Narasinghe Mudiyanselage Kushan Priyankara Narasinghe v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1652/2018

[2020] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1652 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 30 August 2019.

2.Leave was given to the applicant to amend the name of the respondent to the Torture Claims Appeal Board/Non Refoulement Claims Petition Office (“the Board”)

The applicant

3.The applicant is a national of Sri Lankan. He had come to Hong Kong illegally and was removed to Sri Lanka in 2005. On 24 June 2009, he surrendered to the Immigration Department and lodged the torture claim. He admitted that he had sneaked into Hong Kong through China on 29 October 2005.

4.In support of his claim, he said that if refouled, he would be harmed or killed by the illegal alcohol manufacturers (“his enemies”) as he founded a youth organization against them in Sri Lanka.

5.In 2002, the enemies came to their meeting and disturbed the meeting. He was not hurt. In 2003, in a bus on the way home, he was slapped on the face by the people of his enemies. In 2004, he was the president of the organization and they had a meeting. A group of 8 people of his enemies came to disrupt the meeting. They attacked the members in the meeting. He had bruises all over his body. In June, his father was ambushed by 2 or 3 men of his enemies. In September, a few men of his enemies came to his home to threaten to kill him. In 2005, he came to Hong Kong but was repatriated. In Sri Lanka, he found that the problem of his enemies were still continuing. He moved around to other places in order to avoid them. Finally, he came to Hong Kong illegally again.

The Director’s Decisions

6.The Director first considered his application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture 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 16 July 2015, the Director refused his claim for the reason that his claim was not substantiated.

8.By letter dated 14 July 2017, the Director asked the applicant to supply further information in relation to BOR 2 risk – right to life, which would be assessed separately as well. The applicant did not provide the Director with any additional information.

9.By Notice of Further Decision dated 4 August 2017, the Director rejected his BOR 2 risk claim as well.

10.The Director’s Decision and Further Decision are collectively called (“the Director’s Decisions”).

The Board’s Decision

11.The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 14 May 2018.

12.By Decision dated 26 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

13.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the conclusions below:

a.     On the evidence, the applicant failed to establish that there was a real risk that he might have the risks as claimed if he returned to Sri Lanka.

b.     The Board did not believe that he came to Hong Kong for protection because he did not raise a torture claim protection to police or the Immigration Department as soon as he arrived in Hong Kong. Nor did he raise this issue in three years and eight months after he arrived in Hong Kong. He admitted in the questionnaire that he told the police in Hong Kong in an interview that he came to Hong Kong for a job.

c.     Internal relocation was an option open to him [17].

Application for leave to apply for judicial review

14.He filed Form 86 dated 16 August 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation, he said that the Adjudicator did not pay much attention to the documents that he had produced to him.

DISCUSSION

16.The applicant appeared before me. He confirmed that he was able to give evidence freely before the immigration officer. He said that the Adjudicator seemed not paying attention to his documents and said that he did not believe his evidence. He said that the Adjudicator had not thought through his case.

17.Although the Board said that his evidence was incredible in paragraph 30 of the Board’s Decision, it is quite obvious that it referred to the evidence that he was exposed to the risks he claimed. In fact, the Board relied upon his evidence on the facts to say that the facts did not fulfil the conditions provided under the statutory provisions and the Convention. The applicant did not identify what documents he was referring to. From the evidence, it seems that the Board did not require any further documents for its assessment of the facts.

18.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board was in error in coming to its conclusion.

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

CONCLUSION

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

Dated the 5^th day of June 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

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