WEWALDENI KANKANAMALAGE AND ANOTHER v. THE PETITION TEAMS (SECURITY BUREAU)

HCAL 492/2018

[2020] HKCFI 1697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 492 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 42-year-old national of Sri Lanka who entered Hong Kong illegally on 12 September 2009 and was arrested by police on 14 September 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by supporters of rival political party United People’s Freedom Alliance (“UPFA”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Warakapola, Sri Lanka.  After leaving school he worked as a mechanic, and followed his father’s footstep to become a supporter of the political party United National Party (“UNP”), and in 2005 he became one of the body guards of a UNP leader Mano who was an elected member of the Parliament.

3.  One day in 2006 or 2007 while the Applicant and other body guards escorted Mano to a local election, someone threw several hand grenades into the crowds injuring several people, and of which the Applicant suspected that UPFA was trying to harm Mano.

4.  On another occasion in April 2007 the Applicant and other body guards escorted Mano to a UNP meeting in Kegalle, during which a group of UPFA supporters appeared to attack the UNP members but the Applicant managed to escort Mano to escape from the scene unharmed.

5.  One week after the incident, a group of unknown men came to the Applicant’s home asking for the Applicant and threatening to kill him for being Mano’s body guard, and only left after they could not find the Applicant in the house.

6.  Several weeks later while the Applicant was on his way to work, he was shot at by some men whom he suspected to be from UPFA, but he managed to escape unharmed and ran home.

7.  On 25 December 2008 the Applicant and other body guards escorted Mano to a UNP meeting in Rambukkana, some UPFA people appeared and fired shots at them, and when the UNP people returned fire, one of the assailants was killed, and the Applicant and other body guards were able to escort Mano to escape from the scene unharmed.

8.  About a week later, a group of gangsters whom the Applicant suspected were working for UPFA came to his house looking for him, and when they could not find him, they ransacked his house and broke things and threatened his mother they would kill him in revenge for the early shooting incident in Rambukkana.

9.  After the incident, the Applicant was advised by Mano to go into hiding, and so he fled to Colombo to take shelter in a friend’s place without incidents, but when he heard that the UPFA people were looking for him everywhere, he felt it was no longer safe to remain in Sri Lanka, and so on 3 July 2009 he departed for Macau, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

10.  By a Notice of Decision dated 22 July 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 UPFA people upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that the objective evidence is that the UPFA people were only after Mano and that the Applicant was caught in between their conflicts as one of Mano’s bodyguards with no reliable evidence that he had been targeted by them, 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 such as Colombo where he had stayed before without incidents and where it would be difficult if not impossible for those UPFA people to locate him.

12.  By a Notice of Further Decision dated 5 April 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

13.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 5 August 2015, and for which he attended an oral hearing on 2 May 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found even on the Applicant’s own case of no evidence that he had ever been subjected to any ill-treatment from the UPFA people that would amount to torture, that objective evidence shows that the UPFA were only targeting Mano with the Applicant being caught in between their conflicts as one of Mano’s bodyguards, and given the fact that he had since 2009 stopped working as one after having left Sri Lanka that there is no reason for those UPFA people to have any adverse interest in him after all these years that it would be safe for him to return to Sri Lanka without any risk of harm from anyone that his claim for non-refoulement protection failed on all applicable grounds.      

15.  On 27 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 or in his supporting affirmation of the same date other than a regurgitation of his claim that his life would be in danger if he were to return to his home country but without putting forward any proper or valid grounds for his intended application.  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. 

16.  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.      

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