RE AJ

HCAL 166/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 166 OF 2012

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J U D G M E N T

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1. The applicant seeks leave to commence judicial review of the rejection of his petition against the refusal of his claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) by Mr William Lam, an Adjudicator of the Petition Team.

2. The applicant was born in mid-1981 in Sri Lanka.  He lived in that country until the end of July 2005 when he departed for Hong Kong through Thailand and mainland China.  He left his home country allegedly for the purposes of escaping from harm by some gangsters and the arrest by the police.  All these allegedly arose out of his helping a candidate in an election in April 2004.

Lack of response from the applicant

3. The facts mentioned below are gathered from the determination by the Director of Immigration on the applicant’s CAT claim.  The determination was supplied by the director to the court as part of the director’s initial response to this application.  The determination states that these facts were supplied by the applicant to the director. 

4. The applicant has been invited to make submissions to the court on the director’s determination.  The letter inviting submissions from the applicant was initially sent to his address as stated in the application, but it was returned on the ground that the address was incomplete.  Another invitation was then sent to the applicant’s address as stated in his petition.  That letter was also returned by the post office.  Hence, the court has not been able to contact the applicant and no submissions have been received from him on the contents in the determination.

The facts as stated in the determination

5. The applicant told the director that he was single.  He had received some 11 years of formal education in Sri Lanka.  He used to work as a helper in a shoe shop owned by his father and elder brother. He had never been arrested, detained or imprisoned in his country. 

6. His father was a member of Sri Lanka Muslim Congress Party (“SMCP”).  He also supported this party. 

7. One Noordeen was a member of SMCP and a member of parliament for many years before 2004.  The applicant supported Noordeen and campaigned for him in the election which was held on 2 April 2004. 

8. Noordeen had an opponent in the election called Rishad.  Rishad also belonged to SMCP and was a member of parliament but of a lower rank than Noordeen.

9. Rishad had a friend called Dasa who was a deputy minister in the government at the time of the 2004 election.  Dasa belonged to the Peoples United Front (“PUF”). 

10. Dasa supported Rishad in the 2004 election.  People feared Dasa because he was a gangster.  One day in late March, which was about 10 days before the election, the applicant held a small campaign meeting to support Noordeen.  He put up posters and pictures along the street for the meeting.

11. There were then 10 to 15 male supporters of Dasa who came to disturb the meeting.  They tore off the posters and attacked the applicant.  They did so to support Rishad.  The applicant was punched by one of the attackers and he picked up a stick to fend off and hit back at the attacker.  Eventually the police was summoned.  The incident lasted about 10 minutes.  The attacker against whom the applicant had hit back bled badly.  The applicant later learnt that this attacker had to be hospitalised for 25 days.

12. After the fight, the applicant ran away and hid in a forest for a few hours.  He then went to live in a relative’s house some 5 kilometres away from his home and the venue of the meeting.  He learnt that the police was looking for him because the people in Dasa’s camp had reported to the police that he had attacked a person.  He then moved around from the houses of relatives to houses of friends to avoid the police.

13. Noordeen lost the election to Rishad and Rishad switched from SMCP to PUF.  The police continued to look for the applicant after the election.

14. In May 2004, the applicant learnt from a friend that the supporters of Dasa were looking for him for revenge as he had hurt one of them.  The applicant then moved to another part of the country which was about an eight hour bus ride from his home.  He lived there for about four months.  He is a Muslim and the Muslims were a majority in that area.  His father had a friend there whom he knew well.

15. Later, his father told him that the police was extending the area of search which would include his then hiding place.  On his father’s advice, he moved in November 2004 to another part of the country which was a three to four hour bus ride further away.  He stayed there in the house of another friend of his father.

16. In February 2005, his father told him that the search area was again extended to include his then hiding place.  On his father’s advice, he moved in March 2005 to another place which was another five to six hour bus ride away.

17. In June 2005, he again moved to another place as a friend of his advised him that the search area was again extended to cover his then hiding place.

18. At the end of July 2005, he was told that the police was looking for him all over Sri Lanka and he should leave the country.

19. Noordeen died after the election and the applicant had no more support in Sri Lanka. 

20. He then left Sri Lanka on 28 July 2005 through its international airport with his passport.  He encountered no problem in his exit from the country.

21. He arrived in Hong Kong on 5 August 2005 through Thailand and mainland China.  He was permitted to stay here for 30 days.  But he overstayed from 5 September 2005 onwards.  He applied to UNHCR’s office in Hong Kong for refugee status sometime in 2006.  Apparently his application was unsuccessful.

