Iyadurai Chandramohan v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2890/2018

[2020] HKCFI 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2890 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 16 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. This is the Board’s second Decision on BOR 2 risk; the first Decision is dated 9 March 2017 on the Torture risk, the BOR 3 risk and the Persecution risk. See paragraph 7 below. I shall call them (“the Board’s Further Decision” and “the Board’s Decision”) respectively. Therefore, the applicant’s application is for leave to apply for judicial review of the Board’s Further Decision.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Sri Lankan national. He came to Hong Kong on 17 July 2003 as visitor and had overstayed since 17 August 2003. He then was arrested by police. He lodged his non-refoulement claim on 29 March 2010. 

5.He claimed that if refouled, he would be arrested and tortured by the Criminal Investigation Department (“CID”) of the Sri Lankan police because they suspected him to be connected with the Liberation Tigers of Tamil Eelam (“LTTE”) due to his race and also because he failed to report to CID in 2003. He also feared that he would not be able to practice Hinduism freely because he heard from the media in Hong Kong two years ago that the Hindus and Muslims were targeted and persecuted by the Sinhalese Buddhists in Sri Lanka.

6.There were killings between the LTTE and the Sri Lanka Arm (“SLA”) in 2002. He protested against SLA for killing the Tamils. He was beaten up by SLA and was taken to police station and was charged with an offence, which he had no clear idea. He had to move around other places to avoid police. His stories are contained in paragraph 6 of the Director’s Decision.

The Director’s Decisions

7.The Director 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. 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”).

8.By Notice of Decision dated 2 February 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the CID and the Sinhalese Buddhists if he returned to his country was low because the past events showed that the risk of the authorities being after him was low; that the CID would prosecute him was only speculation without any evidence in support of it; that there was no evidence to show that he was unable to practice Hinduism freely [15-27].

9.By Notice of Further Decision (“the Director’s Further Decision”), the Director rejected his BOR 2 risk because he failed to establish by evidence such risk to which he was subjected.

The Board’s Decisions

10.The applicant appealed to the Board against the Director’s Decisions. He attended the hearing before the Board.

11.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out in paragraphs 31- 67 of the Board’s Decision, with the summaries below.

(1) It did not accept his evidence in relation to the incidents in 2002 [40].

(2) It did not believe that he was targeted by the Sri Lankan government for ill-treatment or torture [53].

(3) There was no evidence that he was under a warrant of arrest [56].

(4) There was no circumstantial evidence in support of the fact that he would be subjected to ill-treatment of torture in Sri Lankan for his Tamil ethnicity [62].

(5) There was no evidence that he would be persecuted for being a Hindu [63].

(6) The Board did not accept that the applicant would be at risk of personal harm or torture if he returned to Sri Lanka [67].

12.The applicant also appealed to the Board against the Director’s Further Decision. He had attended before the Board for his appeal.

13.By the Board’s Further Decision, the Board had taken into consideration the evidence in the Board’s Decision. It rejected his appeal and confirmed the Director’s Further Decision because he failed to establish by evidence that he was subjected to BOR 2 risk.

Application for leave to apply for judicial review

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

15.In his affirmation in support of his application, he repeated his fear of the risks and that he considered that the Board had not considered his dangerous situations. He also said that he would obtain the documents to prove his case.

DISCUSSION

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraphs 11-13 above.

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

“13.… …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.”

18.It is obvious that the Board had considered his evidence for the Board’s Decision and it had also considered his evidence at the hearing for its Further Decision. I do not think that any further document will assist his application. He did not say what those documents are for.

19.The Court does not find any error of law or procedural unfairness in the Board’s Further Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

21.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 27^th day of July 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