Kuruppu Arachchi Appuhamilage Don Kapila Asanka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1087/2019

[2022] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1087 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.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 11 May 2017 and was permitted to stay until 13 May 2017. On 18 May 2017, he surrendered to the Immigration Department. On 23 May 2017 and 28 May 2017 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Canisious Ranaweera (“CR”) and other members of United National Party (“UNP”).

5.According to the applicant, UNP was popular and connected with the government and police. They had been forcing the applicant and his father to join them as they thought the applicant would bring more followers. On 14 October 2000, CR, together with some men, set a fire at the applicant’s house and his father’s workshop for his father’s refusal to join them. From 2000 to 2014, the UNP members had constantly threatened his father. In 2015, the UNP members changed target and started to persuade the applicant to join them. Met with the applicant’s refusal, the UNP members threatened and assaulted him. He received medical treatments. The applicant’s report to the police and his subsequent relocation to other places were of no avail. Thus, he escaped to other countries before eventually coming to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 April 2018 by the Director (the “Director’s Decision”) and paragraph 16 of the Board’s Decision as described below.

The Director’s Decision

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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 way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to him [16]-[18]; and (iii) internal relocation was a viable alternative [19]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 25 January 2019, the Board conducted an oral hearing for his appeal, during which the applicant was assisted with an interpreter [7].

9.The Board explored the material aspects of the applicant’s claim at the hearing [21]-[47]. Having considered the documents and the applicant’s evidence, the Board found that the applicant’s claim lacked credibility. In particular, the Board ruled that the applicant’s father was never affiliated with the claimed political group; that, while the applicant was asked to join the UNP, he was not pursued relentlessly by CR or members of UNP; that his father or his house was never a target by the UNP members; that the applicant was never a target or he had never relocated to other cities out of fear; that the UNP members did not have an intention to harm or kill him [48].

10.Based on the aforesaid findings on the applicant’s credibility, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant said he could not accept the Board’s Decision. “Palitha Range Bandara who is a minister from the UNP in my area is a former police officer. His supporter Canisjous Ranaweera (Principal Counsel Member) is still looking for me. They had come home looking for me when I was in Hong Kong. Therefore, they will do some harm if I go to Sri Lanka.”. He has also submitted an affidavit of his father stating that his son has been given death threats for the past couple of years and he was at a state where he could no longer live in his village. The death threats against him have not come to an end though he is in Hong Kong. He considered that there was no suitable environment for him to live in Sri Lanka. He has also submitted a letter dated 28 November 2002 certifying that there was a complaint on 14 October 2000 that his father’s house was set on fire. An Industrial Office has also issued an Assessment of Damage caused by Election Violence and a letter dated 10 March 2018 was issued by the Divisional Secretariat Division certifying that for the past 4 years, thug groups had been in the village areas in search of the applicant in order to get rid of him for good and he believed that if the applicant returned to Sri Lanka, he would be killed by the thugs.

DISCUSSION

13.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).

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

15.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.”

16.Those grounds set out in paragraph 12 above are purported to be evidence to challenge the Director’s and the Board’s findings of the facts in his case. He should have produced the evidence to the Director or to the Board for their consideration as they are the fact finding authorities. Although his father has given his statement in his affidavit and the Industrial Officer has issued a letter, these documents are evidence, which cannot be verified without having the makers of the documents to be cross-examined before the Director or the Board. The documentary evidence was made in 2002. The applicant has not explained why he did not produce the evidence to the Director or the Board. This Court cannot accept the evidence as valid evidence against the findings of the Director and the Board on the facts of his case.

17.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.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 7^th day of June 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