RATHNAYAKA MUDIYANSELAGE JAGATH PRIYANTHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2033/2018

[2022] HKCFI 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2033 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Sri Lanka who arrived in Hong Kong on 10 June 2005 as a visitor with permission to remain up to 15 June 2005 when he did not depart and instead overstayed, and was arrested by police some 4 years later on 9 July 2009. 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 the terrorist group Liberation Tigers of Tamil Eelam (“LTTE”) and/or by their former leaders who have since joined the Sri Lankan Government or the Parliament in revenge against him for having fought for the Sri Lankan Army fighting against the terrorist group, 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 Gonagolla, Ampara, Sri Lanka. After leaving school he joined the Sri Lankan Army where he was later made a corporal, and was assigned to serve in Jaffna fighting the LTTE for 9 years during which he heard that some LTTE members had come to his family’s home in Gonagolla looking for him which he suspected were to seek revenge against him for joining the army to fight against them.

3.  In 2000 the Applicant was assigned to the intelligence section to obtain information of the LTTE leaders with a view to capture or eliminate them including recruiting informers for information as to their whereabouts and activities, and in January 2004 with the information obtained from one of such informers, the Army were able to successfully attack one of LTTE camps in Vellavali killing some of their principle leaders and members.

4.  Several months after that operation, the Applicant was informed by his commander that they had intercepted information that the LTTE had targeted him for revenge and warned him not to leave the safety of the Army camp.

5.  Fearing for his life, the Applicant resigned from the Army in 2005 and moved to live in Ratmalana which was far away from his home district, but when he heard that the LTTE people were still looking for him everywhere, he therefore moved from town to town to avoid being located by them, and on 9 June 2005 he departed Sri Lanka for Hong Kong where he subsequently overstayed, during which he made an application to the UNHCR office in Hong Kong for a refugee status but was later rejected, and after he was arrested by police on 9 July 2009 and was referred to the Immigration Department for investigation, he then raised his torture claim and sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 17 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 22 July 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 former LTTE members upon his return to Sri Lanka as low due to the absence of any past ill-treatment from them, that the Applicant was but one of many soldiers in the Army to have fought against LTTE that there is no reason why he would be singled out or targeted for harm or revenge, that there is no such evidence of any intention or attempt against the Applicant all these years other than just hearsays or his own speculations, that LTTE were defeated by the Sri Lankan Army in 2009 and have since ceased all military activities against the Government while those leaders who have since joined the Government or the Parliament as politicians have never acted unlawfully or participated in any unlawful activities or made any threats against the Applicant that it is not accepted that the Applicant would face any such risk from any of them upon his return to Sri Lanka, that state or police protection would in the circumstances be available to him if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 21 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 part of Sri Lanka away from his home district in large cities such as Colombo where it would be difficult if not impossible for any remaining LTTE members to locate him.

8.  On 23 May 2017 the Director invited the Applicant 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”), and upon considering further submissions from him, the Director by a Notice of Further Decision dated 14 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-dergoable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Sri Lanka.

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 27 July 2015, and for which he attended an oral hearing on 21 May 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 7 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the Applicant’s claim unreliable when his credibility had been undermined or damaged by his failure to raise his claim upon his first arriving in Hong Kong until some 4 years later and after he was arrested by the police, that there were many questions such as why he chose to come to Hong Kong or why he did not just relocate to other part of Sri Lanka to avoid his claimed threats that he had failed to answer, and that in any event reliable COI show that the Sri Lankan civil war had ended in 2009 when LTTE was defeated and is a spent force and no longer poses any threats to anyone, that there is never any evidence of any threats from LTTE directed against the Applicant who was just one of many soldiers involved in the government’s fight against LTTE during all those years, and that in any event state/police protection would be available to him upon his return to Sri Lanka if needed as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.   

