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HCAL 858/2017
[2019] HKCFI 1499
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 858 of 2017
BETWEEN
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Walgampolage Sirinuwan Osada Buddhika Perera |
Applicant |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 47-year-old national of Sri Lanka who entered Hong Kong illegally on 4 September 2009 and was arrested by police on 6 September 2009. After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Sri Lanka he would be pursued by police for a murder case and/or harmed or killed by the family or associates of a murder victim, which claim was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism. He has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Kalubowila, Dehiwala, Sri Lanka. After leaving school he played professional cricket, got married with two children, worked in various companies, and in 2006 started his own business in trading activities and lending money.
3. In 2007/2008 he was lending money to his close friend AJ who was a known gangster who then gave money to another friend SS to tender for government contracts. One evening in July 2008 while the applicant was having a drink with AJ in Kahapola, SS and two associates came to talk to AJ about a problem over certain government contract when all of them then left and drove to a house where AJ, SS and one of the associates went inside to talk to someone while the applicant was waiting with the other associate of SS in the vehicle. After a while the applicant heard some altercation inside the house followed by several gun shots, and then SS and his associate came running out shouting that they should all leave, and so they drove away without AJ.
4. Later when the applicant heard that AJ had been arrested by police for shooting dead a man inside that house and that they were also looking for his accomplices who were seen leaving the scene. As the applicant was concerned that he might have been regarded as one of the suspects when he was seen leaving with SS that night, he therefore went into hiding at a friend’s place in Ingiriya in the Western Province where he stayed for four months without any incident.
5. In November 2008 he was told by his wife that the family of the murdered victim were looking to take revenge against AJ’s accomplices and had come to his house looking for him, and when he went to Rattanapitiya, where he was approached by several men and was asked whether he was involved in that murder, and when he denied they abducted him and assaulted him but he managed to escape and went into hiding.
6. After discussing with his wife the applicant decided that it was no longer safe for him to remain in Sri Lanka, and so he departed in February 2009 for Macau, and from there he later sneaked into Hong Kong and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 17 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 21 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 Right (“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”).
8. In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to Sri Lanka as low due to the absence of any ill-treatment from the family of the victim or that the alleged ill-treatment from them did not attain the minimum level of severity under any of the applicable ground, that there is no evidence that he was being pursued by police as evidenced by the court documents produced by him and that he was able to leave Sri Lanka without any difficulty, that in the absence of 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 work experience to move to other areas away from his home district such as Colombo where it would be difficult if not impossible for his perceived enemies to locate him.
9. By a Notice of Further Decision dated 13 June 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”).
10. 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 he filed on 4 September 2015, and for which he attended an oral hearing on 15 August 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 23 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board found the court documents produced by the applicant in support of his claim as to the murder show that only AJ, SS and his associate had been identified and named in the documents as those involved in the murder and were to be tried in the court proceedings without any reference to the applicant, and hence his concern that he had been implicated and was being pursued by the police or the victim’s family is without any basis other than his own bare belief, and hence rejected his claim that he was a wanted person by the police in relation to the murder, that if there was indeed a warrant for his arrest then it was a legal process that would make him a fugitive from justice instead for which he would not be entitled to non-refoulement protection, whereas if he was indeed being pursued by the victim’s family or associates for revenge, it would be a private matter without any official involvement that state or police protection would be available to him if resorted to, and concluded that he has failed to establish his non-refoulement claim on any applicable grounds.
12. On 8 November 2017 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, and in his supporting affirmation of the same date he merely repeated his claim when he deposed that:
“ I like to tell my true situation of my claim to you. I have real risk in my life if I go to my country. I need to face many dangerous and uncertain my life, my parents are past away when I live in Hong Kong. I can submit the death certificate of them as soon as possible and I submit my own identity document to Immigration department during my USM interview but they never taken any right decision on my case too. I gave my enough supporting document to them and taken unfair decision on my USM case. I am not satisfied in it. My Exhibit (1) 1 page with this.”
13. The exhibit referred to in his affirmation is in fact just a copy of the notice of the Board’s decision to him, and as the applicant did not request for an oral hearing for his application, accordingly no hearing was held, and up to now no proper ground has been put forward by him for his intended challenge.
14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 decision 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 Re Litoun Mounsy [2018] HKCA 537.
15. In the present case the applicant’s claim was rejected by the adjudicator upon hearing him in evidence and upon taking into account of all the documents and information provided by him in the process and available to the Board as set out in details in paragraphs 22 – 71 of the decision, and having proceeded to consider them as well as the decisions of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
16. 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.
Dated the 13th day of June 2019.
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(NG Ka-wing)
for Registrar, High Court |
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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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 13 June 2019
Walgampolage Sirinuwan Osada Buddhika Perera
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13 June 2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2173/15/9/26/S49
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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