounds in paragraph 12 are not sustainable. To say that it had applied the wrong legal test is only the applicant’s general comment on the Board without any evidence in support. They are not valid grounds to challenge the Board’s Decision.[2] All of the grounds fail.

18.  The applicant fails to raise any valid reason to challenge the Board’s Decision. There is simply no valid reason that this Court should interfere with the Board’s Decision.

19.  Therefore, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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