11.  On 26 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various complaints for his intended challenge which can be summarized as follows:

(1) That the Board erred in law in rejecting the credibility of his claim on the basis that he did not raise his claim when he first arrived in Hong Kong until years later when the fact is that he did immediately apply to the UNHCR for refugee status and it was only after his application was rejected by the UNHCR that he then raised his non-refoulement claim with the Immigration Department;

(2) That the Board erred in law in finding the Applicant’s claim unreliable by raising various questions thereof in its decision but without putting those to the Adjudicator at the hearing or to give him an opportunity to answer them which is unfair and unreasonable in the circumstances for the Board to find the Applicant unreliable; and

(3) That it was unfair for the Board to refuse to postpone his appeal hearing when his original counsel whom he trusted was away abroad and as a result DLS had to replace his counsel with someone new to the Applicant thereby affected his confidence in arguing his appeal before the Board.  

12.  The Applicant’s complaints under the first 2 grounds about the Board’s assessment of the credibility of his claim can be considered together, of which the Board stated in its decision as follows:

“21. For obvious reasons the appeal has failed independently of a lack of credibility. However for the sake of completeness I should address this issue. The Court of Appeal has said that a claimant who does not raise a torture claim as soon as he arrives in Hong Kong, but does so only after arrest, casts doubt on the veracity of his claim: Usman Butt, Sunil Koirala, Wasim Ashraf & Others: HCMA 70, 114, 244, 379, 402/2010, judgment at §41. Certain aspects against credibility are enacted in Section 37ZD of the Immigration Ordinance Cap 115 (“the Ordinance”), and one should pay attention to same.

22. The Appellant says he was harbouring “grave fears for his life” when he left Sri Lanka, yet he did not seek any help from anyone when he arrived in Hong Kong, nor did he do so for 4 years when he was here despite ample opportunities to do so: Section 37ZD(1)(c) of the Ordinance. He overstayed in Hong Kong, which shows dishonesty: Section 37ZD(3). Instead of approaching a police officer for example to raise his allegedly dire fears for his life, he did absolutely nothing for 4 years, yet as soon as he was arrested he raised a claim: Section 37ZD(1)(e).

23. Furthermore, he applied to the Sub-Office of the United Nations High Commissioner for Refugees (“UNHCR”) for refugee status, but did not consent for the information which he had provided to the UNHCR to be disclosed to the Director of Immigration for consideration, thereby concealing facts of his case, and the reason given was “To maintain the privacy of my earlier dealings with the UNHCR” (see Supplementary Claim Form QA 47 to 49 on Hearing Bundle page 375). Concealment of information is relevant to Section 37ZD(1)(a)(i) and 37ZD(2)(f) of the Ordinance.

24. The above concerns are significant regarding credibility and reliability. They were asked of the Appellant during the oral hearing, and his response was: (1) When asked whether he knew that overstaying his visa (after 15 June 2005) was unlawful, he evaded the question by saying he had “gone to the UNHCR” but did not answer the question, (2) he said there was no delay in raising a claim on arrival in Hong Kong because he had gone to the UNHCR before his visa had expired, (3) because of this he was not aware he was overstaying his visa until he heard from the UNHCR that his application was rejected, which was “in 2008”, (4) he agreed that he was arrested “about one year” after he knew the UNHCR had rejected his application, (5) when asked that during that one year, did he know that staying in Hong Kong was unlawful, he eventually admitted that he did, but said that he still did not raise any claim with the Director until after he was intercepted and arrested “because he was scared of being deported”, (6) after evading the question 3 times he eventually admitted that when overstaying he knew it was unlawful, and (7) as to his withholding consent for information provided to the UNHCR to be released to the Director, he said “No difference between consenting and withholding consent”, but when asked in that case why he ticked the “No” box, he now said “it was a mistake (i.e. should have ticked the “Yes” box) but he signed the Claim Form – he was now only trying to find an excuse.

25. Regarding the information which he had provided to the UNHCR which he concealed from the Director of Immigration, if what he has said to the UNHCR and to the Director was both true and consistent, one would expect him to welcome the opportunity to strengthen his story from another source instead of concealing information. One possible explanation may be that he had told different things to the UNHCR from what he had told to, or about to tell, the Director, and he knew that inconsistencies if discovered might damage his claim.

