Hitinayaka Mudiyanselage Nalinda Sarath Bandara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1103/2019

[2022] HKCFI 2217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1103 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 21 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 on 25 August 2014 as a foreign domestic helper.  His employment contract was however prematurely terminated on 11 November 2014.  He did not depart within the limitation of stay and had overstayed since 26 November 2014.  On 15 October 2015, he surrendered to the Immigration Department.  On 26 February 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of United National Party (“UNP”) for his affiliation with the United People’s Freedom Alliance (“UPFA”).  He also feared that he would be harmed or killed because of the death of a UNP member caused by his uncle.

5.According to the applicant, he was a supporter of UPFA.  Invited by his uncle, the applicant participated in the election activities for the UPFA politicians between 2011 and 2014.  During the campaigns, he was responsible for the promotional materials.  Oftentimes, he and coworkers would have confrontations with the UNP supporters.  In around July 2013, during a confrontation with the UNP supporters, the applicant’s uncle accidently killed a UNP member.  The UNP members started to revenge against the applicant as they dared not take action against the applicant’s uncle who was a local police officer.  The applicant was assaulted twice and also, in one house visit, the UNP members threatened his wife.  Out of fear, he eventually fled to Hong Kong for protection.  While he was in Hong Kong, he was told that the UNP members were still looking for him.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 10 August 2017 by the Director (the “Director’s Decision”) and paragraph 27 of the Board’s Decision.  

The Director’s Decision

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

a.  risk of torture under Part VIIC 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 on the basis that he would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment indicated an unlikelihood of future risk of harm [13]-[18]; (ii) the state protection would be available to him [19]-[22]; and (iii) internal relocation was a viable alternative [23].  

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 December 2018, the Board conducted an oral hearing for his appeal.

9.Having considered the applicant’s evidence, the Board refused to accept them as credible.  It identified several inconsistencies therein.  For example, the applicant claimed to be actively involved in the campaigns but his knowledge of the elections was worse than an ordinary voter.  More pertinently, the applicant admitted that his knowledge about politics was all from his uncle.  As to his fear originated from the friends of the murdered UNP member, the Board found that such claim was implausible and contradictory.  Meanwhile, the applicant even provided different names for the alleged uncle, which further undermined his credibility [33]-[54]. 

10.Even taking the applicant’s claim to its highest, the Board found that the past threats and assaults were of low frequency and intensity [55]-[64]. In addition, the country of origin information showed that state protection was available for the applicant [65]-[78].  In any event, internal relocation was not unduly harsh for the applicant [107]-[110]. 

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

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

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

13.In his affirmation in support of his application, the applicant enclosed a statement, in which he reiterated the reasons why he came to Hong Kong in order to avoid his enemies and the general situations after he had arrived in Hong Kong.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.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.”

17.Those materials in paragraph 13 above are not valid reasons to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 21^st day of July 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