Kandagoda Gamage Amila Maduranga v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1520/2019

[2024] HKCFI 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1520 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 present 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 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 39, is a Sinhalese from Sri Lanka. He entered Hong Kong as a visitor on 10 August 2005. He overstayed since 10 September 2005 and was arrested by the police on 2 November 2005. The applicant made a torture claim on 3 November 2005, which was rejected on 13 October 2011. The subsequent appeal was also dismissed on 23 November 2011. On 9 July 2016, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the United National Party (“UNP”) because he had hurt one of their members.

5.According to the applicant, most of the people in his village supported the Sri Lankan Freedom Party (“SLFP”). In February 2001, the applicant joined SLFP upon being threatened. In December 2001, UNP won the parliamentary election and the applicant heard that three houses belonging to SLFP members were destroyed by UNP members. In the morning of 2 March 2002, the applicant was confronted by five people about his involvement in SLFP when he went to the market. He suspected they were UNP supporters. These people then started to push him and hit his left arm and left leg with the pole for several minutes. The applicant snatched the pole and hit one of the men on his head. The man fell onto the ground as a result and the applicant immediately ran away.

6.The applicant told his family what happened when he returned home. Although his mother told him to report the case to the police, the applicant did not dare to do so, but instead went to stay at his friend’s home. On the same day, after the applicant fled, three people (“the three people”) went to seek for his whereabouts at his home and claimed that they wanted revenge because the applicant had injured their brother. The applicant relocated to stay at another friend’s house the next day. Around ten days later, he was informed by his father on the phone that the three people went to look for him at his house again. The applicant stayed at his friend’s home for three years, during which he was informed by his parents that the three people continued visiting his home occasionally seeking for his whereabouts.

7.In early May 2005, when the applicant returned to his friend’s house after work, his friend’s parents told him that the three people had been to the house looking for him. A week later, they came again while the applicant was at work. His friend’s parents told him that it was too dangerous to continue staying at Sri Lanka and his friend advised him to flee to another country. Two days later, the applicant moved to a house near his workplace, where he stayed for two months. Subsequently, his friend took him to the passport office to obtain his passport and eventually the applicant arrived in Hong Kong from Sri Lanka on 10 August 2005.

8.The applicant maintained contact with his parents and his friend while in Hong Kong. His parents told him that the three people had threatened to vandalise their house and harm them because their injured brother had developed psychiatric problems due to the attack by the applicant. They also found out that the applicant had left Sri Lanka and threatened to kill him when he returned. The applicant’s father therefore considered relocating elsewhere.

9.Subsequently, the applicant learnt from his brother that he had moved out from the family. Meanwhile, his parents had initially left the hometown, but then moved back, after which the three people continued enquiring them about the applicant’s whereabouts. In 2013, the applicant’s brother was attacked by three unknown men wearing motorcycle helmets when he was on his way to his parents’ home. The three unknown men claimed to be UNP supporters and threatened to kill him and the applicant for revenge. The applicant’s brother was stabbed in his abdomen and arm. He was also punched and kicked. The applicant’s brother was later taken to the hospital by other villagers. He later disappeared after telling the applicant that he intended to leave Sri Lanka.

10.The applicant subsequently learnt from his parents that the brother of the three people had died at the end of 2012 and that they blamed him for his death. The applicant had no contact with his parents since late 2014. When his brother-in-law went to his parents’ house to look for them, he found the house had been vandalised and there was no trace of his parents. His brother-in-law then reported the matter to the head of the village.

11.Meanwhile, the Sri Lankan Army (“SLA”) was also after the applicant as he was suspected to be involved in Liberation Tigers of Tamil Eelam (“LTTE”) together with his friend. The applicant was afraid that he would be arrested by SLA upon return to Sri Lanka.

12.The applicant considered internal relocation not viable because UNP supporters had successfully located him before, so that he believed that they would still be able to find him elsewhere within Sri Lanka. He was also of the view that he could not seek help from the police as they would be bribed and sided with the UNP supporters and the three people.

13.Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 27 October 2017 (“the Director’s Decision”).

The Director’s Decision

14.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”).

