Kandiah Vasudevan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2116/2019

[2024] HKCFI 3304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2116 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 July 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. He appeared before the Court on 6 November 2024.

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 is a national of Sri Lanka. He was arrested by police on 16 April 2007 and referred to the Immigration Department. He lodged a torture claim on 21 April 2007. The Director rejected his claim. His appeal to the Board was dismissed on 5 April 2013. The applicant then lodged a non-refoulement on all applicable risks other than torture risk on the basis that, if refouled, he will be harmed or killed by the Liberation Tigers of Tamil Eelam (“LTTE”) because he was a member of it, but he had betrayed it, or by the Sri Lankan authorities due to his prior involvement with the LTTE.

5.According to the applicant, he joined the LTTE military group, an opposition party to the Sinhalese government, in April 2000. His maternal uncle was a member of the rival party of LTTE, People’s Liberation Organization of Tamil Eelam (“PLOTE”), which worked with the Sinhalese government. The LTTE authority instructed him to kill his maternal uncle because he had given information to the government about LTTE. The applicant was unable to carry out this order and leaked the information to his maternal uncle to escape. His friend told the applicant that LTTE had known about this and planned to execute him. He had also received information that police was also looking for him. He therefore decided to leave Sri Lanka for China. Shortly thereafter, he got a boatman who took him into Hong Kong. His mother told him that after he had left Sri Lankan, the security forces had come to the family’s home to abduct his father.

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his claim was not substantiated as his story that the LTTE authority planned to execute him; (ii) his father was abducted and the death of his 2 relatives were all bare allegations without evidence of proof; (iii) there was no evidence that the Sri Lankan government was against him [29]; (iv) state protection would be available to him [35]; and (v) internal relocation would also be a viable option for him [36]-[37].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 May 2019, the Board conducted an oral hearing for his appeal.

9.The Board had asked the applicant quite a number of questions. It came to the conclusion that the applicant was not a truthful witness [54]. The Board rejected his evidence on the facts of his claim [69]-[73]. It rejected his claim on BOR 3 risk [77], BOR 2 risk [80] and Persecution risk [84]-[85].

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

10.The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he had told the Board all his problems. He asked this Court to review the Board’s Decision.

14.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.”

15.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

18.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.