Galath Arachchige Dimuthu Nimesh v. Torture Claims Appeal Board

HCAL 488/2019

[2023] HKCFI 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 488 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Sri Lanka who arrived in Hong Kong on 29 May 2008 as a visitor with permission to remain as such up to 12 June 2008 when he did not depart and instead overstayed, and was arrested by police almost 5 months later on 8 October 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by certain local supporters of the political party Sri Lanka Freedom Party (“SLFP”) as he supported their rival United National Party (“UNP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Chilaw, Puttalam District, North Western Province, Sri Lanka. After leaving school he worked as a driver for a UNP Provisional Councilor, and supported UNP regularly attended their local meetings and activities.

3.In 2002 some local SLFP supporters started to harass and threaten the Applicant demanding him to leave UNP and to join SLFP, and the Applicant always refused to do so, but after his father who also supported UNP and worked for the same UNP Provisional Councilor suddenly disappeared without news in 2004, of which the Applicant suspected that the SLFP supporters might somehow be responsible, and to avoid any possible threats from them, he therefore left the country in 2006 for Singapore before returning one month later to Sri Lanka when he then kept a low profile to avoid those SLFP supporters.

4.However, one day in early 2008 those SLFP supporters approached the Applicant again to demand that he should leave UNP to join their party, and when he refused, they proceeded to beat him with wooden sticks, but the Applicant eventually managed to make his escape to seek medical treatments.

5.After the beating the Applicant felt it was no longer safe to remain in Sri Lanka, and so on 29 May 2008 he departed for Hong Kong where he overstayed, and after his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 17 July 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”).

7.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 he will face any personal real and foreseeable risk of being harmed or killed by those local SLFP supporters upon his return to Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him for any political reason given that he was just an ordinary UNP supporter without holding any official post in the party, that it is not accepted that there would still be any adverse interest in him after all these years since he left the country in 2008, that in the absence of 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 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Colombo where it would be difficult if not impossible for anyone to locate him.

8.On 28 July 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those local SLFP supporters that caused him to leave his home country come to Hong Kong, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until some 5 months later and only after his arrest by the police, that in any event it is not accepted that there would still be any adverse interest in him after all these years since he left the country, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Sri Lanka as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 20 February 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision without putting forth any ground for his intended challenge, nor did he request any oral hearing for 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.

11.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.

12.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 46 – 62 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.

13.The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

14.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.

15.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as he has been granted a dependent visa by the Immigration Department but without providing any further details or documentary evidence to corroborate his assertion.

16.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 11^th day of August 2023

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