26. After examining the whole case and after listening to the Appellant at the oral hearing, I find him unreliable. Why he left Sri Lanka, why he chose Hong Kong, why in the absence of injury (in fact in the absence of even having been assaulted) when an obvious and a cheaper method to avoid the 2 men K&P was to simply move elsewhere in Sri Lanka, especially when he was safe and has never encountered anything hostile when in Ratmalana and Homagama and Negombo, yet he would travel 4000 km to such a far-away place as Hong Kong, why he chose to overstay in Hong Kong illegally, why he left it until after arrest that he raised a non-refoulement claim, and for whatever true purpose he decided to travel far and wide to and overstay in Hong Kong, the answers to all these matters he himself would naturally know, but as the burden of proof is on a claimant, he who is unreliable fails his claim, irrespective of the fact that all the alleged misfortunes, even if existed, fail to establish any substantial risk of CIDTP or Persecution.”     

13.  While the Adjudicator was certainly entitled to raise these questions with the Applicant during his appeal hearing as part of the assessment of his credibility, and that some of them were indeed recorded in the Decision as having been put to the Applicant as well as his answers ([24]), I agree that there does not appear from the decision that all of the relevant questions had indeed been so put or raised to the Applicant during the hearing, and if indeed they had, what were his response or answers? I am unable to find the rest of them in the Decision, or any such analysis thereof by the Adjudicator.

14.  More significantly, while the Adjudicator was also entitled to take account of the various behavior of the Applicant under the provisions of Section 37ZD of the Ordinance as damaging to his credibility, it would still be the first and main task of the Adjudicator to make findings as to the core and substantive facts of the Applicant’s claim, of which the Adjudicator had identified as his fear of being harmed or killed by LTTE members because he had served in the Sri Lanka Army and had acted as an informant leading to a successful raid of one of LTTE camps ([2] of the Decision), but of which the Adjudicator did not appear to have made any factual finding in the Decision, or to give any or sufficient reasons as to why they were not found to be credible, and instead the Adjudicator appeared to have placed undue emphasis on peripheral matters such as the Applicant’s failure to consent for information provided to UNHCR for his application for refugee status to be released to the Director, or of those other behaviors of the Applicant which the Adjudicator found to be damaging to his credibility under Section 37ZD of the Ordinance.

15.  As such I agree that there may be merits in these complaints of the Applicant over the Board’s methods in assessing the credibility of his claim, but no matter how flawed they might seem to be, it is my firmed view that ultimately they would not assist or advance the Applicant’s intended challenge of the Board’s decision in dismissing his appeal, as it is also clear that the Board in doing so did not just rely on its assessment of his credibility, as it had also found, correctly in this case, and from relevant COI which were never challenged by the Applicant or his lawyer at the hearing, that since the Applicant had left the country, the LTTE is “no more in Sri Lanka after their total defeat in 2009, that even previous LTTE cadres no longer practice terrorism, and that there is reasonable availability of State protection for victims of crime” ([7] of Board’s Decision).

16.  In §8 of the Decision, the Board also correctly found that reasonable relocation within Sri Lanka would also be available to the Applicant that any risk from any former members of LTTE including those who may have joined the Sri Lankan Government or the Parliament would just be too remote in the absence of any evidence of any threats from them against the Applicant during all these years.

17.  In the premises, and for the reasons given, notwithstanding the flawed assessment by the Adjudicator of the Applicant’s credibility, I do not find either Grounds (1) or (2) would assist or advance the Applicant’s intended challenge of the Board’s reasons for dismissing his appeal or rejecting his claim. 

18.  As for the Applicant’s complaint under Ground (3) of the Board’s refusal to postpone his appeal hearing so as to accommodate his former assigned lawyer from DLS, it was a matter entirely within the Board’s discretion in case management, and in the absence of any evidence or suggestion that the Applicant had as a result been so prejudiced, and also for the same reasons given as above, I do not find this ground would assist the Applicant’s case or that it is reasonably arguable for his intended challenge either.     

19.  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.      

20.  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.

21.  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.

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