Kathireson Sethurajah Sudarsan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1430/2019

[2024] HKCFI 1623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1430 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 24 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 45, is a national of Sri Lanka. He entered Hong Kong on 13 August 2005 as a visitor and overstayed since 13 September 2005. The applicant was arrested by the police for theft on 6 June 2006. On 14 September 2006, he was arrested by the police again for suspected overstaying. The applicant made a torture claim on 22 September 2006, which was rejected on 25 January 2013. His subsequent appeal was also dismissed on 18 March 2013. On 13 August 2018, the applicant submitted a supplementary claim form and made a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The non-refoulement claim was made on the basis that, if refouled, he would be harmed or even killed by the Sri Lankan authorities since he was perceived to be linked with Liberation Tigers of Tamil Eelam (“LTTE”).

5.According to the applicant, when he visited his uncle in January 2002, he befriended with some people, whom he was unware were from LTTE. In around March 2002, the applicant was introduced to a recruiter who persuaded him to join LTTE. He refused and was then abducted to an unknown area in a forest. He was detained for two months during which he was forced to undergo training with several hundreds of recruits. One day in May 2002, the applicant was taken by four regular LTTE cadres to perform some work. While the four cadres were engaged in conversation with someone else, the applicant boarded a bus and escaped. He went back to his hometown, but realised that it was not safe for him to stay as everyone thought he was a LTTE member. So he left his hometown and stayed at his friend’s house, but even there the police came searching for him. The applicant therefore approached an agent and then went to Doha, Qatar.

6.The applicant returned to Sri Lanka after three years in May 2005. One day in August 2005, the applicant had a dispute with his neighbour, during which he injured him with a sword. His neighbour then reported the applicant’s association with LTTE and the police came searching for him. He therefore left Sri Lanka for Hong Kong on 13 August 2005.

7.The applicant last contacted her mother in late June 2018. She told him about the harassment on those Sri Lankan associated with LTTE and warned him not to return. She also mentioned the village representative was seeking for the applicant’s whereabouts and she believed that he was acting under the instructions of state officials.

8.The applicant was of the view that he could not seek protection from the authorities because former LTTE members were taken into custody for rehabilitation with their fate unknown. As an LTTE escapee, his situation was even worse because the former LTTE commander had defected and was operating a para-military group with the blessing of the government to abduct and torture LTTE escapees. Furthermore, his neighbour whom he injured had a good relationship with the minister of his area, so that he believed that he would be arrested upon return and his life would be in danger.

9.The applicant also considered internal relocation not viable because Sri Lanka was a small country so that it would be relatively easy to find out one’s whereabouts. He also claimed that he had to get registered in the police station and village council for relocation to big cities because he is a Tamil.

10.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 18 September 2018 (“the Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director was of the view the applicant was not in fact a LTTE member, so that any alleged risk of harm was plainly speculative. Evidence also showed that his Tamil background and his previous connection with LTTE would not attract adverse attention from the Sri Lankan government. Meanwhile, his dispute with his neighbour was private in nature with no evidence of state involvement [15] - [20].

13.In any event, (i) state protection will be available to him upon his return [21] - [23]; (ii) internal relocation is viable [24] - [29] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [30] - [35] or Persecution risk [36] - [40].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board. On 20 February 2019, the Board conducted an oral hearing.

15.The Board was of the view that given the previous conduct of the authorities towards the applicant, it is unlikely that the harm perceived by him would materialize. The applicant was not intercepted at the airport between 2002 and 2005 when he left the country twice and returned once. Moreover, he had been out of the country for such a long period of time so that it is doubtful whether he could still be recognized. In any event, the applicant had never joined LTTE, so that his claim of fear was merely speculative. Furthermore, his dispute with his neighbour was purely private in nature with no evidence of state involvement [123] - [152].

16.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk or Persecution risk [35] - [51], [206] - [231], [236] - [238]. State protection and internal relocation were also available to him taking into account the Country of Origin Information [153] - [191], [232] - [235].

17.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

18.The applicant has filed Form 86 dated 27 May 2019 to apply for leave for judicial review of the Board’s Decision.

19.In the affirmation in support of his application, the applicant said that the Board disregarded his dangerous situation and its decisions were unfair.

DISCUSSION

20.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).

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

22.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.”

23.For the reasons above, the Board concludes that the applicant will not be subjected to harm or to be killed if he returns to his home country.

24.The applicant has not raised valid reasons to challenge the Board’s Decision, taking into consideration of his reasons in his affirmation.

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

CONCLUSION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. 　Accordingly, I dismiss his application.

Dated the 4^th day of July 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