Nishanka Appuhamilage Thisara Gayan Kumara Nishanka v. Torture Claims Appeal Board

HCAL 1579/2020

[2021] HKCFI 3285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1579 of 2020

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Sri Lanka who entered Hong Kong illegally in November 2007 and was arrested by police on 12 December 2007 for robbery for which he was subsequently convicted and sentenced to prison, and upon his discharge and was referred to the Immigration Department for deportation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by some local gangsters over some monetary dispute, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Kandy, Kandy District, Sri Lanka.  After receiving 11 years of formal education, he ran his own trading business on electronic products to earn his living in his home district.

3.In end of 2006 he arranged some business meetings between two parties over a business deal, but after one of the parties had disappeared with the other party’s money, he was blamed by that other party over the loss who then sent some local gangsters to demand from him repayment of the money or else he would be killed, and so the Applicant fled from his home district to take shelter in a friend’s place in another town, and on 3 September 2007 he departed Sri Lanka for Singapore, Malaysia and then China, and from there he later sneaked into Hong Kong where he was subsequently arrested by police for robbery for which he was later convicted and sentenced to prison for 44 months, and upon his discharge from prison he then raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection by completing a Supplementary Claim Form (“SCF”) on 3 August 2016, and after several postponements for some reasons he eventually attended a screening interview before the Immigration Department with legal representation from Messrs. David Ravenscroft & Co.

4.By a Notice of Decision dated 21 February 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local gangsters upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that after so many years since his departure of the country that it is doubtful that there would still be any adverse interest in him, that it was in any event a private monetary dispute between two other parties without any official involvement that state or police protection would be available to the Applicant 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 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 working experience to move to other part of Sri Lanka away from his home district in large cities such as Colombo where it would be difficult if not impossible for the involved party or the gangsters to locate him

6.On 6 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and after several postponements he eventually attended two oral hearings on 4 June 2019 and 3 January 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 24 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found no reliable evidence from the Applicant in support of his claim of harm from those involved parties or gangsters to corroborate his bare assertions, that the credibility of which was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until much later after his arrest by the police and his subsequent various attempts to postpone and delay his screening interviews or hearings before both the Director and the Board with no good reasons, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Sri Lanka as well as reasonable internal relocation for him to move safely to other area without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 28 July 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, in which he just stated that the Board reached the decision wrongly in assessing his non-refoulement claim, and that the decision was not reasonable or fair as required by the Wednesbury test but without providing any details or particulars as to how it was so, nor did he put forth any other proper ground for his intended challenge.  As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

9.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage ChamindaPushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

10.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

11.Having considered 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.

12.Furthermore, the Applicant recently on 13 September 2021 wrote to the High Court to request to withdraw his leave application as he wants to return to his home country as soon as possible.

13.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his intention to withdraw his application so as to return to Sri Lanka, I accede to his request and accordingly dismiss his leave application.

Dated the 4^th day of November 2021.

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