Ambagahage Ajith Kumara v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1774/2018

[2020] HKCFI 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1774 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge K.W. Lung:    

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 21 March 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Immigration Department and adding the Board as the respondent and by adding the Director of Immigration (“the Director”) as the interested party.

The applicant

3.The applicant is a national of Sri Lanka. He came to Hong Kong as a visitor on 10 March 2005. He overstayed since 23 April 2005. He was arrested by police on 21 September 2008

4.He claimed that if refouled, he would be harmed or killed by (i) members of Liberation Tigers of Tamil Eelam (“LTTE”) and (ii) the Sri Lankan authorities due to his past involvement in selling army weapons to the LTTE and his desertion from the Sri Lankan Army.

5.The incidents leading to his leaving his country took place are set out below.

a.     He was working in the army in 2003. One day in 2003, when he was walking home, he was accosted by some people, whom he believed to be LTTE people. They knew that he was working in the army and they asked him to steal some weapons and sell to them. He knew that this was illegal and he did not do it for them.

b.     Four months later, these people came to his house, abducted his father and pushed him into a room. They blind folded him and took him to a jungle where they beat him up and threatened him to do what they had told him to do. He agreed and was released.

c.     He went back to the army and told other colleagues. They agreed as they were told that they would be paid. There were altogether 13 people.

d.     In June 2004, they stole from the army 25 to 30 weapons like AK47, grenades, GPMG ammo and magazines and sold them to the LTTE people.

e.     In February 2005, whilst he was on holiday, one of his colleagues told him that the Army had made investigation into the matter. One of them had pushed the responsibility to him and his group of people.

f.     He was afraid that he might be tortured, so he deserted the Army and moved to live in some other places. Finally, he came to Hong Kong.

g.     He had seen that the Army would torture those who had deserted the Army.

The Director’s Decisions

6.He had made a torture claim before and was rejected. The Director considered his application in relation to the following risks:

a.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 17 March 2016 and Notice of Further Decision dated 29 June 2017, collectively called the (“Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that there were no substantial grounds for believing that he would be in danger of being harmed as claimed [15]; state protection [22] and relocation [25] were available to him.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 19 January 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s evidence and was of the view that he is a fugitive, and as such, was not entitled to claim as a refugee under the refugee law [5], that there was no basis for him to assert a substantial fear of serious ill-treatment of severe injury or serious harm from the LTTE or the Army upon his return [10], and that there was no evidence that he would be subjected to BOR 2 risk [15].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 29 August 2018 for leave to apply for judicial review of the Board’s Decision. This is a late application, the deadline being on 21 June 2018. It is two months and eight days late.

12.In his affidavit in support of his application, the applicant did not set out any reasons.

DISCUSSION

13.As his application is late, this Court has to be satisfied that his application has a real chance of success, otherwise time should not be extended for him to proceed with this application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 at §27(3).

14.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. He was not satisfied with the Board’s Decision.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in the finding of the facts or in the application of the laws to his case.

17.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him extension of time to apply for leave to apply for the intended judicial review. Accordingly, I dismiss his application.

FRUTHER DIRECTIONS

19.It is further directed that:

a.     If the applicant intendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicantmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

Dated the 13^th day of May 2020

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