15.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view that (i) the low frequency and intensity of past ill-treatment received by the applicant indicated a low future risk of harm upon his return to Sri Lanka [17] - [25]. (ii) state protection would be available to him [26] - [33]; (iii) internal relocation would be viable [34] - [38]; (iv) the risk of being ill-treated by the SLA due to his suspected affiliation with LTTE was low [39] - [42]; and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [43] - [48] or Persecution risk [49] - [55].

The Board’s Decision

16.The applicant appealed the Director’s Decision to the Board. On 17 January 2019, the Board conducted an oral hearing.

17.In his Notice of Appeal (“NOA”), the applicant claimed that there was an occasion during which he was abducted and being tortured in a dark room. The perpetrators assaulted his private parts and they also threatened to kill him and set his body on fire [29]. During the hearing, the Board drew the applicant’s attention that his issue with the three people were private in nature and that the problem could be solved by internal relocation. However, the applicant considered such option not viable [52] - [57].

18.The Board noted that the applicant was able to give specific and detailed evidence about past events. He also did not exaggerate or embellish his evidence when the opportunity to do so arose [64]. Yet, the applicant made no reference during the hearing regarding his new claim in the NOA that he had been abducted and tortured [65]. The Board therefore did not accept the newly claimed abduction and torture [66].

19.Apart from this, the Board considered that the applicant was a mostly reliable witness and accepted most of his evidence [71]. It accepted that there was a real risk, though small, that the applicant would suffer serious physical mistreatment from the three people if he returned to his home area in the reasonably foreseeable future [79] and that such harm would likely cause him severe pain and suffering [80], [92]. However, the applicant could avoid the harm from the three people and other UNP supporters by internal relocation [81] - [83], [87], [93]. In the meantime, the Board was of the view that the applicant’s claimed risk of being harmed by SLA was remote and not a real risk [84] - [86].

20.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

21.The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

22.In his affirmation in support of his application, the applicant said if he returns to Sri Lanka, he will be killed by his enemies.

DISCUSSION

23.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

25.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.”

26.The Court has noted that the adjudicator in this case was exceptionally sympathetic with the applicant in his assessment of the evidence. He found the applicant a mostly reliable witness, on the basis of his mostly consistent and details evidence [72]. He came to this conclusion despite his findings:

“69. In considering the credibility and reliability of his claims and evidence, the Adjudicator has also taken into account the documentary evidence he provided to support his claimed version of events. These documents include a hand-written letter from his parents from 2014: an ‘Investigation Report’ from the local police station from June 2017 which provides a brief summary of his protection claims with no relevant detail; two statements from the local Member of Parliament from the Petitioner’s home area, which, contrary to his own claims state that the Petitioner was an ‘active party worker who had been dedicated to the party’s success’; and an undated hospital report about his brother which, contrary to the Petitioner’s claims, states his brother received a ‘superficial cut injury following an assault’ and not that he was stabbed in the abdomen and arm. In the Adjudicator’s view, assuming the documents to be all true and genuine, they add little if anything to the assessment of his claims.”

27.The adjudicator accepted that the applicant would be subjected to real risk of BOR 3. Then he considers that alternative internal relocation can avoid all the applicable risk as he said:

“93. However, as discussed with him in the hearing, in assessing persecution risk, as with the BOR 3 risk assessment, the Board must also take into account whether it would be safe and reasonable for the Appellant to relocate to an area of Sri Lanka where he would not be at risk of persecution. For all the reasons discussed above, in relation to the CIDTP risk assessment, on the evidence before it, the Board considers that, in his particular circumstances, it would be safe and reasonable for the Appellant to relocate to a large town or city in the south or east of Sri Lanka or in Colombo or somewhere else far away from his home area, where the Board considers that he would not be at risk of being subjected to serious harm or persecution from the brothers of the man he injured in 2002 or members of the SLA.

94. Accordingly, for all of the above reasons, having carefully considered his claims and the evidence as a whole, the Board does not accept that the Appellant has a well-founded fear of persecution in Sri Lanka, and his claim for non-refoulement protection on the ground of persecution risk is not substantiated.”

28.The applicant has raised no viable reason to challenge the Board’s finding in relation to internal relocation. There is simply no reason for the Court to interfere with the Board’s findings.

29.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

30.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 June 2024

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