DON AMARASINGHALAGE DON CHANDRA JANAKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1256/2019

[2024] HKCFI 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1256 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 55-year-old national of Sri Lanka who first arrived in Hong Kong on 13 September 2000 as a visitor who subsequently overstayed and was repatriated to Sri Lanka on 29 April 2002 but returned to Hong Kong again less than 2 months later on 15 June 2002 on a passport with another identity and subsequently overstayed, and was arrested by police more than 4 years later on 10 June 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the political party Janatha Vimukthi Peramuna (“JVP”) (People’s Liberation Front) as he supported their rival United National Party (“UNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Hiripitiyagama, Kekirawe, Anuradhpra District, Sri Lanka. After leaving school he worked as an estate supervisor, got married and raised a family with 2 children in his home district, and supported the ruling party UNP regularly attended their local meetings and activities.

3.  In 1987 he became the personal security and driver for one of UNP leaders who was also a minister of the Sri Lanka government which was then involved in the fight against JVP’s insurgency campaign, during which many UNP members and supporters were killed by the JVP people, including the Applicant’s brother-in-law who was shot dead in 1989.

4.  Shortly thereafter the Applicant was approached by some of the JVP people for details of the daily schedule of the UNP’s minister for whom he was working with the intention of assassinating the minister, and when the Applicant refused to divulge any information to them, they then threatened him and warned him that next time if he still refused to give them the information that he would be killed.

5.  Several days later while the Applicant was travelling with a friend on his car to visit his mother in her home village, they were ambushed by some JVP people who fired gun shots at them that killed his friend but the Applicant managed to make his escape without harm when the army arrived to rescue him.

6.  However, after another failed attempt to kill him by those JVP people who fired shots at him but missed him when he was guarding the minister’s house at night, the Applicant became fearful for his life and departed Sri Lanka in September 2000 for Hong Kong where he overstayed and was subsequently arrested and repatriated to Sri Lanka in April 2002, but as he was still fearful of further attacks by the JVP people, he again departed the country in June 2002 for Hong Kong on a passport with a different identity, and upon his subsequent arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 27 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While released on recognizance pending the determination of his claim, the Applicant was again arrested by police in 2011 for theft for which he was fined or given a 7-day imprisonment, and in 2014 for possession of offensive weapons, and possession and trafficking of dangerous drugs for which he was convicted and sentenced to prison for 5 ½ years.

8.  By a Notice of Decision dated 27 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  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 JVP people upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the JVP people to specifically target the Applicant for any political reasons and that in any event it is not accepted that after all these years since the Applicant last left the country in 2002 that they would still have any adverse interest in him, that JVP was then regarded by the Sri Lankan government as an insurgency against the country that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there have since been significant political changes in Sri Lanka that JVP has subsequently become a different political party that supports the government and would therefore no longer post any risk to the Applicant or any UNP members or supporters, and if necessary that reasonable internal relocation alternatives are also 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 areas of the country away from his home district in large cities such as Colombo where it would be difficult if not impossible for anyone to locate him.

10.  On 9 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 March 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the Applicant’s account of events occurred to him prior to his last departure from Sri Lanka for Hong Kong in 2002 including that he might have been the driver for a former UNP minister and that he was probably involved in the various violent incidents between JVP and UNP at that time but found even on his own case that he had lived safely in Sri Lanka for 10 more years without any harm after the last incident in 1990 as mentioned in his account and up to 2000 when he first left the country for his first trip to Hong Kong which together with the significant changes in Sri Lanka which have since transformed the political situations of the country according to the relevant COI that JVP no longer post any risk to any UNP members or supporters that the Board concluded that there is no evidence to suggest that the Applicant would still be at any risk from JVP or that they would still have any adverse interest in him after almost 30 years since the last incident that the Applicant’s claim for non-refoulement protection failed on all the applicable grounds.

12.  On 9 May 2019 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, nor did he subsequently attend the scheduled hearing of his application without explanation. As such and in the absence of any error of law or irrationality 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.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding of any real risk that he may face from JVP upon his refoulement to his home country after his alleged incident of almost 30 years ago in Sri Lanka for the thorough and detailed analysis and reasoning as well as relevant COI as set out in paragraphs 26 - 65 of its decision and with the benefit of hearing the Applicant in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

15.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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