Kolambage Prathbhath Purnaka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1666/2018

[2020] HKCFI 1102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1666 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.This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant was absent on 6 June 2019 and his application was dismissed for want of prosecution. On 6 August 2019, he took out a summons for appeal against the dismissal order out of time. The hearing was fixed to be heard on 10 October 2019.

3.At the hearing, the applicant produced an application to the Legal Aid Department for legal aid and applied for adjournment of the hearing. The application was dated 5 September 2019. He admitted that it was late for over one year as the date of the Board’s Decision was 27 July 2018. His explanation was that he was ignorant of this service.

4.The Court refused his application for the adjournment because it was a long delay and his explanation was not satisfactory. Besides, the issues in question are not complicated. To adjourn the matter would further delay the matter and would affect the listing of other cases.

5.The hearing proceeded accordingly.

6.The application explained that he did not receive the Hearing Notice for 6 June 2019 hearing. This Court accepted his reason and set aside its ex parte order and proceeded to hear his application for leave for judicial review.

7.Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as proposed respondent and replacing him with the Board.

The applicant

8.The applicant is a Sri Lankan national. He came to Hong Kong through Shenzhen on 26 October 2003 as a visitor and was permitted to stay until 25 November 2003. He overstayed and was arrested by police on 13 June 2006. He was charged and convicted of a number of offences and was sentenced to two months’ imprisonment. On 16 August 2006, he raised a non-refoulement claim.  

9.He claimed that if refouled, he would be harmed or killed by the underworld gangsters with political background.

10.The incidents leading to his departure from his own country took place between mid-1999 to October 2003 as set out below.

(1)     He befriended with Mr. S (“S”) who was an organizer for a deputy of the United National Party (UNP), a rival party to the People’s Alliance Party (PA). The incumbent President belonged to PA and she wanted to seek a second term. She won the election in December 1999.

(2)     The President dissolved the parliament and set new parliamentary election in December 2001.

(3)     In November 2001 S told him that Mr K (“K”) belonged to PA and he caused troubles to UNP. K had connections with the underworld.

(4)     S instructed him and his two other friends to assault K. They acted accordingly. They were armed with weapons of pistol, metal rods, wooden clubs, cricket bats and homemade knives. They drove a van to a location outside a temple. They saw K. His other friends attacked K with knives and steel rods. He was holding a pistol standing by. He saw K was covered with blood, lying on the ground. They thought K was dead and they fled.

(5)     However, it was discovered later that K was still alive and he was looking for the assailants.

(6)     In mid-2002, his younger brother was abducted and tortured for his whereabouts. He moved to live in another town.

(7)     He and his two friends attended a Christmas party. Thereafter, they were attacked by 6 men armed with wooden poles. They came by a van. One of his friends was abducted whilst he and his other friend managed to escape. Two days later, the abducted friend’s body was found on the roadside.

(8)     In June 2003, another friend was also abducted and killed. S told him that they were killed by K’s men and that the killing was sanctioned by PA.

(9)     He considered that the Sri Lankan government had his information and he changed his mobile phone. He moved to live with his relatives in his father’s ancestral village.

(10)     He departed Sri Lanka on 25 October 2003 through the assistance of an agent. He arrived at China and then came to Hong Kong.

(11)     In 2006, his brother told him that S was killed by PA in a bomb attack in Colombo.

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

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b.     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”);

c.     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

d.     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”).

12.By Notice of Decision dated 5 July 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm from K and his group was low [25] and state protection was available [26 & 27].

The Board’s Decision

13.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 22 and 23 January 2018 respectively. The parties were legally represented at the hearing.

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

15.The Board considered the applicant’s evidence and, for the reasons stated in paragraphs 69-122 of the Board’s Decision, was of the view that whilst it accepted the core of the applicant’s claim, it considered that he had exaggerated other parts of his claims with a view to strengthening his application for non-refoulement protection [123]. It concluded that there was only a remote or speculative risk, not a real risk that he would face prosecution or in turn a conviction for the attack on K [137].

Application for leave to apply for judicial review

16.The applicant filed Form 86 on 17 August 2018 for leave to apply for judicial review of the Board’s Decision.

17.The applicant relied upon the grounds in support of his application below.

(1)     The Adjudicator had misdirected himself as to the conclusions he had arrived at, especially relating to the incident with K. The Adjudicator was not entitled to reach the decision that it was not credible that K was attacked in the manner he had described in the evidence. Under this heading, there are other issues:

i.    That he was not aware of K’s political stance should not undermine his credibility.

ii.   The evidence of the attack on K only came from him, the Adjudicator should not disbelieve his evidence.

(2)     The Adjudicator was speculative in evaluating the evidence. Below are the reasons.

i.    The speculation that the killing would not be in a public place had not taken into account that he was only a young man without much wisdom.

ii.   The Adjudicator was speculative when he considered the killing should not be in public place and that k was a gangster.

iii.  The Adjudicator was speculative to say that he had a gun but did not use it.

DISCUSSION

18.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and the Board. In any event, he was legally represented.

19.Grounds (1) and (2) relate to the handling of the evidence by the Adjudicator. The applicant considered that if the Adjudicator might take a different view or interpretation of the situation of the background facts, he should adopt the scenario which favoured his claim. Having considered the parts as referred to by the applicant, it seems quite clear that the Adjudicator had given his reasons why he came to those conclusions on the facts of the case. The fact that only the applicant had given evidence does not mean that the Adjudicator had no alternative but to believe his evidence. The Adjudicator had to apply his reasoning and common sense appropriate to the factual situations to the evidence and came to his own conclusion as to whether he believed the applicant’s evidence.

20.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.”

21.The Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) at §42held 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 the application of the laws to the case.

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

CONCLUSION

23.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 9^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

Form CALL-1