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HCAL 455/2019
[2023] HKCFI 1043
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 455 of 2019
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BETWEEN
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Panagoda Liyanage Suranga Dulip Perera |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 15 February 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 June 2017 (the “Notice”). He did not request an oral hearing. Having considered the nature of the leave application, the papers and the issues raised, the Court considered the leave application may be justly determined on paper without an oral hearing.
2. The Applicant is a Sri Lankan national, now aged 38. He first entered Hong Kong on 19 August 2005 as a visitor under the name of “Panagoda Liyanag (sic) Suranga Dulip Perera” and was permitted to stay until 19 September 2005. On 12 June 2007, he was arrested for overstaying. He lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) on 29 June 2007 (the “CAT Claim”). He made several requests to return to Sri Lanka and then backtracked by reopening his claim between February 2008 and May 2012. Eventually, he agreed to and was repatriated on 2 July 2012. His CAT Claim was deemed withdrawn.
3. On 10 May 2013, the Applicant appeared in Hong Kong and surrendered to the Immigration Department. He alleged that he had entered Hong Kong illegally via Mainland China on 17 April 2013. He produced a passport under the name of “Dedigama Arachchilage Niroshan Dias”; but asserted that this identity did not belong to him and that the identity in paragraph 2 above was his true identity.
4. He raised a non-refoulement claim under the Unified Screening Mechanism (“USM”) on 8 June 2013, 25 June 2013 and 8 July 2013. His claim was assessed on all applicable grounds under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] and rejected by the Director via his Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of screening interview in the presence of his lawyer. In gist, he claimed that, if returned to Sri Lanka, he will be harmed or killed by an individual called “Nalin” and his gang associated with the United People’s Freedom Alliance (UPFA). His fear arose out of his personal dispute with and assault on Nalin and also because of his and his father’s association with the United National Party (“UNP”).
6. The Applicant was born in Norwood, Central Province in Sri Lanka. He is single but has a son with his girlfriend born in Hong Kong in December 2014. He had completed 11 years of formal education and worked as a house-keeper in two hotels in Sri Lanka from 2000 to 2004. His father was a committee member of UNP in the Pothanegama branch. His father was a renowned speaker at rallies held by the UNP. The Applicant attended those activities and rallies of the UNP to draw support from the public and to assist his father.
7. The Applicant and Nalin were colleagues in a hotel. Nalin was a good friend of the hotel manager and belonged to an underworld gang organised by the Chief Minister of the UPFA in Anuradhapura (the “Chief Minister”). Nalin was also a close friend with the Chief Minister’s son, who is currently a member of parliament, Minister for Agriculture and Secretary of the Sri Lanka Freedom Party (the “Minister”) and is a very close confidante of the current Prime Minister.
8. The Applicant alleged that Nalim forced him to take drugs and caused him to be addicted. He had conflicts with Nalim on several occasions. In or around 2004, Nalin accused the Applicant of stealing tips from some Indian customers and made a report to the manager. Though his name was cleared, the Applicant decided to quit. As he was leaving, Nalim continued to make accusations against him and attacked him from behind. Feeling angry and for the loss of face, the Applicant gathered some of his friends and returned to the hotel to attack Nalin with clubs. Nalin suffered injuries to his head and fell to the ground.
9. The Applicant fled to his maternal grandmother’s house as he was worried that the police or members of the UPFA would look for him in his home. He hid there for about 4 to 5 days. He was informed that the police and a gang belong to the UPFA were looking for him. A police friend of his father also told him that Nalin had exaggerated his injuries and condition.
10. Then the Applicant surrendered to the police. Upon the instigation of the Chief Minister who informed the police that Nalin’s condition was very serious, the Applicant and his friends were not allowed bail. They were remanded in prison for 14 days. During the remand, they were ill-treated, beaten by prison guards, and not allowed to sleep. Subsequently, his court case was resolved between him and Nalin by payment of damages and he was released from prison (as he told the Board at the hearing).
11. When he returned home, he was informed that Nalin and his gang had come looking for him on six to seven occasions. They had abused his mother and threatened to kill him. To avoid the danger, the Applicant moved to a friend’s house and stayed until 2005. Nothing eventful occurred during that period of time. As the Applicant’s parents were worried for his safety, his father arranged for him to come to Hong Kong on about 19 August 2005. There was also civil war and mass killing in Sri Lanka at the time.
