RANAWEERE ARACHCHILAGE RUWAN NISHANTHA RANAWEERA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2668/2018

[2021] HKCFI 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2668 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 15 November 2015 (the “Decision”) on 23 November 2018 (the “leave application”).   Before the application came to be heard, he applied by letter dated 23 April 2019 to withdraw his application because the problem in his home country was solved and he wished to return. 

2.  However, Deputy High Court Judge Lung refused to entertain his request and gave directions that his case will be listed for hearing and if he has returned to his own country by then, his application will be dismissed for want of prosecution.  The directions were sent to the Applicant at his two addresses at 124 Un Chau Street and Ma Po Ping Road by post on 16 May 2019.  The mail sent to 124 Un Chau Street was returned un-delivered.

3.  On 13 March 2020, the Registry received a letter from the Applicant written in Sinhala language and sent from the Castle Peak Bay Immigration Centre.  The letter was returned to the Applicant with a note that it will not be processed as it was not written in either official language of Hong Kong.  That letter was returned with a stamp that the addressee had already left. 

4.  Enquiries made with the Immigration Department revealed that the Applicant’s last reported address was at 122 Un Chau Street.  Directions for the further conduct of his leave application were sent to that address at 122 Un Chau Street.  The Applicant did not respond. 

5.  Eventually, notice of hearing was sent to the Applicant to his address at 122 Un Chau Street and 124 Un Chau Street.  However, the Applicant did not turn up at the hearing.  Attempt was made by the court staff to contact the Applicant on the telephone number he provided to the Immigration Department.  It was revealed that the telephone service had been suspended.  All indications were that the Applicant did not wish to pursue his leave application and/or has returned to his home country.

6.  The Applicant is a Sri Lankan national.  He sneaked into Hong Kong from the Mainland on 9 August 2007.  After he was arrested, he applied for non-refoulement protection on 21 November 2007. 

7.  By a letter dated 18 April 2016 he applied to withdraw his non-refoulement claim.  He wrote:

“… I want to go back to Sri Lanka as soon as possible. I am safe to go home and I will buy my own air ticket. I want to cancel all my non-refoulement claims in Hong Kong …”

8.  In less than a month, Mr Karbhari on behalf of the Duty Lawyer Service wrote to the Director of Immigration (the “Director”) stating that the letter dated 18 April 2016 was not effective as it was written by a friend of the Applicant without the content having been read and explained to him.  Mr Karbhari said that at the time the letter was written, the Applicant was informed that his mother was seriously ill and so he decided to go back to Sri Lanka; but now his mother had been discharged from hospital.  Hence, the Applicant sought to have his non-refoulement claims re-opened.

9.  On 8 July 2016, the Director issued a Notice of Decision refusing the request to re-open (the “Notice”).  On 22 July 2016, the Applicant appealed the Notice to the Board.

10.  On 15 November 2018, the Board dismissed the appeal for two reasons.  First, on the fact, the Board did not accept the Applicant’s evidence that the letter was written without his understanding of the content and that his friend could have written such a letter without the Applicant’s authority and instructions. Second, on the fact and on the law, despite the Director’s request for supporting evidence, the Applicant failed to produce any evidence to support any special circumstances which could vitiate the Applicant’s withdrawal or which could make a refusal to re-open the claim unjust.  Under section 37ZE(2) of the Immigration Ordinance, a claimant has the burden of producing evidence of such special circumstances in order to justify re-opening his claim or to show it would be unjust not to re-open.

Conclusion

11.  Having considered all the circumstances of this case, the Court was satisfied that the leave application may be justly and fairly determined on paper in the absence of the Applicant.  The role of the Court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

12.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly directed itself on the law relating to an application for withdrawal and section 37ZE(2) of the Immigration Ordinance and the facts of the case; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

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

[1] [2018] HKCA 524 at para 14(1)