Mallika Arachche Thushara Shanthi Kumara v. Torture Claims Appeal Board

HCAL 483/2017

[2018] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 483 of 2017

BETWEEN

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 (counsel for) the Applicant being absent / in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 45-year-old national of Sri Lanka who arrived in Hong Kong in about October 2004 and overstayed thereafter until he was arrested by the police on 29 January 2008.  After he was referred to the Immigration Department for investigation, he lodged his torture claim with the Department on 6 February 2008 on the basis that if he returned to Sri Lanka he would be harmed or killed by a group known as the Army Kaluwa said to be controlled by MY a member of the parliament in Matara District for his family’s previous support of a rival politician. He has since been released on recognizance pending determination of his claim. 

2.The applicant was born into a politically active family in Southern Province, Sri Lanka where his father and brothers at various times supported different political parties.  In about 1999 the applicant started working in his uncle’s business selling fruits and vegetables in the market where the Army Kaluwa was active.  In 2000 with the support of his uncle the applicant opened his own store selling vegetables but soon he and his family started receiving threats from the Army Kaluwa as his family and his uncle had supported the rival politician of MY.  Shortly thereafter another uncle of his was murdered by the Army Kaluwa for the same reason, and during an election in 2000 his home was bombed by the Army Kaluwa when his father and a brother were injured.  Due to the threats from the Army Kaluwa, his two brothers moved out of their village with one subsequently gone to Italy.  Yet the threats from the Army Kaluwa persisted when another uncle of his was murdered, and one day in July 2004 the Army Kaluwa bombed his store but the applicant was able to flee from his home district to take shelter at a relative’s home in Colombo where his parents have since moved, and in October of the same year when the applicant heard that the Army Kaluwa people were still looking for him, he departed Sri Lanka on 25 October 2004 for Hong Kong where he subsequently overstayed and lodged his torture claim upon his arrest by the police in 2008. 

3.On 8 February 2013 his torture claim was rejected by the Immigration Department under Part VIIC of the Immigration Ordinance, Cap 115, whilst his subsequent appeal to the Torture Claims Appeal Board (“the Board”) was refused due to late filing of his notice of appeal.  On 17 April 2013 the applicant submitted his non-refoulement claim with legal representation under the Duty Lawyer Service. 

4.By a Notice of Decision dated 7 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including 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”).

5.In his decision the Director found no reliable evidence other than the applicant’s bare assertions of the threats from the Army Kaluwa or their murders of his uncles, that there are no substantial grounds for believing his perceived fear of harm from MY or the Army Kaluwa as real or foreseeable even if true after all these years if he is to return to Sri Lanka, that in the absence of any evidence of any involvement of the government or police in those threats of the Army Kaluwa that state protection would be available to him if resorted to, and that 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 over a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the applicant to move to areas away from his home district such as Colombo where his parents have since his departure been living free of any disturbances from the Army Kaluwa. 

6.By a Notice of Further decision dated 6 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be 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”).

7.By then the applicant was already in the process of his appeal to the Board against the earlier decision of the Director of 7 June 2016, which appeal he filed on 20 June 2016, and for which he attended an oral hearing on 23 June 2017 before the Board during which he gave evidence and produced further supporting documents as well as answering questions put to him by the adjudicator for the Board.  On 14 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board was prepared to accept that the applicant and his family may have been affected by election violence in Sri Lanka in 2001 as evidenced by some of the documents provided by him as to their political activities in the past, but was unable to find any reference in reliable COI to any organization in Sri Lanka known as Army Kaluwa which in the absence of any independently verifiable information of its existence strongly undermines the credibility of his claim about such a group, and while it may be plausible that he left Sri Lanka in 2004 in part to avoid ongoing political turmoil at that time, by reason of his vague evidence and the issue as noted relating to the Army Kaluwa, it was not accepted as credible of his claims regarding he or any member of his family or property/business was harmed or threatened by the Army Kaluwa group, and the Board concluded that he has failed to establish his non-refoulement claim under any of the applicable grounds.   

9.On 4 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in his Form 86 nor in his supporting affirmation of the same date did he provide any grounds for his intended challenge other than repeating his claim as before that his life would be in danger if he is to return to Sri Lanka, as it has been held even high standard of fairness does not entitle a claimant to just make the claim and then sit back and require the Director or the Board, and in the present case the Court, to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 47.

10.Given the long lapse of time since the applicant left Sri Lanka and the fact that his parents are still living safely in Sri Lanka without any disturbances as found by both the Director and the Board, and the lack of any independently verifiable reference or information as to the Army Kaluwa group as well as the issue over his credibility after taking into account of all those documents provided by him, I am unable to think of any ground which he could have raised or relied on for his intended challenge under the circumstances.     

11.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.

12.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.

Dated the 4^th day of May 2018.

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