Kotagama Vidanalage Suranga v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1885/2019

[2024] HKCFI 2415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1885 OF 2019

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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 dated 29 May 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 asked for a hearing. However, he was absent at the hearing on 19 August 2024 without prior notice to the Court. I shall deal with his application on paper.

The applicant

3.The applicant, aged 43, is a national of Sri Lanka. He last arrived in Hong Kong as a visitor on 6 August 2005 and had overstayed since 6 September 2005. The applicant was arrested by the police on 11 May 2007 for overstaying. He made a torture claim on 16 May 2007, which was rejected on 15 January 2014. On 27 May 2013, 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 people of United People’s Freedom Alliance (“UPFA”) because he used to support United National Party (“UNP”) and that a UPFA member was injured in a traffic accident while being a passenger on his three-wheeler.

4.According to the applicant, he had been a UNP supporter since 2000. In the end of 2003, he participated in a serious fight with members from People’s Alliance (“PA”), the former name of UPFA prior to 2004. The applicant was assaulted by iron/wooden poles and sustained serious bruises on his chest. He reported the incident to the police, but they refused to take any action. Thereafter, the applicant relocated to stay with his father. He made another report to the police, but was again futile. One day in early 2004, UPFA members forcefully entered the home of the applicant’s father to look for the applicant. The applicant managed to escape through the window with his friends and went to Colombo, where they stayed with a friend named Mr Priyantha.

5.One day, upon returning to Mr Priyantha’s home in Colombo after going out with him, the applicant found the front door was opened and the house was in a mess. The applicant’s two friends were also missing. Subsequently, the applicant was informed by a neighbour that a white van painted with UPFA logo had been parked outside the house and he believed that his friends were kidnapped by UPFA.

6.Meanwhile, the applicant was the owner of a three-wheeler. In 2004, a UPFA member was injured and lost consciousness in a traffic accident while being a passenger on the three-wheeler driven by the applicant’s brother. UPFA members blamed the applicant for causing the injury.

7.As the applicant no longer felt safe in Sri Lanka, he left for Hong Kong in August 2005. In January 2013, the applicant was informed by his father that the UPFA member who was injured in the three-wheeler incident had passed away and his fellow UPFA members put the blame on the applicant for his death. When the applicant last contacted his father in May 2018, he was told that UPFA members were still after him.

8.The applicant was of the view that he could not seek help from the police because his previous two attempts had been futile. The applicant also considered internal relocation not viable because UPFA members were all over Sri Lanka and had close connection. He further claimed that the registration requirement in Sri Lanka would allow UPFA members to locate him easily.

9.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 25 July 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) UNP was the current ruling party in Sri Lanka according to the country of origin information, so that the risk of harm would not be as imminent as he claimed [18]; (ii) the low frequency and intensity of past ill-treatment by UPFA members indicated that they had no intention to seriously harm or kill the applicant [19]; (iii) it was the applicant’s mere speculation that his friends were abducted by UPFA [20]; (iv) given the long lapse of time since the applicant left Sri Lanka and the three-wheeler accident, any grudges between him and UPFA should have dissipated [21]-[22]; (v) state protection would be available [24]; (vi) internal relocation would be viable [23], [25] and (vii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[36].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 13 March 2019, the Board conducted an oral hearing.

13.At the start of the hearing, the applicant told the Board that he lost his memory and was on medication [58]-[60]. However, he agreed to continue with the hearing as scheduled as he did not want to prolong the matter [61]. The applicant also mentioned for the first time during the hearing that he had paralysed and killed UPFA supporters [68]-[72].

14.The Board did not find the applicant’s capacity to participate in the hearing impaired by an abnormal or significant memory loss [87]. As to the applicant’s credibility, the Board did not find him to be a reliable witness of truth [88]. The Board found that the applicant might have some alignment with UNP and accepted parts of his claims in relation to his activities in support of UNP, which included (i) his fight with PA/UPFA members in 2003; (ii) the incident in 2004 in which UPFA members sought to confront him by forcing their way into his father’s house and (iii) the vandalising of Mr Priyantha’s house in Colombo. However, the Board was not satisfied that the applicant had developed a profile of any significance in UNP such that he would be of adverse interest to UPFA and hence faced a real risk of serious harm [89]-[93]. Meanwhile, the claim that his two friends were kidnapped by UPFA was based merely on hearsay from his neighbour [94].

15.The Board accepted the applicant’s claim that a UPFA member was injured while being a passenger on his three-wheeler driven by his brother and passed away 9 years later. Yet, the Board was not satisfied that the UPFA member’s death after such a long period of time could be attributed to the applicant, so that he should not face a real risk of harm in relation to this [95]. The Board was equally not satisfied that the applicant had paralysed a UPFA supporter and killed another given his failure to mention these previously [96].

16.The Board found the applicant had not suffered any serious harm in the past [98]. The passage of time and his cessation of UNP activities further reduced his risk of harm [99]. In any event, the applicant’s delay in leaving Sri Lanka and his delay in seeking non-refoulement protection were also inconsistent with the actions of someone genuinely in fear [100].

17.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [41]-[46], [108]-[110]. 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 5 July 2019 for leave to apply for judicial review of the Board’s Decision.

19.In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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 did not reject his evidence on the facts of his case wholesale. It came to the conclusion that given the facts accepted, the applicant failed to meet the requirements under the applicable risks. On this basis, the Board rejected his claim and dismissed his appeal.

24.There is no reason that the Court should interfere with the Board’s finding of the facts. Nor do I find the Board’s decisions Wednesbury unreasonable.

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.

The applicant was unrepresented and did not appear.