BUDDADASAGE SUDESH JETHENDRA KUMARA v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

HCAL 758/2019

[2021] HKCFI 3329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 758 of 2019

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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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 31 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

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

The applicant

4.  The applicant is a citizen of Sri Lanka.  He came to Hong Kong on 28 December 2012 but was refused permission to land.  On 12 March 2014, he lodged a non-refoulement claim.     

5.  The applicant claimed that if refouled, he would be harmed or killed by the people of Major Chandana Kaluaracchi (“CK”) from Sri Lankan Army, because he knew CK’s wrongdoings.  He also feared that he would be framed for stealing weapons and uniforms.  The applicant said that he used to perform cleaning jobs for different people.  On 23 November 2010, he was transferred to Sinha Regiment Camp.  In around September 2012, he assisted in loading some parcels.  However, he was told by an officer that some items (weapons, uniforms and hand bombs) were missing.  CK put the blame on him and asked him to leave.  As he had worked for CK before and knew that CK had some underground dealings, he escaped to Kandy.  In two incidents, he was chased by CK’s followers but suffered no injuries.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 8 of the Director’s Decision described below and paragraphs 9-30 of the Board’s Decision.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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

c.   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

d.   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”).

7.  By Notice of Decision dated 23 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by CK upon refoulement was assessed to be low [18]-[19]; that state protection was available to him [20] and that internal relocation was an option open to him [20(c)].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  On 17 December 2018, he appeared before the Board and answered inquiries from the Board with the assistance of an interpreter.  The applicant first requested an adjournment for the oral hearing as he only received the hearing bundle when he arrived for the hearing.  His concern was that he was unable to recall the dates and other matters.  The Board advised him that the hearing would proceed and that it would make allowances in relation to his inability to recall the events [41]-[43].

9.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board evaluated the applicant’s evidence against his oral testimony, and accepted that he had worked for CK in some illegal activities.  However, the applicant did not claim that he faced risk of harm because of his work with CK or feared that the authorities would prosecute him for his involvement in these activities. Instead, the applicant claimed that he feared harm in relation to the theft of weapons and clothing he loaded into a vehicle in September 2013, which the Board refused to accept its truth [61].  In particular, the Board found that several material aspects of his claim were devoid of common sense and inconsistent [62]-[68].  The Board did not accept that he had given a truthful account of his reasons for leaving Sri Lanka [72].  Finally, the Board was not satisfied that there was a real chance, a real risk or substantial or strong grounds for believing that he would suffer harm amounting to torture, CIDTP/torture, a risk to his life or persecution upon his return to Sri Lanka [75].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 19 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he would submit documents to prove his case and that his life becomes dangerous if he returns to his own country.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.  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.”

15.  He has submitted no valid ground to assist his application.  Although the Board accepted part of his facts, it had, however, rejected the main facts in support of his claim.

16.  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.

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

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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