Subasinghe Manage Dushantha Kumara v. Torture Claims Appeal Board/ Non- Refoulement Claims Petition Office

HCAL 564/2017

[2019] HKCFI 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 564 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 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 last arrived in Hong Kong on 16 July 2013 with permission to remain as a visitor up to 30 July 2013, when he did not depart and instead overstayed until 13 August 2013 when he surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed, or killed, by his creditors for failing to repay his loans. He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Andugoda Gedara, Ballala, Weligama, Sri Lanka. After leaving school he worked in various jobs and in 2000 started his own business importing and selling computer parts and accessories.

3.In 2012 he borrowed various loans for his business from four creditors, three of whom were said to be body guards of a certain member of the parliament, with monthly interest payment at 10% of the principle loans.

4.In about 2013 he experienced serious financial problems and started to default with his monthly interest payments, and when pressed by his creditors, he pleaded for further time and was given three months to make his repayment. However by April 2013 when he was still unable to make any repayment, his creditors started to come to his home to demand for repayments with threats of violence against him.

5.One day in July 2013 the applicant was forcefully taken from his home by the creditors at gun point and taken to an unknown place where he was badly beaten by them with an iron bar on his left knee.  After some of them had left the scene leaving only one behind to guard him, the applicant was able to seize an opportunity to knock out his guard by hitting him on the head with the iron bar and made his escape from the place, and with the help of a friend he fled to Ja-ela and hid in his relative’s place where he received medical treatments, but when he was informed by his mother that his creditors had come looking for him in his home village, and fearing that he may be falsely charged by the police for hitting one of the creditors, he decided that it was no longer safe to remain in Sri Lanka and on 16 July 2013 departed for Hong Kong where he subsequently overstayed and lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 9 September 2016 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”).

7.In his decision the Director took into account all the circumstances of the applicant’s claim and assessed the risk of harm to him upon his return to Sri Lanka as low, that his problem with his creditors was a private monetary dispute with no evidence of any false charge being laid to the police against him, or of any official involvement in the dispute that state or police protection would be available to him 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 of 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 work experience to move safely to other areas away from his home district such as Colombo where it would be difficult if not impossible for his creditors to locate him.    

8.By a Notice of Further Decision dated 7 June 2017 the Director again rejected the applicant’s claim after considering his further written submission 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”).

9.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 23 September 2016, and for which he attended an oral hearing on 22 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 8 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board accepted the applicant’s account of events of his dispute with his creditors in his claim but found no evidence of him being pursued by the local police, that if he were indeed arrested and prosecuted over his loans there is no evidence that he would be at risk of ill-treatment or abuse of process amounting to persecution, that in the absence of any official involvement that state protection would be available to him, and that any risk of harm from his creditors can be avoided by him relocating to another place in Sri Lanka which would not be unduly harsh for him to do in the circumstances.

11.On 29 August 2017 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 the Form, and in his supporting affirmation of the same date he merely repeated his claim as follows:

“ I like to inform you that the petition team (security bureau) taken my decision was unsatisfactory for me in my USM case, because I have still life threaten for me from my enemy in my country if I go this moment my life become uncertain, and I need to remain in Hong Kong until settle my problem from my enemy. I will submit my supporting document in future. I submit Exhibit (1) one page.” [sic]

12.That one page of document exhibited to his affirmation is the earlier notice to him of the Board’s decision, and he did not request any oral hearing for his application.  Accordingly no hearing was held, and up to now he has not submitted any further document nor any ground for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them of which the court will not usurp their role as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

14.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Sri Lanka, they were entitled to come to their conclusion that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.In the premises and having proceeded to consider 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.

16.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 13^th day of February 2019.

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