12. Two days after his repatriation back to Sri Lanka in July 2012, five men armed with pistols came to his home. While the men were talking to his mother, the Applicant escaped through the backdoor. He fled to his friend’s house where he stayed until the end of July 2012. His mother informed him that Nalin and his gang continued looking for him. Believing it was no longer safe for him to remain in Sri Lanka, his father arranged for him to seek refuge in Malaysia. However, he was denied entry and was deported. He stayed at various places in Sri Lanka until 13 April 2013 when he went to the Mainland China from where he sneaked into Hong Kong on 17 April 2013.
13. The Applicant never sought help from the police as he believed they were under the influence of the UPFA.
The finding of the Board
14. The Board spent 10 pages analyzing the Applicant’s evidence. While it considered some aspects of his claim plausible, on the whole the Board found much of the Applicant’s evidence to be speculative, vague and lacking in credibility. This led the Board to find that many aspects of the Applicant’s claims are not credible.
15. The Board accepted that some enmity between Nalin and the Applicant may have developed which led to Nalin accusing him of stealing tips and possibly assaulting him as he was leaving the hotel; that the Applicant returned with his friends to attack Nalin in retaliation; that he turned himself to the police; that he was remanded for 14 days during which time he was ill-treated; and that he and Nalin settled their dispute by paying Nalin damages.
16. The Board found the Applicant’s evidence regarding Nalin’s profile as a member of an underworld gang confusing, vague and speculative and based on hearsay from his father which suffered the same defect. It found the Applicant’s evidence about the aggressiveness of Nalin’s action exaggerated in an attempt to build Nalin’s profile. It did not accept Nalin was an underworld gangster or associated with underworld gangsters or is a close friend or otherwise associated with the Chief Minister, Minister or the UPFA.
17. The Board found it incredible that the Chief Minister in his position would consider the Applicant’s father a threat because of his limited political activities in the UNP and that the Minister would involve himself in plans to kill or kidnap the Applicant because he used to go with his father and support the UNP. It rejected the Applicant’s evidence that the Chief Minister influenced the police to remand him in custody by exaggerating Nalin’s injuries as it is the Applicant’s own evidence before the Board that he had broken Nalin’s skull.
18. The Board did not accept that Nalin tried to kidnap and kill the Applicant or continues to locate him after he had already paid Nalin damages. It also found it incredible that Nalin would continue to hold an adverse interest in the Applicant and continue threatening or enquiring for his whereabouts after such a long lapse of fourteen years.
19. Having rejected his claim of being targeted by the UPFA, the Board did not accept the Applicant in his position as a low level UNP member would face problems with the UPFA. In any event, on the basis of credible country of origin information, there is nothing to support the contention that UNP members would face a real risk of torture, CIDTP, arbitrary loss of life or persecution based on their political opinion from UPFA members. This is particularly so as the UNP has become part of the ruling coalition with the UPFA since August 2015.
20. In conclusion, the Board found on the basis of the Applicant’s evidence that there was no real risk that he would face any of the proscribed forms of harm should he be returned to Sri Lanka. Likewise, the Board found that reasonable state protection is available; and that it would not be unduly harsh for him to relocate himself to other areas in Sri Lanka to avoid the risk. In view of the lapse of time any form of harm from Nalin is remote.
21. Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the four applicable grounds. Hence, it dismissed his appeal.
The legal principles applicable to judicial review
22. 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
23. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he said he was not satisfied with the Decision and repeated his fear of harm upon his return to Sri Lanka. He claimed that his enemies are still looking for him and harassing his family. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Sri Lanka. That is not permissible unless that finding involved errors of law, procedural unfairness or irrationality.
Conclusion
24. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible on the crucial issues and that the risk of harm he would face on his return to Sri Lanka was unreal or remote. On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk, if it turns out to be real. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
Dated 21st day of April 2023.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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 21/4/2023
Panagoda Liyanage Suranga Dulip 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 21/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7583/17/6/279/S154
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3387/16 (Formerly RBCZ 2000461/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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