Hemba Waduge Nishantha Janaka Kalyanarathna v. Torture Claims Appeal Board

HCAL 176/2019

[2022] HKCFI 3280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 176 of 2019

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Sri Lanka who arrived in Hong Kong on 14 September 2005 as a visitor with permission to remain up to 16 September 2005 when he did not depart and instead overstayed, and was arrested by police on 5 October 2005. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by a member of the political party United National Party (“UNP”) as he supported rival party Janatha Vimukthi Peramuna (“JVP”) and/or by the Sri Lankan authorities for failing to attend a court hearing over some false charge brought by the UNP supporter against him. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Galapatha Wadumulla Village, Bentota Town, Galle City, Southern province, Sri Lanka. After leaving school he worked as a goldsmith in his employer’s shop in Matara which was about 2 hours’ drive from his home village, and started to support JVP regularly attended their local meetings and rallies in his home village.

3.One day in 2003 while he together with some of his fellow JVP supporters were putting up JVP posters in his home village, they were confronted by some UNP supporters which led to a fierce altercation but without physical violence.

4.About one week later while the Applicant together with his fellow JVP supporters were on the way to the JVP’s office, they were struck by a vehicle that one of his fellow JVP supporters was severely injured, and as a result the JVP supporters caught the driver Chaminda and beat him, and while he did not know him, the Applicant suspected that he was sent by the UNP people to attack them in revenge for their altercation of the week before.

5.Shortly after the incident the Applicant together with some of his fellow JVP supporters were arrested by police over the assault of Chaminda, and after being detained for 2 days for interrogation, they were brought before a magistrate and were released on bail pending trial which the Applicant later failed to attend after leaving the country.

6.Several weeks later one day while he was on the way home, the Applicant was ambushed by Chaminda and his men who punched and kicked him violently until some passers-by intervened that Chaminda and his men fled, and that the Applicant was later taken to the hospital for medical treatment.

7.After his discharge form hospital, the Applicant was afraid to go home and hid in a friend’s place in a neighboring village before returning to work in Matara, but when he was later told by his mother that Chaminda had sent men looking for him everywhere, the Applicant felt it was no longer safe to remain in Sri Lanka, and so on 14 September 2005 he departed Sri Lanka for Hong Kong where he subsequently overstayed, and after his arrest by the police, he then raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form (“NCF”) on 2 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 28 January 2008 for theft for which he was subsequently convicted and was given a fine, and thereafter he failed to report on his recognizance to the Immigration Department and disappeared for the next 6 years until 7 August 2014 when he was arrested by police.

9.By a Notice of Decision dated 19 April 2017 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”).

10.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 Chaminda or the authorities upon his return to Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of Chaminda to seriously harm or kill him, that it is not accepted that there would still be any adverse interest in the Applicant after all these years since he left the country in 2005, that there is no evidence of any pursuit of him by the police or authorities over any false charge or court action other than his own bare assertions and the fact that he was able to leave the country without any problem, that in any event his problem with Chaminda was a private personal dispute 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 the country away from his home district in large cities such as Colombo where it would be difficult if not impossible for Chaminda or his men to locate him.

11.On 4 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision of the Director, and for which he attended an oral hearing on 4 June 2018 together with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made by his lawyer on his behalf. On 24 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found the Applicant’s evidence as to his dispute with Chaminda and his subsequent arrest by police and the pending court action against him vague, evasive, inconsistent and conflicting with those given earlier by him to the Director that it doubted the credibility of his claim of fear of harms from Chaminda or the authorities that caused him to leave his country for Hong Kong, which was further undermined by his failure to raise his claim upon his first arriving in Hong Kong until his arrest by the police several weeks later and his subsequent failure to report on his recognizance or to proceed with his claim until more than 6 years later when he was again arrested by police, and that it concluded that he had fabricated his such claim to create a basis for his application for non-refoulement protection that it failed on all applicable grounds.

13.On 18 January 2019 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 just stated that he is not satisfied with the decision without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. 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.

14.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.

15.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 139 - 162 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

16.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim of fear of harm from Chaminda if true 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.

17.In the premises and 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.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 28^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