MAHASATHU HEWAGE MACKSHI ROHAN SILVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1967/2019

[2024] HKCFI 3020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1967 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 21 October 2024.  I shall deal with his 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 50, is a national of Sri Lanka.  He last arrived in Hong Kong on 14 July 2003 to work as a foreign domestic helper (“FDH”).  His employment contract was prematurely terminated and he overstayed since 29 December 2004.  The applicant was arrested by the police on 1 February 2007 for overstaying and attempted misleading a police officer.  He was sentenced to imprisonment of 3 months for the said offences on 6 February 2007.  The applicant had made a torture claim, which was rejected on 8 March 2012 and his subsequent appeal was also dismissed on 30 March 2012.  The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 4 November 2013.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the followers of Mr Jeyarad Fernandopulle (“JF”).

5.  According to the applicant, JF was a minister and a member of People Alliance Party.  The applicant started to work as a bodyguard and a casual worker for JF in early 1990s, for which he would carry out whatever task was assigned to him, including illegal activities against JF’s opponent.  In 2002, the applicant came to Hong Kong for half a month as arranged by JF because there was a complaint lodged against him.  Upon his return to Sri Lanka, JF ordered the applicant to set fire to the houses of his political opponent from the United National Party.  As the applicant failed to comply JF’s order, he was abducted, assaulted and threatened.  Thereafter, he fled to his friend’s home for three months, during which he was informed that JF had sent his underlings to enquire his whereabouts and assaulted his family members.  To avoid JF, the applicant came to Hong Kong to work as a FDH in July 2003.

6.  Although the applicant subsequently learnt that JF was killed in around 2008/2009, he reckoned that JF’s wife and his henchmen would still take revenge against him because he had information detrimental to them.  The applicant had never reported the matter to the police because they were under the influence of JF.  He even claimed that the Sri Lankan president was a close friend and schoolmate of JF.  The applicant considered internal relocation not viable as well because there was a control system in Sri Lanka, so that he would be easily traced.

7.  Details of the applicant’s story can be found in paragraphs 9-49 of the Director’s Decision dated 27 August 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk.  The Director found that (i)  the action taken by JF and his followers indicated that they had no real intention to seriously harm or kill the applicant [62]; (ii)  there was no evidence showing that JF was as influential as he claimed [63]-[64]; (iii)  there was nothing to indicate that the applicant was targeted by the Sri Lankan government [65]; (iv)  the claimed risk of harm should have dissipated given the elapse of time [66]; (v)  the applicant’s delay in seeking protection was inconsistent with the behaviour of someone genuinely in fear [67]-[68]; (vi)  state protection would be available [69]-[86] and (vii)  internal relocation would be viable [87]-[93].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 3 June 2019, the Board conducted an oral hearing.  

11.  The Board noted there was a significant delay on the applicant’s part in seeking non-refoulement protection, which he failed to justify [22]-[23].  Regarding the applicant’s claims, he gave inconsistent evidence as to whether he carried out JF’s order by burning down houses and included some wrongdoings during the hearing that had never mentioned before.  He also gave a different reason as to why he came to Hong Kong and was unable to explain why he returned to Sri Lanka in 2002 [29]. 

12.  The Board did not find the applicant to be telling the truth given that his case was both vague and unbelievable.  There was no objective support that he worked for JF and was engaged in illegal activities, so that his claimed threat by JF’s henchmen was not accepted [35].  In any event, his claimed injury failed to reach the requisite level of severity and there was no basis indicating that JF was as influential as he claimed [39].  There was further no evidence to show that the Sri Lankan authorities was involved in the matter and it was not accepted that state protection would be unavailable [41].

13.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk[3]-[10], [42]-[52].  Furthermore, internal relocation would also be available [34], [55]. 

14.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

15.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

16.  The applicant has raised no specific reasons to challenge the Board’s Decision.

DISCUSSION

17.  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).

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

19.  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.”

20.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

21.  There is no reason that the Court should interfere with the Board’s finding of the facts.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

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