22. He was arrested by the police on 18 September 2006 for overstaying and was referred to the Immigration Department on 20 September 2006.  He made his CAT claim to the Director of Immigration on 25 September 2006.  He was released on recognizance on 14 January 2007.

23. He alleged that the attackers who disturbed the political meeting in late March 2004 were Dasa’s supporters.  Dasa had a lot of influence in the police and the police would listen to Dasa.  Dasa was also powerful amongst the Sinhalese.  For these reasons, he did not report to the police against the attackers.  He thought that if he should be arrested, he would be tortured and badly treated.  It was his fear of the arrest and unfair treatment by the police that he had fled after the fight.

24. He thought that even though Dasa might have retired, his wife would have taken up his position.  Though he had not met Dasa’s supporters since March 2004, he thought that Dasa’s supporters also had strong influence and control of the police throughout Sri Lanka as Dasa and his wife were still powerful in the government.  He also said that the person whom he had hurt had become the boss of the gangsters at the place where he came from and that person wanted to take revenge on him.  The Muslims to whom he belonged was also a minority in that area.

Rejection of the CAT claim and dismissal of the petition against the rejection

25. His CAT claim was rejected by the Director of Immigration on 31 October 2012.  He petitioned to the Petition Team of the Security Bureau, but his petition was rejected by the adjudicator Mr William Lam on 30 November 2012.  He then applied on 5 December 2012 for leave to commence judicial review against the rejection of his petition by Mr Lam.

The law

26. Section 37ZI(3) to (5) of the Immigration Ordinance provide for the acceptance and rejection of a torture claim as follows:

“37ZI. (3) A torture claim must be accepted as substantiated if there are substantial grounds for believing that the claimant would be in danger of being subjected to torture if the claimant were removed or surrendered to a torture risk State.

(4) A torture claim must be rejected in the absence of the substantial grounds for belief referred to in subsection (3).

(5) In determining whether there are substantial grounds for the belief referred to in subsection (3), all relevant considerations are to be taken into account, including, where applicable, the following matters in relation to the conditions in the torture risk State —

(a) whether there is a consistent pattern of gross, flagrant or mass violations of human rights in the torture risk State; and

(b) whether there is any region within the torture risk State in which the claimant would not be in danger of being subjected to torture.””

Torture is defined in section 37U(1) as:

“37U (1) torture (酷刑) means an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person—

(a) for such purposes as—

(i) obtaining from that person or a third person information or a confession;

(ii) punishing that person for an act which that person or a third person has committed or is suspected of having committed; or

(iii) intimidating or coercing that person or a third person; or

(b) for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity, excluding pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

Discussion and decision

27. The applicant’s case is built on his fight with someone in Dasa’s camp in the election campaign meeting he organised in late March 2004 for Noordeen.

28. There is however no evidence that the Government of Sri Lanka was in anyway involved in the incident.  Though Dasa at the time was a deputy minister of the government, that alone could not have made the attack by his followers to the campaign meeting an act of the government or a public official or other person acting in official capacity.  Even if Dasa should be behind this attack, of which there is no direct evidence, that alone would not mean that the attack could be attributed to the government or any public official or any person acting in official capacity.  If Dasa was indeed behind the attack, the evidence available only permits an inference to be drawn that he personally, and not the Sri Lankan government, did it to support Rishad.  There is also nothing to suggest that the government or any public official or any person acting in official capacity had acquiesced in the attack. 

29. In fact, the police was summoned to the scene when Dasa’s supporters were making disturbance to the meeting.  After the incident, the police was trying to locate the applicant because a report was made to the police that the applicant had struck someone resulting in that person being hospitalized for 25 days.  The police action therefore cannot be categorized as an act of torture as defined in section 37U of the Ordinance.

30. The applicant now says that the person whom he had struck is the boss of the gangsters at the place where he came from.  Even if this is true, it does not mean that there is no other region in Sri Lanka in which he would not be in danger of attack by that alleged gangster.  In any case, the applicant’s fear is an alleged revenge by a gangster for what the applicant had done to him nearly some 9 years ago.  There is no evidence save the applicant’s bare assertion that such potential attack has anything to do with the Sri Lanka Government, any public official of that country or anyone acting in official capacity.  The applicant’s assertion of the influence of Dasa, his wife and his supporters over the Sri Lanka police is again unsupported by any other evidence.

31. In the circumstances, I hold that the applicant has failed to show substantial grounds for believing that he would be in danger of being subjected to torture if he should be surrendered to Sri Lanka.

32. I therefore dismiss this application.