Ponnamperuma Arachchige Don Suranga Lankapriya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL678/2017

[2018] HKCFI 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 678 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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 11 June 2005, from Sri Lanka and was allowed to remain as a visitor until 11 July 2005.  He did not leave and overstayed from 12 July 2005.  He was arrested by the police on 3 January 2008, and was transferred to the Immigration Department on 5 January 2008.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 8 January 2008.  He was released upon recognisance on 28 January 2008.  His NRF claim form was submitted on 30 December 2013 and was supplemented on 15 September 2014.

2.The Applicant attended a screening interview on 6 January 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR2) by Notice of Decision (“the Decision”) on 30 July 2015, and by Notice of Further Decision (re BOR 2) on 13 July 2017, having made further submissions on 31 May 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 13 August 2015.  The Adjudicator of the TCAB, Mr Ian Candy, heard him on 15 August 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 21 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 26 September 2017, and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Sri Lankan national.  He was born and brought up in Ragama, Sri Lanka.  He achieved GCE level education and since leaving school in 1996 has worked for his father in his shop, as a casual worker and latterly as an air conditioning worker in Doha from 2002 to 2005.

5.The Applicant’s family were connected with the United National Party (“UNP”) in Sri Lanka.  In 1997, his father stood for election as a local official and the Applicant supported his campaign.  During that period there was a clash between supporters of the opposition party and his family outside the family home, which did not result in any injury.  The Applicant was not directly involved.  A report of the incident was made by his father to the local police but no follow up action was taken.  This could be because his father declined to identify the people involved despite a request from the police to do so.  None of the events mentioned in respect of this election campaign identified any threats to the Applicant himself.

6.By the time of the 2001 election, the Applicant maintains that he was a staunch supporter of the UNP and well known for his political affiliation.  Whilst distributing posters with several other members of the UNP, the Applicant said they encountered several members, of what he assumed were the opposition party, armed with clubs who tore down the UNP posters.  A fight ensued in which the Applicant admits that his group of friends was also armed with weapons.  A member of the opposing group suffered a fractured arm as a result.  A couple of days after the incident, the Applicant’s mother received a phone call from an unknown person who threatened the Applicant.  He therefore fled to Welisara, which is approximately one hour from his home town, and he remained there for five to six months having found part time work with an engineering company.  In the interim, the UNP won the national election.  Whilst in Welisara, the Applicant was approached by four to five people who attacked him.  He suffered bruising as a result and did not seek professional medical attention as his injuries were minor.  The Applicant assumed his assailants were from the opposition party and that the assault had to do with the earlier incident in which someone’s arm had been fractured.  As a result of the attack, the Applicant went to Ela-Kanda and remained there for six months.  During that period, the Applicant did not work. He remained there without incident until he left to work in Doha between 2002 and 2005.  He returned home after his contract of employment ended in 2005.  After about a week, a group of people went to the Applicant’s home and spoke with his mother in an effort to find the Applicant, who was not at home at the time.  That group intimidated his mother, broke into the house and ransacked it, in their effort to find the Applicant.  Whilst they acted in a threatening manner, no actual threats were made against the life of the Applicant but nevertheless, he did not return home and remained away for approximately six weeks.

7.It was the Applicant’s father who arranged to send the Applicant to Hong Kong because he understood that the Applicant could enter Hong Kong without a visa.  He made a refugee claim upon arrival and used his asylum seeker certificate if stopped and questioned.  He was eventually arrested in January 2008 and it was at that time that he made an NRF claim.  Since arriving in Hong Kong, he has married a Filipina domestic helper and has a child from that marriage.

The non-refoulement claim

8.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under “persecution risk”, the Applicants must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicants must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victims of genocide or otherwise be deprived of his rights under BOR 2.

9.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim. The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

10.The Director analysed the Applicant’s claim on all applicable grounds as outlined above including supplementary material submitted for the claim under BOR 2.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Sri Lanka at present.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.

Decision of the Adjudicator

11.The Adjudicator, Mr Ian Candy, analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Applicant submitted a lengthy written submission and large bundle of supporting documents all of which were considered by Mr Candy.

12.The Adjudicator noted that the COI had indicated friction between political parties but the current situation was that the government was a coalition which included the UNP.  Accordingly, he did not find there was a real chance that the Applicant would face any form of ill-treatment if he were to return home.

Leave to apply for judicial review

13.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

14.There were no grounds of review as such.  The Applicant stated in his affirmation dated 26 September 2017, that he had not been given enough time to explain his problem.  The Applicant has had 13 years to explain his problem and has submitted voluminous documents in support of his case, not all of which were accepted as credible.  The Applicant has not made out any procedural irregularity, unfairness or unreasonableness.  I have, nevertheless, considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15.I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

16.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 15^th day of June 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