Wijemuni Roshan Sanjeewa Gunarathna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 106/2024

[2024] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 106 OF 2024

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision of the Director of Immigration (“the Director”) dated 1 March 2023 (“the Director’s Decision”) and the Decision dated 22 November 2023 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.His application in relation to the Director’s Decision fails in limine and is dismissed.[1] I shall deal with the Board’s Decision below.

3.The applicant asked for a hearing. He appeared before the Court on 19 August 2024.

4.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

5.The applicant is a national of Sri Lankan, aged 41. He had a checkered history of staying in Hong Kong. He raised a torture claim in October 2005 in Hong Kong, claiming that he was in danger because of religious conflict with the villagers in Sri Lanka. The Director rejected his application. His petition to the Security Bureau was dismissed on 15 March 2012. He lodged a non-refoulement claim whilst he was being detained in Castle Peak Bay Immigration Centre. But he withdrew his claim and was repatriated to Sri Lanka on 25 February 2016.

6.On 18 September 2022, he was arrested for illegally remaining in Hong Kong. He lodged a non-refoulement claim, a subsequent claim. The Director accepted his application. His subsequent claim is based on his allegation that if refouled, he would be ill-treated or killed by Wasantha, his gangs and the United National Party (“the UNP”) members (“his enemies”).

7.According to the applicant, he was a supporter of the Sri Lanka Podujana Peramuna (“the SLPP”), a rival political party to the UNP. His fear of his enemies arose out of 3 incidents, viz. the SLPP Office incident in 2016; the Playground incident 2017; and the Home Village incident in 2022.

8.In the SLPP incident, 3 members of his enemies came to the SLPP office and threatened to kill him and his friends if they continued to assist the UNP. They did not do anything else. The applicant reported the matter to police.

9.In the Playground incident, members of his enemy came to the playground with knives and they attacked the applicant and his friends. He escaped, but his friends Chamara was killed. He reported to police. Police arrested 4 people, but they were later released. He had relocated to Elpitiya for safety.

10.In the Home Village incident, he was attacked by 2 unknown males with knife. His back, belly and head were slashed. He went to hospital himself. He did not report to police as he had lost faith in them. He had relocated to Negombo for safety.

11.In 2022, he fled his country for Hong Kong. On 18 September 2022, he was arrested by police in Hong Kong and he made a non-refoulement claim.

The Director’s Decisions

12.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 15, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

13.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons: (i) there was no evidence that the incidents were caused by his enemies as the evidence was hearsay and speculative and the likelihood of his claimed risk of harm and threats from his enemies are unlikely and unforeseeable to materialize if he returns to Sri Lanka [25]-[37]; (ii) state protection will be available to him [38]-[44]; and (iii) internal relocation is a viable option [45]-[46].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing on 14 September 2023 and 16 November 2023. The applicant was unrepresented.

15.Having considered the evidence, the Board had made the findings below:

“30. The Board finds the Appellant’s account not credible and it is rejected as untruthful. …

41. After considering his evidence in the round, the Board finds no documentary or objective evidence that substantiates his assertion that he was an official member of SLPP. The Board does not accept that he was a Chief Organizer of SLPP in his Home Village. …

45. After considering his evidence in the round, the Board does not accept that he had been threatened by WASANTHA’s underlings as claimed. …

48. [As to the Playground incident]…The Board also finds no evidence indicating that the victim was a worker of SLPP Office; and that he was killed because of his affiliation with SLPP. …

54. [As to the Home Village incident] The Appellant did not submit any medical or objective evidence to substantiate his account about the Home Village Incident. …

56. The Board finds his account unsubstantiated and internally inconsistent and does not accept it. …

90. There is no evidence suggesting that the whole government and the police force of Sri Lanka will fail to discharge their duties properly should the Appellant bring his problem to the attention of the higher independent authorities. …

126. … It is reasonable or not unduly harsh for him to reside and work anywhere within Sri Lanka, especially Dehiwala-Mount Lavinia, Jaffina and Negombo.”

16.For the reasons above the Board dismissed his appeal.

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

17.The applicant has filed Form 86 on 9 January 2024 for leave to apply for judicial review of the Board’s Decision.

18.He has attached a statement of grounds to Form 86 in support of his application. I shall set out the grounds below.

(1)  The Board’s assessment of his case is unreasonable and unfair, without taking into account his right to life.

(2)  The Board failed to consider state acquiescence in his case.

(3)  The Board had relied too much on the Country of Origin Information (“COI”) without having regard to his personal background and experience.

(4)  The Director (and the Board) only cheery-pick the COI against his case without taking into consideration those that are in his favour.

(5)  The Board’s Decision is irrational.

(6)  He was not given sufficient time to prepare evidence for his hearing before the Board.

(7)  The Board’s Decision contains all the issues raised by the applicant; therefore, there is no reason to dismiss his appeal.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s Decision. He said his enemies burned down his house, which he had told the Board. They also killed his brother and this happened after the Board’s hearing.

21.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.”

22.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The grounds as raised by the applicant are not valid to challenge the Board’s finding of the facts above.

23.As the Board had rejected the applicant’s alleged facts in support of his claim, those grounds under 18 are either irrelevant or his own personal opinions or comments without any evidence in support. They fail to support his application. What he said before the Court are also not valid reasons to challenge the Board’s Decision.

24.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant appeared in person.