Antonythasan Sajeeth Pirasanth v. Torture Claims Appeal Board
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HCAL 1625/2020 [2025] HKCFI 3953 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1625 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 38-year-old national of Sri Lanka who arrived in Hong Kong on 18 August 2005 as a visitor with permission to remain as such up to 17 September 2005 when he did not depart and instead overstayed, and was arrested by police more than 6 months later on 4 April 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the Sri Lankan authorities suspected to have been involved with the terrorist organization Liberation Tigers of Tamil Eelam (“LTTE”) and/or by the LTTE members for refusing to join them, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in a Tamil family in Village Udappu, District Chilaw, Sri Lanka. After leaving school he worked as a farmer/fisherman to make his living, and continued to live with his parents and his elder brother in his home village. 3.One day in June 2000 his brother was involved in a fight with some Sinhalese youth in the village, and after a report was made to the police, fearing that the police would take the side of the Sinhalese villagers against him, his brother therefore left his home and fled from the village. 4.Several months later a man delivered a letter from his brother to the Applicant’s parents in which his brother claimed to have joined the LTTE and would not return. 5.Shortly thereafter the police and Sinhalese villagers came looking for his brother, and when his father denied knowing his brother’s whereabouts, the police did not believe him and beat him violently that he suffered injuries to his head. 6.In August 2001 a man claimed to be a LTTE member came to visit the Applicant’s father who then asked the man to inform the Applicant’s brother to be careful as the police were looking for him. 7.Several months later in December 2001 another LTTE member came to inform the Applicant’s father that his brother wanted the Applicant to go meet him in Jaffna, and so the Applicant went there to stay in the home of some stranger to wait for his brother who arrived in February 2002 to stay with the Applicant for the next several months during which his brother told him that he had joined the LTTE in their fights against the government’s troops and had as a result lost a leg during one such battle. 8.Thereafter his brother then moved the Applicant to another home of an old couple in Kilinochchi, during which his brother would return from time to time to visit the Applicant. 9.In October 2003 the Applicant went to Vattavan to visit his father who was then suffering from cancer and eventually passed away a month later, whereupon he returned to Kilinochchi to stay in the same house as before. 10.From December 2003 to April 2004 the LTTE were in fierce fighting with the government troops in Kilinochchi, and so the Applicant moved to Colombia to stay in a friend’s place, during which he heard that some unknown people had come to his home village looking for him, while at the same time a LTTE member also happened to come looking for him but was shot to dead by the other group of people, and thereafter the police in their investigation of the killing started looking into the Applicant’s family for any connection with the LTTE. 11.Soon some LTTE people also approached the Applicant to invite him to join their group as did his brother, to which the Applicant always declined, but which also led to the police’s suspicion of his involvement with the LTTE, and so the Applicant became fearful for his safety and departed Sri Lanka on 17 August 2005 for Hong Kong, and upon his subsequent arrest by the police he raised his torture claim to the Immigration Department, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 9 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 12.While released on recognizance pending the determination of his claim, the Applicant on 19 January 2010 was again arrested by police for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 2 months. 13.By a Notice of Decision dated 31 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”). 14.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Sri Lankan authorities or the LTTE members upon his return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from any of them, that the credibility of his claims is found doubtful due to the many inconsistencies discrepancies and contradictions in the various accounts given for his claim, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong in August 2005 until more than 7 months later in April 2006 and only after his arrest by the police, that there is no reliable evidence of his brother being a member of LTTE that it is not accepted that he was ever a member or that there was any police investigation of the Applicant or any adverse interest of the Sri Lankan authorities in the Applicant as alleged or at all, that he was also able to leave the country from the capital of Colombo without any problem, nor is there any reliable evidence of any risk or threats from any LTTE members against him for declining to join their organization, and that reliable and objective Country of Origin Information (“COI”) show that LTTE was defeated by the Sri Lankan military in 2006 and that the civil war had formally ended in 2009 that LTTE no longer posed any real threats that it is not accepted that the Sri Lankan authorities would still have any adverse interest in the Applicant or his family or that any LTTE members would pose any risk to him, and while the present objectives of the Sri Lankan government have changed to mainly identify Tamil activities in the Diaspora working for Tamil separatism or to destabilize the unitary Sri Lankan state, it is not accepted and there is no evidence that the Applicant as a Tamil would be so targeted or considered as amongst the identified groups of persons to be subjected to investigation or detention by the authorities upon his return to Sri Lanka or that he would not be given due process with legal representation and access to a fair trial if he were to be investigated upon his return that it is not accepted that he would face any risk of any form of harm under any of the applicable ground or as alleged if refouled to Sri Lanka. 15.On 14 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 11 July 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 17 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision. 16.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claims that his brother had ever been involved with LTTE or that the Applicant had been suspected and investigated by the Sri Lankan police for any involvement or connection with LTTE that it is not accepted that the Sri Lankan authorities have ever targeted him for suspicion or investigation for such involvement or connection or to have any adverse interest in him upon his return to Sri Lanka, nor was there any evidence of any threats ever made by any LTTE members against the Applicant for refusing to join the organization prior to his departure of the country or thereafter to justify any fear on his part from them, and that relevant COI show that since the defeat of the LTTE by the Sri Lankan military and that the civil war ended in 2009 that the LTTE is a spent force with no terrorist incidents in general since that it is not accepted that the Applicant will face any risk from either the Sri Lankan authorities or the LTTE members upon his return to the country, and while the Sri Lankan government has changed its focus to identifying Tamils suspected of links to the LTTE including returning Tamils being subjected to investigation and detention that it is not accepted that the Applicant would face any such risk, and that even if he were to be so subjected that he would be entitled under the law of Sri Lanka and its Constitution to due process and legal representation to defend any charges against him in a court of law without any risk of being subjected to any of the proscribed harm that the Board concluded that his claim for non-refoulement protection failed on all the applicable grounds. 17.On 7 August 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just made bare assertions that he is not satisfied with the decision which he considered as not reasonable but without providing any necessary or relevant details or particulars or elaboration as to how it is so, nor did and he request any oral hearing for his application. 18.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 19.As the last day of the three-month period for him to file his Form 86 fell on 17 July 2020, the Applicant was therefore some 20 days late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 20.In the Applicant’s case, a delay of 20 days cannot be considered as insignificant, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 17 April 2020 to his lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for his significant delay. 21.As for the merits, if any, of his intended application, as noted above that the Applicant has only made a bare and vague assertion that the Board’s decision is not reasonable but without putting forward any necessary or relevant details or particulars or elaboration as to how it is so, nor did he request any oral hearing for his application. As such, I do not find his such assertion reasonably arguable for his intended challenge or any merits in his intended application. 22.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 23.In the Applicant’s case, the Board rejected his claim for the very thorough and detailed analysis and reasoning set out in paragraphs 36 – 61 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim and submissions made by his lawyer on his behalf as well as relevant COI available before the Board, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board. 24.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 25.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his significant delay, I refuse to extend time and accordingly dismiss his leave application. Dated the 8th day of September 2025
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 |
Cases cited in this judgment