Fernando Indunil v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 937/2020

[2022] HKCFI 103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 937 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 the Applicant in open court;

Order by Deputy High Court Judge P. Li:

1.   Extension of time for application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant was from Sri Lanka. He was arrested by the police on 8/4/2008 for illegally remaining in Hong Kong. He claimed to the Immigration Department that he had sneaked into Hong Kong on 3/4/2008. He filed a torture claim on 18/4/2008. It was rejected by the Director on 26/8/2011.  He filed the present non-refoulement claim on 21/1/2014.

2.His claim was rejected by the Director on 6/7/2015 [1]. His appeal was dismissed by the TCAB on 24/5/2018.

3.He filed the leave application for judicial review on 19/5/2020.  He was nearly 21 months out of time.

Background

4.The applicant was born on 18 July 1980 in Borella, Colombo West, Sri Lanka.  He had education for 10 years.  He operated a shop for providing telecommunication services for 7 years (2000-2007). He was married with a daughter. He is a Catholic.

5.There were gangsters extorting money from his shop. They were connected with politicians in Colombo City. Since January 2007, he paid reluctantly.  In June 2007, he was assaulted for failing to pay. He was stabbed at the head and cut at his left thigh.  He had 3 stitches on his head. He was not hospitalized.  He recovered in 3 weeks.  He reported to the police.  He did not follow up. He closed down his shop after this incident.

6.The gangsters continued to harass him at his home.  He was concerned and moved to stay with a friend in Matale for 4 months until he left Sri Lanka.

7.While in Matale, the gangsters phone him threatening to kill if he did not pay.  He finally agreed to deposit money into their accounts.  He made 8 deposits between June to September 2007.  It was over 680,000 rupees in total.  He thought others were also extorted.

8.He left Sri Lanka on 1/11/2007 for Malaysia as the agent arranged.[2]  He then went to Shenzhen for about 4 months.  He came to Hong Kong on 3/4/2008.  He did not apply for protection in Hong Kong immediately as he had no problem in Hong Kong.  He did not apply in China as it was not the plan of the agent.

9.He last contacted his wife in the end of 2016. His wife told him the problem with gangsters still continued despite she had moved to Wattala.  However, she was safe there.  His mother told him that some unknown people had come and asked about him.

10.He did not think the police would protect him as they had connections with those gangsters.  He did not know any complaint channel which could assist him.  He had no means to relocate.  The gangsters would be able to locate him.

The Decision of the Director

11.The Director found that the risk of harm was low.  The reasons were as follows:

i.  The applicant was assaulted once by the gangsters in the whole period before he left Sri Lanka.  He needed stitches for his wounds and was not hospitalized.  The injuries were not serious. The future risk of harm was low.

ii.  The applicant was threatened and attacked by the gangsters.  He sustained some injuries but there was no intention to kill him.  The gangsters only wanted to extort money.  There was no reason to harm him seriously or to kill him.

iii.  His whole family moved to Matale.  He was safe there for 4 months.  There was no evidence that the gangster had step up their action against him.  There was no imminent need to leave the country.

iv.  The gangsters extorted money from many shops in the vicinity.  He was not the only target.  Ten years had elapsed, the gangsters’ hostility/interest in him must have dissipated.  There was no real risk of harm in future.

v.  He chose not to follow up the report with the police. The was no evidence that the police had connections with the gangsters. There was no government or public official involved.

vi.  He only filed a claim after he was arrested by the police. Though it was a delay for about 2 weeks, this was inconsistent with his assertion that he was under imminent life threat.

vii.     There were problems of corruption, insufficient training and human rights abuses in the police. There was ethnic dispute. However, there were reforms to improve police competence. The Human Rights Commission and National Police Commissions were established to tackle police misconduct and human rights violations. Complaint channels were established to take public complaints readily. The government had taken steps against officials involved in human rights abuses. A fair and proper judicial system was in place in Sri Lanka.

viii.   The law allowed internal relocation in Sri Lanka.  There were relocation options such as Colombo and Matale.  The applicant was safe while staying in Matale. Given that Sri Lanka was a large country with a large population of 22 million, it would be difficult for the gangsters to locate him. It would not be unduly harsh for him to relocate.

