Weerasiri Narayanage Wijerathna v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 424/2019

[2022] HKCFI 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 424 OF 2019

BETWEEN

Application for Extension of Time 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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Extension of time for leave to apply for judicial review be refused

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong unlawfully from Sri Lanka via Thailand and then Guangzhou on 16 September 2007[1] and was immediately arrested. He was transferred to the Immigration Department on 24 September 2007.  He submitted a non-refoulement (“NRF”) claim by way of written representation on 27 September 2007 and was then released upon his own recognizance on 9 November of that year.  There is no record in the file as to what happened to that original claim[2] save that the applicant was notified that it was deemed withdrawn in accordance with s37ZG(1) of the Immigration Ordinance, Cap 115, by way of a letter dated 25 February 2014.  This was due to the applicant’s failure to return the completed Torture Claim Form (“TCF”) within the prescribed time frame.  He received that communication because the applicant notified the Immigration Department by way of an updated written representation[3] on 19 March 2014, that he wished to pursue his claim for ‘cruel, inhuman or degrading treatment or punishment’ under Article 3 but in doing so, he did not seek to re-open his original claim. Matters thereafter were therefore limited to his Supplemental Claim Form dated 17 April 2014.      

2.The applicant attended a screening interview on 2 July 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 14 January 2015, which was sent to the Duty Lawyer Service CAT Office.  The applicant appealed that Decision on 27 January 2015.  The Adjudicator of the TCAB, Ms Wong Hing-chun, heard him in person on 12 October 2015 and considered his appeal on all applicable grounds save for BOR2.  The Adjudicator refused his appeal on 23 February 2017. Notification of that refusal was sent in accordance with the applicant’s instructions, c/o Leung Wah He, Lau Kwan Yuen, Letter Box 135, Tuen Tsz Wah, Castle Peak Road, New Territories.

3.On 31 March 2017, the Immigration Department wrote to the applicant inviting him to submit additional information relevant to a BOR2 claim.  That letter was this time addressed to G/F, 97 Fuk Hang Tsuen, Lam Tei, Tuen Mun, New Territories.  He did not respond within the allotted time frame and so consideration of a BOR 2 claim was made on the papers before the Director at that time[4]. No appeal against that Further Decision has been lodged with the TCAB.  The deadline for appealing against the decision of the TCAB was 23 May 2017.  A Form 86 for leave to apply for judicial review of the finding of the TCAB dated 23 February 2017, was filed with the High Court on 14 February 2019.

Background to claim

4.The applicant was born and raised in Hambantota, Sri Lanka in 1966.  He is Sinhalese.  He was educated to Advanced level receiving a General Certificate of Education in 1983.  He initially hoped to train as a cook but did not complete the course and subsequently lived with his parents and started a family.  He was an odd job worker.  He maintains that his whole family, save for himself and his son, were killed in the 2004 Tsunami.  His NRF claim is based upon a fear that he will be harmed or killed by the Liberation Tigers of Tamil Eelam (“LTTE”) and/or the People’s Alliance (“PA”) and/or the Government of Sri Lanka.  He claims that in 2005, his son was kidnapped by LTTE and he had to pay LKR200,000[5] for his release, which became a debt owed to the LTTE.  This has not been repaid.  He therefore took his son to live elsewhere in Sri Lanka and got a job as a bus driver.  As a result of being befriended by a United National Party (“UNP”) politician, he joined the UNP as a general party member doing manual work but never voted.  During a meeting in August 2007, there was a clash between UNP and PA party members in which the applicant was assaulted but received no lasting injury.  A report was made to the police; the meeting was cancelled and no arrests were made.  The applicant continued to support the UNP.  Two weeks after the first incident, the applicant was set upon one night by three to four people with sticks.  He could not identify any of them and they said nothing during the attack. He understood from bystanders that his attackers were connected to the PA.  The applicant had his injuries attended to locally with painkillers.  The applicant made a further First Incident Report to the local police but failed to mention that his attackers were members of the PA. He did not follow up.

5.Subsequent to that second assault, the applicant maintained that he was harassed by members of the PA with threats to kill.  Whilst he did not recognise his harassers, others did.  He made no further complaint to the police.  Fearing himself to be in danger he decided to flee the country using his own passport.  This cost him a further LKR 200,000.  He could not afford to bring his son with him to Hong Kong and therefore left him in the charge of a friend. He has subsequently lost touch with him and everyone else he knew in Sri Lanka. 

6.Subsequent to his arrival in Hong Kong, the LTTE is no longer active and the applicant no longer fears retribution by them for the debt but maintains that he fears that the ruling party will target him.  The ruling party is not the PA.

Form 86 out of time

7.In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 14 February 2019.  Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from the date of the ruling of the TCAB which was 23 February 2017, which expired on 23 May 2017.  The Notice of Decision from the TCAB was sent to the Applicant’s registered address provided by him at the Hearing but it is noted that the date of the Decision by the TCAB appears to be some 14 months after the date of the hearing and may account for an intervening change of address.  Nevertheless, the Decision would also have been sent to the Immigration Department and it is presumed that the Immigration Department made the applicant aware of the status of his claim at a subsequent sign-in under his recognizance.  It is noted that his Form 86 dated 14 February 2019 shows Castle Peak Bay Immigration Centre (CIC) as his address once more.

8.The Applicant has submitted no proper explanation for his delay and has not sought leave for an extension of time.  From his affirmation in support he maintains:

“The Torture Claim Appeal Board simply ignored the fact that it was due of [sic] the detentions, first at Pik Uk Prison, and then at Castle Peak Bay Immigration Centre that I was in fact unable to submit important documents in support of my non-refoulement claim. Therefore the decision to reject my claim was reached unfairly and unjustly.”

9.An application for extension of time under Order 53 rule 4 is a discrete application quite separate from an application under Order 53 rule 3.  I have nevertheless considered the principles[6] applicable to granting such an extension if an application had been made and those are:

1) the length of delay;

2) the reasons for delay;

3) the prospects of success in the intended appeal, and

4) the prejudice to the putative respondent if extension of time were granted.

10.In this case the applicant was late by approximately 631 days and has not offered any explanation for this delay.  His reference to Pik Uk and incarceration in CIC appears to pre-date his TCAB hearing.  There is no mention as to why he has not been able to progress his claim since that date or how he came to know that his claim was rejected.  In view of that, he must satisfy the Court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  The Director considered his case in considerable detail and gave him more than one opportunity to make his case where parts of his evidence appeared to be in conflict.  The Adjudicator placed the applicant’s case at its highest, but nevertheless went on to confirm the Director’s Decision.  This may be because the facts relied upon by the appellant had shifted and because the basis of his desire not to return to Sri Lanka appeared to be for personal and social reasons[7]. There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given.  The factual basis for his claim was extremely weak and has grown weaker over time.  I can find no merit in it whatsoever.  There were no proper grounds provided for leave to judicially review the Decision of the Adjudicator.  The applicant simply asks for a re-hearing in order to provide documentation.  The underlying facts of his claim do not appear to require any such documentation.  The applicant’s claim as explained above is not reasonably arguable, I can find no error of law or procedure in the Decision made and he does not have a realistic prospect of success.

11.This application is dismissed as being out of time and leave for extension of time is refused.

Dated the 9th day of March 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