Palitha Bandara v. Torture Claims Appeal Board

HCAL 33/2019

[2022] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 33 of 2019

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Sri Lanka who last arrived in Hong Kong on 7 March 2004 as a visitor on a passport with another identity with permission to remain up to 6 April 2004 when he did not depart and instead overstayed, and was arrested by police almost 6 years later on 3 January 2010 for making false representation to an immigration officer and for breaching his condition of stay, for which he was subsequently convicted and sentenced to prison for 10 months, during which he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the local supporters of the political party United People Freedom Alliance (“UPFA”) as he supported their rival United National Party (“UNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis.   

2.The Applicant was born and raised in Kurunegala, Sri Lanka. After leaving school he ran a business trading in motor vehicles, and followed his father’s tradition to support UNP by regularly attending their local meetings and rallies.

3.In about 2002 some local UPFA supporters started to approach the Applicant to ask him to discontinue his political participation, but the Applicant always refused them, and several months later one day some UPFA supporters came to him and threatened to kill him if he still refused to discontinue his political participation, and after several beatings by those UPFA supporters later in 2003, the Applicant fled from his home district to take shelter in a friend’s place in Kotte and then in Ampara, and when he was later told by her mother that those UPFA supporters kept coming to his home looking for him, the Applicant felt it was no longer safe to remain in Sri Lanka, and so on 26 February 2004 he departed for Seychelles and then Maldives before arriving in Hong Kong on 7 March 2004 on a passport with another identity and where he overstayed, and upon his subsequent arrest by police almost 6 years later and for which he was convicted and sentenced to prison for 10 months, during which he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 30 November 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 UPFA supporters upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for the UPFA people to specifically target him for any political reasons, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to and especially when his supported party UNP has since won the general election that it is unlikely there would be any threats from UPFA, 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 64,000 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 him to be located.

6.On 13 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 16 November 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found in the totality of the Applicant’s evidence significant concerns over the credibility of the central aspects of his claim which had been further undermined by his failure to raise it upon his arrival in Hong Kong until almost 6 years later and only after he was arrested by police that it is not accepted that he had any actual or imputed profile as being involved in any way in any activities of UNP or that he had never been beaten, threatened or targeted for harm in any way by anyone in Sri Lanka, that in any event even on his own admission that he had not had any involvement with the UNP since 2001/2002 that there was no reason of any further adverse interest in him by the UPFA people, and that recent COI did not suggest in any way that current UNP supporters, much less of a former supporter as the Applicant who had had no involvement with the UNP for more than 16 years would face any risk of politically motivated harm from anyone including UPFA supporters that it was not satisfied that the Applicant faces any real chance of harm of any kind for any of the reasons claimed in Sri Lanka in the reasonably foreseeable future or upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.     

8.On 4 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date as well as his subsequent written submissions in which he just repeated his claim as before and that he wanted to be allowed to live in Hong Kong as he is already in his fifties with health problems and having been in Hong Kong for years that he simply cannot survive in his home country but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his intended challenge.

9.I should also note that in his written submissions the Applicant did attach several medical reports/certificates as evidence of his alleged health problem which was diagnosed as renal stone or urinary tract stone, and for which he was hospitalized at Queen Mary Hospital on 6 December 2021 for an operation for their removal, and was then discharged on 10 December 2021 with a follow-up appointment on 7 November 2022. It is therefore clear that whatever health problem that he might have at that time has since been resolved, and in any event given its nature even if it were still an outstanding issue that it could not in my judgment be accepted as a valid ground for his intended challenge of the Board’s decision. 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.

10.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 Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 28 – 60 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

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

13.In the premises and 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.

14.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 17^th 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