KANDANA ARACHCHIGE DAYAL DILRUK KUMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1119/2019

[2022] HKCFI 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1119 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 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Sri Lanka. He entered Hong Kong as a visitor on 19 August 2005 and was permitted to stay until 18 September 2005. However, he did not depart and had overstayed since 19 September 2005. On 26 July 2008, he was arrested by the police and was referred to the Immigration Department. On 31 July 2008, he lodged a torture claim. Upon the commencement of the unified screening mechanism, his torture claim was taken as a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of United National Party (“UNP”).

5.  According to the applicant, he had been a member of People’s Alliance (“PA”) since 2002. He assisted one Mr. Katagoda in promoting the PA during the election. In January 2004, while he was putting up posters for the PA, he had to tear down the posts for UNP. Because of this action, he was threatened and attacked by the UNP members. Thereafter, from 2004 to February 2005, the applicant relocated to other districts. His sister further informed him that the UNP members were still looking for him. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 14 July 2017 by the Director (the “Director’s Decision”) and paragraphs 26 to 41 of the Board’s Decision described below.

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

7.  The Director had arranged several screening interviews for the applicant to clarify his claim and confirm the contents in the interview notes. Ample opportunities were provided to the applicant to submit facts and evidence [3]-[6]. After assessing all the evidence, by way of the Director’s Decision, the Director dismissed his claim for the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [24]; (ii) the dispute was private in nature without state involvement [25]; (iii) state protection would be available to him [26]-[30] and (iv) internal relocation was a viable alternative [31].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 21 November 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented and assisted by an interpreter [14].

9.  The Board considered the submissions filed by the parties for and after the oral hearing. It also considered the applicant’s oral evidence at the hearing [16]. The Board examined the country of origin information on the elections and Sri Lanka’s treatments of returnees [53]-[58].

10.  The Board observed that the applicant’s claim primarily relied on a single incident happened during 2004 election [59]. It accepted the applicant’s version about the incident. Nevertheless, the Board found that the UNP members did not target the applicant specifically as the alleged incident occurred during a dispute over the posters [63]-[66]. It also found that the UNP members had no real intention to cause serious harm or even kill him [67]-[68]. Further, the applicant’s inconsistencies in the details about the move to other district undermined his credibility [71]-[75]. Insofar as the claim under BOR 5 risk, viz. risk that asylum seemers deported back to Sri Lanka are detained and persecuted on arrival, was concerned, the Board found that there was no evidence in support of such claim [77]-[80]. Meanwhile, the letter from a Justice of Peace in Sri Lanka, stating that the applicant would be in danger if refouled, was found to be self-serving and added nothing to the applicant’s claim [81]-[85].

11.  Based on the aforesaid findings, the Board found that the applicant’s non-refoulement claim was unsubstantiated and rejected his claim. The applicant’s appeal was therefore dismissed.  

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

12.  The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said he has life risk in his country. His enemy will kill him if he is found. He would obtain further evidence for his case.

DISCUSSION

14.  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).

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

16.  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.”

17.  There is no valid ground from the applicant to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  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