MUDANNAYAKALAGE CHAMINDA PUSHPA KUMARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL417/2017

[2018] HKCFI 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 417 of 2017

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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Sri Lankan national who arrived in Hong Kong on 22 May 2004 and was permitted to remain as a visitor until 21 June 2004.  The applicant overstayed from 22 June 2004.  He was arrested on 20 December 2007 for a robbery offence and found in possession of a recognizance form in the identity of another person also arrested by the police for the same offence.  His true identity was discovered later.  He lodged a torture claim on 9 January 2008.

2.  His torture claim was taken to be a non-refoulement protection claim upon the commencement of the Unified Screening Mechanism which commenced on 3 March 2014 and it was dismissed by the Director of Immigration (“the Director”) on 30 November 2015 and 19 June 2017.  The applicant did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) after the Directors 1^st decision which dismissed his appeal on 27 April 2017 without conducting an oral hearing.

3.  The applicant filed a notice of application for leave to apply for judicial review on 17 July 2017; seeking leave against that last decision dated 27 April 2017.  He requested an oral hearing if leave was not granted on the papers and a date was set down for 8 December 2017; the applicant appeared in person.

4.  The basis of the applicant’s claim was that if he were refouled to Sri Lanka he would be harmed or killed by the Sri Lanka Navy because he deserted the Navy in around February 1999 and also Mr Duminda Silva and/or his people from the UNP party because they wanted to seek revenge against him personally for a shooting incident in 2004.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim in detail in their decisions therefore, there is no need to repeat it here.

5.  The applicant joined the Navy in about 1994 when the Sri Lanka government was at war with the Liberation Tigers Tamil Ealam (“LTTE”).  He was stationed at a camp and would often patrol in the nearby villages.  In 1996 he met a Tamil girl in a village and had to keep his relationship with her a secret.  The Navy found out and banned him from seeing her again but he persisted.  In February 1999 there was a sudden attack by the LTTE on their camp and the Navy arrested the applicant because they suspected him of leaking information to LTTE through that Tamil girl’s brother.  Her brother was a member of LTTE and known to the Navy.  The applicant was detained for 14 days in a camp cell but he denied any involvement with LTTE and denied giving his girlfriend any information about the Navy camp.  His punishment from the 13^th day in detention was to build bunkers around the camp.  The applicant knew the Navy would never trust him again so he escaped whilst building bunkers and caught a lorry to Colombo; he has had no contact with the Navy since. He admits deserting the Navy.

6.  From early 2000 the applicant joined the private security team of Bharatha who he said was a member of Parliament and represented the Sri Lanka Freedom Party.  His main political rival and opposition was Duminda Silva.  It would appear that the applicant’s job was not just to protect his boss but to do his dirty work which included illegal activities.  In October 2003 his security team’s van was shot at and one of his colleagues was killed; it was established that it was Duminda’s men who did this on his orders.  In January 2004, the applicant and his colleagues took revenge on the security team of Duminda and shot at their vehicle and killed one of them in; it was tit-for-tat.  After that, a China Visa was issued to the applicant on 10 March 2004 but before he left Sri Lanka there was an attempt on his life by two men when he was alone one evening but he managed to escape.  He assumed those two men were from Duminda’s security team seeking revenge.  After that he lay low for two weeks until he left Sri Lanka on 17 May 2004.

7.  As far as the applicant knows the Navy has never issued an arrest warrant for the applicant.  When he was in detention for those 14 days he was interrogated but never physically abused.  The applicant has never met Duminda but considers him his sworn enemy and believes that he is personally still a target of Duminda and his team.  Even now, if he were to return to Sri Lanka his team of people could locate him anywhere.

8.  The adjudicator analysed the applicant’s claim under the following applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”); and

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”).

9.  The adjudicator determined the appeal/petition without a hearing.  There is no absolute right to an oral hearing and he decided the appeal on the papers.  The adjudicator correctly set out the law and key legal principles relevant to the three applicable grounds he considered.  He set out the applicant’s claim and evidence as well as the up-to-date Country of Origin information he considered which included the information about the Sri Lankan politicians the applicant named in his claim.  He also set out how he arrived at the decision not to order an oral appeal hearing.

10.  He found that having regard to the materials and the nature of the issues raised by the applicant, he could dispense with an oral hearing.  He found there to be no issue as to the applicant’s credibility. He noted that the applicant did not submit new evidence in support of his appeal.  He was satisfied that he could still adhere to a high standard of fairness without a hearing which is required in dealing with torture claims.

11.  Having read both the Director’s decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  There were no new issues raised nor no issues of law to be considered.  It is highly relevant that when the applicant’s claim was dealt with by the Director, he was legally represented.  Having read the applicant’s supporting affirmation here and heard him make submissions, in the name of overall fairness the applicant would have had nothing useful to contribute by way of being heard if the adjudicator had conducted an oral hearing.

12.  The adjudicator went on to show that he fully understood the applicant’s case and evidence as well as the Country of Origin information.  Quite clearly on the applicant’s own facts, no officer of the Navy had ever mistreated the applicant in any way, not even verbally. After he deserted the Navy he was able to work in Colombo for about five years as a security guard without arrest.  As for his fear of Duminda, the adjudicator’s view was he chose to work for his boss voluntarily and the conflicts he witnessed appeared to be personal and had no connection to the government or state.  None of his family have ever been harassed by the Navy, the police or government and the applicant has had no trouble leaving for Singapore on holiday or leaving for Mainland China.

13.  Based on his findings and the applicant’s own facts the adjudicator considered the law and legal principles before finding that the applicant was not at risk of torture if he returned to Sri Lanka, nor at risk of ill-treatment under BOR 3 nor had a well-founded fear of being persecuted for a Convention reason.  He confirmed the decision of the Director.

Leave to apply for judicial review

14.  The supporting affirmation essentially repeated the applicant’s claim.  He does submit the adjudicator had failed to consider the fact he will be tortured by the Navy if refouled.  The adjudicator considered this and rejected this; he found there to be no evidence of a risk of this if refouled.

15.  He goes on to give further evidence that after he left Sri Lanka the violence escalated and his boss Bharatha was killed and Duminda wounded in a gun battle.  His boss’s daughter has now become a member of Parliament and campaigned for Duminda to be brought to justice and charged with her father’s murder.  These are all matters that happened after the applicant left Sri Lanka.  His point is that the adjudicator has failed to consider the applicant will not be able to seek protection and employment from his boss if he returns because he has died.

16.  I see no merit in the complaints set out in the applicant’s affirmation however in the oral hearing he did put forward a ground and that was the adjudicator failed to adhere to a high standard of fairness by refusing him an oral appeal hearing.  However, he then went on to give details of events that had happened between 2015 and 2017 in Sri Lanka; referring to Duminda’s appeal.  He said he was deprived of an opportunity to tell the adjudicator of this event and why it was still very dangerous for him to return home.  He wanted to produce a letter to this court that he had recently sent to him from Sri Lanka from his village but I explained that I would not take into account evidence that was not before the TCAB.

17.  As I have said above, I did consider whether the adjudicator acted fairly when he considered the applicant’s appeal/petition on the papers only.  I was satisfied the decision was fair and I agreed with the adjudicator that an oral hearing could be dispensed with in this appeal.

18.  I nevertheless considered with rigourous examination and anxious scrutiny the adjudicator’s decision.  I did not find any error of law by the adjudicator.  I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing.  I do not see it as a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.

19.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore I refuse leave for judicial review.

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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