Vithana Pathirannehelage Warunapriya Lakmal Jayaratna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2269/2018

[2022] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2269 of 2018

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 11 October 2018 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 illegally on 28 December 2008.  On 6 January 2009, he was arrested by the police for illegal remaining.  On 9 January 2009, he raised a torture claim which was rejected on 19 September 2012.  The subsequent petition of the refusal was dismissed on 25 October 2012.  On 25 March 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the military or the intelligence operators who supported the ex-president Mihinda Rajapaksa (“MR”).

5.According to the applicant, among his political affiliations, he had been assisting the United National Party (“UNP”) and Janatha Vimukthi Peramuna (“JVP”) in the 2000 and 2001 parliamentary elections.  He also assisted Ravi Karunanayake (“RK”) of UNP in the 1999 presidential election.  In the same period, the applicant also helped a Buddhist priest, Rev. Batharamulle Seelaratme Thero (“Rev. BS”), to run the errands.  In September 2002, the applicant converted from Buddhism to Christianity when he started working as a driver for St. Thomas College.  His duties included the transportation of the students, including MR’s two sons.

6.In November 2004, February 2005 and 5 April 2005 respectively, there were anonymous calls inquiring the applicant about the route of the school bus and there were also odd arrangements of the school officials.  But nothing eventful happened.  On 8 April 2005, the applicant was dismissed.  Later in May 2005, his colleague was found dead mysteriously in the school.  In August 2005, the applicant was invited back to school but, unsatisfied with the new post, he did not report duty.  From September 2005 onwards, the applicant encountered unpleasant incidents, such as, unknown persons’ visits and threatening phone calls.  On 17 April 2008, he was attacked and fell into unconsciousness.  Later on 23 July 2008, he was told that his bus was towed away by the military and the police for being a suspicious bus.  The applicant believed that the threats and attacks were connected with MR.  In light of the constant threatening phone calls and the inaction of the police, the applicant decided to flee to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 24 January 2017 by the Director (the “Director’s Decision”) and paragraphs 24 to 52 of the Board’s Decision. When asked what did he do to attract the threats from MR, the applicant said that MR suspected the applicant to be the co-perpetrator with those anonymous callers who inquired the movements of MR’s sons.

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[20]; and (ii) state protection would be available to him [21]-[25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 10 September 2018, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [6].

10.Having considered the evidence, the Board found that the applicant failed to establish his non-refoulement claim [55].  The applicant claimed before the Board that the only fear of harm was from MR and MR’s family.  The reason for such fear was that he received those anonymous phone calls about the route of the school bus.  However, the applicant was unable to offer plausible explanations as to why receiving those phone calls made MR think he was wrong [57].  The applicant also could not provide any evidence that MR was connected with the past incidents he relied upon [58]-[60].  He also failed to support his assertion that MR or MR’s family had harmed him [61].  Insofar as the alleged harms were concerned, the Board, while accepting that there was credible evidence as to the threatening phone calls and assaults, refused to accept that these past incidents amounted to persecution or would in any way support the applicant’s assertion of future risk of harm.  In any event, due to the lapse of time, the Board did not believe that the said perpetrators still had any adverse interests in the applicant [62]-[76].

11.For the above reasons, 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 19 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant said he was not satisfied with the Board’s Decision.

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.The ground in paragraph 13 above is not valid reason 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 4^th day of August 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