MIRISSAGE ROHAN SANJEEWA PRIYANTHI FERNANDO v. TORTURE CLAIMS APPEAL BOARD

HCAL 131/2019

[2022] HKCFI 109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 131 of 2019

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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Sri Lanka who arrived in Hong Kong on 13 August 2005 as a visitor with permission to remain up to 12 September 2005 when he did not depart and instead overstayed in Hong Kong, and on 27 October 2006 he was arrested by police for using another person’s identity card and for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 15 months, and after his discharge from prison and was referred to the Immigration Department for deportation, he then raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the political party United National Party (“UNP”) for spying on their party for their rival People’s Alliance (“PA”) and/or by the police or other organizations for being suspected to have provided information and assistance to the terrorist group Liberation of Tamil Tigers Eelam (“LTTE”), 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 Polonnaruwa, Sri Lanka.  After leaving school he worked in various jobs including farmer, diver, mason and general labourer in Chilaw, and followed his parents’ tradition to support the political party PA in which one of his paternal relatives SN was the provincial councilor in Puttalam District. 

3.  In 2001 SN sent the Applicant to spy on UNP by pretending to join their party to obtain inside information for PA, but one day in 2003 while he was in Chilaw, the Applicant was warned by an unknown man to stop spying for SN or else he would be killed, and sometime later in the same year, he was approached by two unknown men who again threatened to kill him if he continued to spy for SN. 

4.  Fearing for his life the Applicant therefore fled to Minneriya, but in December 2003 when he returned to his home district to spend Christmas with his family, he was attacked by a neighbor who was a UNP member with a knife that he suffered injury in his chest which required medical treatments in a clinic, and thereafter he returned to Minneriya. 

5.  One day in May 2004 the Applicant was again attacked by some unknown men with a warning not to spy for SN, and so he fled to Akkaraipattu in June 2004, but one day in July 2004 while he was working, some LTTE members approached him for information about PA and UNP, and when he refused, they threatened him and took away his work tools and equipment.

6.  On another occasion in April 2005, while he was visiting a friend in Dematapitiya, Katuneriya, the Applicant was seized by some masked men who brought him to a hut where he was beaten for spying for SN, and was warned that he would be killed if he continued to do so before he was eventually released.

7.  After the last incident, the Applicant decided that it was no longer safe to remain in Sri Lanka, and so on 13 August 2005 he departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police more than one year later, he then raised his torture claim, and after it was rejected he sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

8.  By a Notice of Decision dated 6 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found significant inconsistencies and discrepancies in his evidence as to his alleged fear of harm from various perceived enemies that his credibility was doubted which was further undermined by his failure to raise his claim at the earliest opportunity of his arrival in Hong Kong until more than one year later and only after his arrest by the police for criminal offences, that in any event the level of his alleged risk of harm from his perceived enemies upon his return to Sri Lanka even if true is assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that those attacks on him by unknown men were sent by UNP or that even if they were that there is no real intention to seriously harm or kill him despite having had so many opportunities to do so, nor is there any reliable evidence that he had ever been targeted by the LTTE people or the police arising from one single encounter years ago, that in any event after all these years that it is doubtful that any of these perceived enemies would still have any adverse interest in him, that in the absence of any official involvement that state or police protection would be available to the Applicant 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 22 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 his perceived enemies to locate him.

10.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 26 June 2018 together 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 with submissions made on his behalf by his lawyer to the Board.  On 19 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his claimed fear of harm from UNP people for spying on them for PA that it doubted the credibility of his claim which is further undermined by his failure to raise his claim at the earliest opportunity of his arrival in Hong Kong until more than one year later after his arrest by the police, that in any event after all these years since he ceased any political involvement or activities upon his departure of the country that it is doubtful that there would still be any adverse interest of UNP or LTTE or the police or any other groups or organizations in him, and that the relevant COI show that the political landscape in Sri Lanka has since also changed significantly with a member of PA (now known as UPFA) elected as the new president governing in coalition with UNP that there is simply no evidence or basis to suggest that any past association of the Applicant with SN or UPFA would put him at any risk of any of the proscribed forms of harm from anyone upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.

12.  On 14 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just stated that he cannot accept the decision due to the risks as stated in his claim as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge. 

13.  As has been repeated 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. 

14.  In the Applicant’s case, the Board rejected his claim essentially on its correct findings on the credibility of his bare assertions of fear of harm arose from some political activities unsubstantiated by any reliable or acceptable evidence that even if true would have dissipated over the lengthy passage of time as well as the significant change of the political landscape in Sri Lanka for the thorough and detailed analysis and reasoning set out in paragraphs 43 – 67 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.   

15.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.      

16.  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. 

17.  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