Athalage Prasad Susantha Perera v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 493/2019

[2021] HKCFI 3852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 493 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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 21 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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.

The applicant

3.The applicant is a citizen of Sri Lanka. He came to Hong Kong illegally and was arrested by police on 3 August 2008. He lodged torture claim under the Convention, which was then changed to a non-refoulement claim under the unified screening mechanism on 3 March 2014.

4.He claimed that if refouled, he would be harmed or killed by Ajith Aiya and Lal because they thought that he had leaked their information regarding their involvement in a murder case, which led to retaliation against them by the family of the victims of the murder.  They planted a bomb in court when the murderers were on trial.  As a result, some of them were killed and some injured.  The murderers thought that he had leaked the information to the victims’ family.  They threatened to kill him. He had to move and lived in different places.  He took advice of a friend to leave his country.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

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

a.  risk of torture under Part VII C 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”).

6.By Notice of Decision dated 19 August 2016 (“the Director’s Decision”) and Notice of Further Decision dated 12 July 2017 (the “Director’s Further Decision”), the Director refused his claim for the reasons that the level of risk that him being harmed or killed by his enemies if he returned to Pakistan was assessed to be low [13]; that reasonable state protection would be available to him [16] and that internal relocation was an option open to him. In the Director’s Further Decision, the Director found that he was unable to establish, by evidence, there was a real risk of his right under BOR 2, which would be violated if he returned to Sri Lanka [6].

The Board’s Decision

7.The applicant appealed against the Director’s Decision.  He was legally represented before the Board on 22 August 2018 and 3 October 2018.  There had been extensive examination of his evidence by the adjudicator of the Board.

8.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board found that on the whole, the applicant was not telling the truth. His evidence on Ajith and Lal, his enemies, and their threats was vague and unbelievable.  The Board also rejected his evidence of threats by his enemies and the alleged retaliation [37].

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, he said that the Board was in breach of procedural fairness because (1) he had unlawfully fettered his discretion by refusing his appeal; (2) the adjudicator acted in an unfair manner; (3) the Board’s Decision was unreasonable or irrational and (4) the Board did not meet the greater care and duty owed to a self-represented claimant.  He also complained that the hearing bundle was given to him 6 days before the appeal hearing, with intervening weekend.  He did not have sufficient time to prepare for the appeal hearing as the documents were in English and he was unrepresented.  He was confused at the hearing.  The adjudicator relied upon hearsay evidence and outdated cases and his decision was speculative.

DISCUSSION

11.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision.  The Court will not usurp his fact finding power.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.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.”

14.His grounds in support of this application do not assist his application.  He has raised irrelevant grounds in support of his case.  First of all, he was wrong to say that he was legally unrepresented.  From the Board’s Decision, he was legally represented by a duty lawyer.  His lawyer did not complain to the Board that he did not have sufficient time to prepare his case because of late delivery of the hearing bundle.  His lawyer should have submitted the appropriate material or cases in support of his appeal.  His other grounds are simply his opinions or comments without evidence in support of them.

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

16.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 24^th day of December 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