Silva Tikiriyawarnage George Prasanna v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 712/2019

[2022] HKCFI 2961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 712 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 22 February 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.  His immigration records showed that he was arrested in Hong Kong on 20 August 2006 for overstaying.  He had previously raised a torture claim which was later rejected.  On 25 January 2013, by way of a written representation, he lodged a non-refoulement claim. His non-refoulement claim was assessed on all the applicable grounds other than on the torture risk^[1].

5.The applicant based his claim on the fear that, if refouled, he would be harmed or killed by people of the People’s Alliance (“PA”), a group that were connected with the underworld gangsters.  In his claim presented to the Director, the applicant stated that both his father and uncle belonged to PA’s political rivalry, the United National Party (“UNP”).  When the applicant was around 13 or 14 years old, his father and uncle were arrested for murdering two PA members.  After this incident, the conflict between the two parties escalated.  On 20 May 2000, the applicant’s father died from a traffic incident which the applicant believed to be perpetrated by PA members. In the same year, the applicant’s family started to receive threatening letters which indicated that they would kill the applicant.  In around 2003 or 2004, the PA members found the applicant in an election campaign.  But he was able to escape.  On 10 November 2004, while he was at a shop, the shop owner told him to flee as the PA members had been looking for him.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, he learnt that the PA members were still chasing him.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 3 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

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 if refouled.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]-[19]; (ii) state protection would be available to him [20]-[26]; and (iii) internal relocation was a viable alternative [27]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 13 March 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented and assisted by an interpreter [9].

9.The applicant submitted a revised statement of claim [8].  The Board allowed him to rely on the revised statement and highlighted the difference with his previous statement in its decision [8].  In the revised statement of claim, the applicant added, inter alia, that his father was the leader of a criminal gang and he was targeted by the enemies partly because of his involvement in the gang. It also considered the applicant’s oral evidence at the hearing [11]-[51].

10.Having assessed all the evidence, the Board made the following findings.  First, the applicant’s claim was largely based on hearsay information and assumptions and his evidence was self-serving [72].  Secondly, it was a mere assertion that his father was a leader of a criminal gang [73]. Thirdly, the allegation that his father died from a traffic incident orchestrated by a rival gang was also a mere assertion [74].  Fourthly, he had never seen the alleged letter with threats [75].  Fifthly, the applicant’s evidence about his alleged gang activities was also inconsistent [79].  As a result, the Board found that the applicant’s claim was not substantiated.  In addition, the events allegedly occurred after he came to Hong Kong were also not credible [81]-[82].

11.In these premises, 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 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant said that the Board rejected his case because he was unable to submit documents to the Board. He needs time to obtain documents from his country as evidence.

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 Decisions 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 Board did not dismiss his appeal because he had failed to produce documents to prove his case, but because of the inconsistencies in his evidence that the Board did not believe the facts in support of his case. Those grounds 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 18^th day of October 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