KOMPANNAGE CHANDRA FONSEKA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1310/2019

[2024] HKCFI 1163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1310 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 March 20219 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 70, is a Sinhalese from Sri Lanka.  She entered Hong Kong on 19 March 2005 as a visitor.  She overstayed since 19 April 2005 and was arrested by the police on 17 October 2007.  The applicant made a torture claim on 25 October 2007, which was rejected on 28 October 2013 (“the Director’s 1^st Decision”).  On 11 November 2013, the applicant made an appeal on the Director’s 1^st Decision, but she was informed on 15 December 2014 that her appeal was adjourned sine die due to the introduction of Unified Screening Mechanism.  On 2 October 2018, the applicant submitted a supplementary claim form and made a further non-refoulement claim on all applicable grounds other than Torture risk^[1]. The non-refoulement claim was made on the basis that, if refouled, she would be harmed or even killed by her brother Kompannage Jayasena Fonseka (“Jayasena”), who was a supporter of People Alliance (“PA”) now known as United People’s Freedom Alliance (“UPFA”), because he was not happy about her involvement in United National Party (“UNP”). 

5.  According to the applicant, she married her husband in 1973.  She then followed her husband’s political view and became a supporter of UNP.  She was however, not formally registered as a UNP member because she needed to take care of her family.  In the meantime, most of her family members were PA/UPFA supporters.  Among them, Jayasena was the most radical on the applicant’s involvement in UNP.  The applicant claimed that Jayasena was an alcoholic.  He became violent when he was drunk and had assaulted the applicant on many occasions previously.

6.  In November 2000, the applicant operated a mobile wooden cart to sell congee and roasted peanuts.  In 2001, there was a general election and the applicant was involved in enlisting votes as well as putting up posters for UNP.  Around two days before the general election, Jayasena came to her wooden cart and threatened her not to support UNP.  Subsequently, on the day when the election result was announced, the applicant was informed by a police officer that her wooden cart was damaged by PA supporters.  She attended the scene and found her wooden cart turned upside down with all the utensils scattered around.  The applicant then left her hometown and went to stay with her friend for about a year.  She then moved to stay at her daughter’s home for two years as her friend had gone to Cyprus.

7.  During the applicant’s stay at her daughter’s home, she assisted a UNP candidate in the 2004 election campaign by putting up posters.  In April 2004, when Jayasena found out the applicant’s assistance to UNP, he came to her daughter’s home to look for her.  He was drunk and was carrying a big knife at the material time.  The applicant hid herself and heard Jayasena threatening her daughter that he would kill the applicant if she continued to support UNP.  After this incident, her daughter felt the applicant was no longer safe in Sri Lanka. So she arranged with an agent for the applicant to leave the country.  Eventually, the applicant left for Hong Kong on 19 March 2005, almost a year after the verbal threat from Jayasena.

8.  The applicant had a conversation with her mother on 4 December 2006 and she also kept contact with her daughter after she arrived in Hong Kong.  She was informed that Jayasena was still looking for her at her house.

9.  The applicant considered internal relocation within Sri Lanka not viable because PA/UPFA supporters could easily locate her with their strong network.  She was also of the view that she could not seek help from the authorities, as she had no money to bribe them.

10.  Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 29 October 2018 (“the Director’s 2^nd Decision”).

The Director’s Decision

11.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By way of the Director’s 2^nd Decision, the Director dismissed the applicant’s claim.  The Director was of the view that the low intensity and frequency of past ill-treatment from Jayasena and other PA/UPFA supporters indicated that they had no real intention to harm her, so that her perceived risk of harm is not imminent.  The applicant’s delay in making her torture claim was also inconsistent with the behaviour of a person subject to genuine fear [24]-[32].

13.  In any event, (i) state protection will be available to her upon her return [33]-[42]; (ii) internal relocation is viable [43]-[49] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [50]-[56] or Persecution risk [57]-[62].

The Board’s Decision

14.  The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board.  On 13 March 2019, the Board conducted an oral hearing.  The Board explained to the applicant that it would be sensible for her to give evidence to clarify and expand her case.  It further advised her that the issue of internal relocation would be further addressed.  Having heard the explanation, the applicant elected not to adduce further evidence or provide further clarification during the oral hearing [39]-[40].  

15.  Given that no oral evidence was given, the Board was unable to make findings of the applicant’s credibility.  In any event, the Board found that even if the applicant’s claims were true, she was only subject to unpleasant threat from her drunken brother and damage to her wooden cart.  The Board found such low intensity and frequency of past ill-treatment against her is indicative of a small future risk of harm upon her return to Sri Lanka [42]-[50].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [26]-[36], [51].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant said in her affirmation in support of her application that she is still having problem with the ruling party and if she returns to her country, her life will be in danger.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.  Before the Board, the applicant was advised to give oral evidence so that she might expand her case, clarify her previous evidence and to discuss the internal relocation issues.  Having been so advised, the applicant said “I don’t want to give evidence”.  The question is whether the Board could draw adverse inference on her credibility under the circumstances.  This issue was discussed in my previous decision in the case of Girpreet Singh v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2022] HKCFI 799.  In this case, I discussed that the Court of Final Appeal in Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27, in which Lord Hoffmann NPJ cited the High Court of Australia: Weissensteiner v. The Queen (1993) 178 CLR 217 held that the court was entitled to draw adverse inference against the defendant in a criminal case where the defendant elected not to give evidence.  The discussion carried on:

“20. One must bear in mind that the above is a criminal case where the burden of proof is on the prosecution and the defendant has no burden of proof of his innocence. Therefore, the defendant is not obliged to give evidence. In the present case, the burden of proof is on the applicant and he has the obligation of proving his case to the Director and the Board.

21. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC 526 CA, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, “to simply sit back and require the Director to disprove it”. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

22. The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a).^[2] As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

23. I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.”

23.  This Board had taken a more reasonable approach in light of the applicant’s election of not giving oral evidence.  We shall see this in the Board’s Decision:

“42. In preparation for the Oral Hearing, the Board had spent hours reading and considering the contents of the Hearing Bundle, with emphasis on the Appellant’s contributions, i.e. TCF, SCF, Sls 1 and 2 and the First and Second Appeal Notices. In the wake of the Appellant not to give evidence before the Board, all the materials were fully considered again, in the manner due a ‘Rehearing and with regard being had to the low standard in it being incumbent on the Appellant to satisfy the Board that there is a real risk or chance or substantial grounds for believing that she will suffer the harm she claims to fear if she returns to Sri Lanka.

47. With the Appellant electing not to give evidence before the Board, the Board was left with no direct material from which to properly make findings as to the Appellant’s credibility. Also, with no oral evidence from the Appellant to possibly better or more fully present her claim and the Grounds of Appeal, the Board finds there is nothing to tell against the findings in the First and Second Decisions that the Appellant’s non-refoulement claims on all applicable grounds failed.

48. The unsupported claims, when taken as true, fall very well below the levels necessary to engage any of the grounds for the Appellant’s non-refoulement claims.”

24.  The Board agreed with the Director that the low intensity and frequency of the claimed past ill-treatment from the applicant is indicative only of a very small future risk of harm upon the applicant’s return to Sri Lanka.

25.  It is therefore clear that even though the applicant elected not to give evidence, the Board proceeded to consider the evidence before it carefully.  It finally came to its own decision to dismiss the applicant’s appeal.

26.  The applicant’s reasons raised in paragraph 18, supra, are not valid to challenge the Board’s Decision.

27.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

28.  There is no evidence that shows that the applicant has any realistic prospect of success in her intended judicial review.

CONCLUSION

29.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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