RAMANATHAN ARUNAGIRINATHAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 885/2017

[2018] HKCFI 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 885 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 44-year-old national of Sri Lanka who entered Hong Kong illegally on 10 November 2007 and was arrested by the police on 3 December 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 21 December 2010 on the basis that if he returned to Sri Lanka he would be harmed or killed by the paramilitary group Tamil Eelam Liberation Organization (“TELO”).  He has since been released on recognizance pending the determination of his claim. 

2.  The applicant was born and raised in Colombo, Sri Lanka to a Tamil family where his wife and two daughters now live in Wattala, Western Province of Sri Lanka.  After leaving school he worked as a shop assistant when in 1994 he was abducted by men whom he believed to be from TELO for nine months during which he was tortured into making a confession of having assisted the Liberation Tigers of Tamil Eelam (“LTTE”), and for which he was subsequently prosecuted in the High Court of Colombo and was given a fine of 1,000 rupees in 1995.

3.  Upon his release the applicant returned home and started working as a taxi driver and subsequently married his wife and formed a family in Colombo.  One day in 2000 two men boarded his taxi, and upon driving them to their destination, they pulled him out of his taxi and accused him of having helped the LTTE and threatened him to kill him if he were to help them again.

4.  After the incident the applicant became fearful for his life and decided to move away from Colombo to various places in Wattala and Nugegoda without further incidents, but when the leader of the United People’s Freedom Alliance won the election and became the Prime Minister in April 2004 and as he was known to discriminate against the Tamil people, the applicant felt unsafe to remain in Sri Lanka and decided to leave the country in 2007 when he departed on 5 November 2007 for China via Malaysia, and from Guangzhou he sneaked into Hong Kong on 10 November 2007 where he eventually lodged his torture claim and later a non-refoulement claim by completing a Non-refoulement Claim Form on 29 April 2015 with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 12 August 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

6.  In his decision the Director found the level of risk of harm from the members of TELO to be low as after all these years it is doubtful that they would still have any adverse interest in the applicant, that the armed conflicts of Sri Lankan government against Tamil Tiger rebels ended more than five years ago and that the government policies have changed that even Tamils are recruited to join the army, that any threats from the boyfriend of his wife whom she came to form a relationship after the applicant’s departure is a private domestic dispute from which the applicant can seek protection from the police, and that 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 experiences to safely move to other areas away from his home district such as Wattala or Nugegoda where he had stayed before without any incidents, or Kirulapane where his mother currently lives.

7.  By a Notice of Further Decision dated 3 August 2017 the Director again rejected the applicant’s claim after receiving and considering further documents submitted by him 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”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 24 August 2015, and for which he attended two oral hearings on 13 September 2016 and 15 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the applicant to have given inconsistent and conflicting evidence in relation to his account of past events, that his assertions of the second incident in 2000 as inherently incredible, that the authenticity of certain “official” documents produced by him relating to the charge against him in the High Court in Colombo is questionable whilst the other documents are inconsistent with his evidence, and concluded that the applicant has failed to establish that there are substantial grounds for believing that he would be subjected to any real risk of harms if refouled to Sri Lanka.    

10.  On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he did not put forward any grounds for his intended challenge other than just repeating his claim as follows:

“ I need to explain my situation in this my ground that I have life threaten by unauthorized arm group and police department too, once they detain me in police more than one year, and I met many tortured by police too, if I go to my country my life become uncertain and can lose my life too. Therefore I like to remain in Hong Kong until become settle my problem. I attach exhibit (1) but I can submit my many proof document when my case hearing. I need time to obtain all as soon as possible.”

11.  The attached exhibit (1) is the letter from the Board to the applicant enclosing its decision of which the applicant now seeks to review, and that there has been no further documentary proof or representation submitted by him in support of his application notwithstanding what he asserted in his affirmation save for a document received from him on 13 March 2018 entitled Order Under Section 9(1) of Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 issued by the President and Minister of Defense of Sri Lanka on 14 January 1994 which ordered that the Applicant be detained for three months for being suspected to be a member of LTTE, which in my judgment does not serve to advance his claim any further for the findings and reasons given by the Director in his decision and as set out in paragraph 6 above.

12.  As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.  

13.  Here the applicant did not even say that the Director or the adjudicator had erred in their decision, and having considered their decisions 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.

14.  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