Mana Wila Mudiyanselage Don Indunil Susitha v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 205/2019

[2022] HKCFI 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 205 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 5 February 2016 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.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a national of Sri Lanka.  He entered Hong Kong as a visitor on 1 September 2005 and was permitted to stay until 3 September 2005. He did not depart and had overstayed since 4 September 2005.  On 25 February 2008, he surrendered to the Immigration Department.  The applicant had made refugee claims with the United Nations High Commissioner for Refugees but was rejected. On 14 April 2010, he lodged a torture claim.  His claim was made on the basis that, if refouled, he would be tortured or killed by Upali Tennakoon (“Upali”).

5.According to the applicant, Upali was politically influential and was on the candidates list for provincial council election for United National Party (“UNP”) in 2013.  The applicant knew Upali and his cousin Mahathung from their work for United People Freedom Alliance (“UPFA”).  In April 2001, the applicant went to a music show with Mahathung along with three other friends.  After the music show, the applicant went home.  The next day, he learnt that Mahathung was dead.  Following the death of Mahathung, in the span of four years from 2001 to 2005, the applicant was confronted by Upali nine times.  Among the confrontations, the applicant was attacked in the 4^th confrontation on the road near his house.  He received medical treatments in the hospital and also reported the attack to the police but was of no avail.  When Upali could not locate him, his parents and auntie were also harassed for his whereabouts. In March 2005, the applicant was visited by seven men in his workplace.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraphs 6 to 25 of the Notice of Decision dated 25 July 2014 by the Director (“the Director’s First Decision”) and paragraphs 23 to 40 of the decision dated 5 February 2016 by the Board (“the Board’s First Decision”) as described below.      

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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”).

7.By the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, Persecution risk and BOR3 risk. The Director found that the applicant’s claim was not substantiated because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [40]-[49]; [65]-[66]; (ii) there was no severe pain and suffering [50]-[54]; (iii) there was no state involvement [55]-[64]; (iv) state protection was available to him [67]-[73] and (v) internal relocation was an viable option [74]-[80].

8.On 6 March 2017, for reasons set out in the Notice of Further Decision that there was no evidence to show that the applicant’s right of life under BOR 2 would be violated upon return, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”).  In particular, the Director at paragraphs 8 of the Director’s Second Decision considered the applicant’s additional information and explained why the additional information was either irrelevant or did not assist in his non-refoulement claim.

The Board’s Decisions

        i.            The Board’s First Decision

9.The applicant first appealed the Director’s First Decision to the Board.  The Board conducted oral hearings on 5 January 2015 and 22 January 2015 respectively for his appeal.  The parties were both legally represented at the hearings.

10.The Board cross-examined the applicant in relation to the material aspects of his claim.  It observed that the applicant failed to explain certain inconsistencies in his evidence; that there was no acceptable evidence why internal relocation was not available to him; and that no explanation was given as to why he failed to lodge his torture claim promptly [61]-[80]. 

11.Having considered the evidence, the Board found that the applicant had not established his claim.  It considered that the applicant’s alleged assault or verbal threats were of low frequency and that Upali and his subordinates had shown no intention to inflict serious harm or even kill the applicant [85]-[96].  It noticed that the applicant’s injuries required no hospitalization, surgery, nor were the injuries lasting [98].  He simply failed to prove that the suffering had attained the level of severity and, in any event, there was no state involvement [100]-[112].  Further, the Board found that, based on the country of origin information, state protection was available to the applicant [121]-[134] and Upali’s status as a member of the UNP would not give him immunity against illegal acts [135]-[139].  In any event, internal relocation was an option open to the applicant [140]-[148]. 

12.For the aforesaid reasons, by way of the Board’s First Decision, the Board rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

ii.            The Board’s BOR2 Decision

13.The applicant further appealed the Director’s Second Decision to the Board.  It is pertinent to note that, before the Director, the applicant provided additional information in support of his claim under BOR2 risk, namely, photos and news articles showing the illegal activities of Upali’s brother H.B. Tennakoon (“HB”).  On appeal, the applicant argued that the Director failed to consider properly his additional information in relation to HB.

14.The Board considered the additional information and the supplemental submissions for the Director [51]-[54].  It considered the applicant’s claim that HB would not increase his risk of harm upon refoulement [61].  It held:

“M’s [the applicant’s] evidence at the hearing on 27 August 2018 was that he had not committed any crime or act which would put him in danger of being subjected to capital punishment in his home country without due process of the law. There is no evidence that M’s [the applicant’s] right to life under BOR2 would be at risk on his return to his country.

Having considered M’s [the applicant’s] case on all available evidence, material and submissions on his behalf, there is no evidence that there is a personal and real risk of him being subjected to a BOR2 risk on his return to Sri Lanka”.

Application for leave to apply for judicial review

15.The applicant filed Form 86 on 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, he said he would need time to obtain documents from his country to prove his case.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. 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).

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

19.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.”

20.The applicant has not disclosed what documents he intends to obtain from his country and when he will be able to obtain them. From the Board’s reasons, it is difficult to imagine what documents can refute the Board’s findings. The application should not be adjourned further. The applicant has not raised any valid ground to challenge the Board’s Decision.

21.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.

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

CONCLUSION

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

Dated the 19^th day of April 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