12.Given the above, the Director dismissed his claim on BOR 2, BOR 3 and persecution grounds on 6/7/2017.

The Decision of TCAB

13.The applicant failed to attend a TCAB hearing on 29/1/2018. The adjudicator had considered the following circumstances before deciding to conduct the appeal on paper:

a.  The notice of hearing was sent to the same address as in the Notice of Appeal well within time on 1/11/2017.

b.  On 29/1/2018, the adjudicator sent a letter requesting the applicant to explain his absence within 7 days. The applicant was warned that the appeal might be determined on paper.

c.  There was no response to the letter.  

14.The adjudicator nevertheless considered the information in the hearing bundle. The adjudicator rejected the appeal on 24/5/2018 on the following grounds:

a.  The applicant said in some written statements that he stayed in Wattala before leaving Sri Lanka. He also said he stayed in Matale before leaving the country in other written statements such as the NCF. The two places were quite far apart. It was a serious inconsistency.

b.  The applicant was inconsistent as to the length of time he stayed in Colombo after the assault. There were different versions.

c.  He told the Director that he lost contact with his wife after she and her daughter returned to Sri Lanka from Malaysia. They failed to obtain a visa for China. However, in his SCF, he said he maintained contact with his wife.

d.  The applicant had deposited sums into the bank accounts of the gangsters who was unknown to him. The adjudicator queried why he would do so as the gangsters did not know his whereabouts. He was only threatened on the phone.

e.  The adjudicator accepted that the applicant might have problems with the gangsters. However, the adjudicator did not accept that the gangsters would continue extortion even after 11 years. The applicant had closed his business and deserted his home. His claim was based on information from his wife whom he had lost contact. It was also from his mother who told him a man claiming to be an old school friend looking for him.

f.  The adjudicator did not accept that there was violence or threat which led to his leaving Colombo after June 2007. There was reasonable State protection. There was no credible evidence that the gangster problem was ongoing. The applicant did not suffer severe pain or suffering amounting to torture or CIDTP. There was no public official involved. There was no real risk of harm. BOR 3 failed.

g.  There was no real risk that his life would be deprived arbitrarily if refouled.  BOR 2 failed.

h.  The dispute was private in nature. There was reasonable State protection and relocation options. There was no persecution within the meaning of the Refugee Convention. Persecution risk failed.

15.The adjudicator dismissed the appeal on 24/5/2018.

Judicial Review

16.The applicant filed the leave application for judicial review on 19/5/2020. There was no specific complaint in his affidavit.  He pointed out that his life was still in danger. He disagreed with the TCAB decision.

17.As mentioned above, the leave application was out of time for nearly 21 months.  He should have first sought an extension of time.

18.In considering whether there is good reason for the extension of time, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [3]

19.The applicant did not apply for extension of time.  He did not explain the delay.

20.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

21.The adjudicator had analysed the evidence. The applicant was inconsistent. There were several areas which appeared doubtful to the adjudicator. Unfortunately, the applicant did not attend the hearing. The adjudicator was entitled to consider the information before him and dispose of the appeal on paper. It was in compliance with the procedures of the Immigration Ordinance [4]. I agree with the conclusion of the adjudicator. The applicant failed to substantiate his claim.

22.I agree with the TCAB decision.  It is reasonable.  There is no error in law or procedure either.

Conclusion

23.The applicant did not apply for leave within 3 months of the TCAB decision.  There was undue delay.  He did not explain.  The intended judicial review is of no merit.  There is no reasonable prospect of success.  There is no good reason to extend the time for the leave application. I refuse leave for the judicial review.

Dated the 13^th day of January 2022.

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