Bamunu Arachchige Priyantha Asoka Gunarathna v. Torture Claims Appeal Board

HCAL 596/2020

[2022] HKCFI 1481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 596 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Sri Lanka who last arrived in Hong Kong on 29 May 2018 as a visitor with permission to remain up to 12 June 2018 when he did not depart and instead overstayed, and on 3 July 2018 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by a local gangster for failing to pay extortion money and/or by his wife’s lover due to their affair. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mirigama Town, Gamaha District, Sri Lanka. After leaving school he ran his own business trading in mobile phones and electronic goods, married his wife and raised a family with 2 children, but in 2017 he separated with his wife due to her affair with another man.

3.In about 2014 a local gangster started to come to his shop to demand for extortion money from the Applicant, and to avoid his business being affected the Applicant would try to comply by paying the gangster whatever he could, but by the end of 2017 when he could no longer afford to pay any further extortion money, the gangster made threats against him, and on one occasion the Applicant was beaten by some unknown men whom he suspected were sent by the gangster to teach him a lesson.

4.As a result the Applicant became fearful for his safety, and in early 2018 after he was told by his friend that his wife’s lover was planning to kill him so that they could be together, the Applicant felt it was no longer safe to remain in Sri Lanka, and so on 29 May 2018 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 February 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 1 April 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the local gangster or by his wife’s lover upon his return to Sri Lanka due to the absence of or low intensity and frequency of past ill-treatment from them, that his problems with them were private disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, 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.

7.On 12 April 2019 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 27 November 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 3 April 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found on the basis of the Applicant’s claims of fear of harm from the local gangster or his wife’s lover that his problems with them were all private disputes without any official involvement that state/police protection would be available to him upon his return to Sri Lanka if needed as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 14 April 2020 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, and in his supporting affirmation of the same date he merely stated that he is not satisfied with the decision as it disregarded his submitted documents but without providing any details or particulars or elaboration as to how it did so. 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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.

13.Furthermore, the Applicant recently on 13 April 2022 filed an affirmation requesting to withdraw his application as he wants to return to his home country where he no longer has any problem and that his life will be safe there.

14.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that it would be safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 19^th day of May 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