MOHAMED NASEER MOHAMED ASMI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1406/2018

[2021] HKCFI 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1406 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the applicants in open court.

1.  Form 86 be amended by adding Suliha Rebun as the 2^nd applicant; Mohamed Shaid as the 3^rd applicant and Mohamed Shoaib Asmi as the 4^th applicant.

2.  Leave to apply for Judicial Review by the 1^st to 4^th applicant be refused.

Observations for the applicants:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicants’ claim of non-refoulement protection.

2.  The applicants are husband, wife and their two sons (who are minors).  They will be referred to as A1, A2, A3 and A4 below, or collectively as the applicants.  A1 is a national of Sri Lanka.  A2 is a national of Indonesia.  Their two sons are holders of Indonesian passports with residence visas to remain in Sri Lanka.  A1 considered that sufficient and did not think it necessary for them to apply for Sri Lankan passports.  A3 was born on 7 May 2006 in Sri Lanka and A4 on 25 January 2012 in Hong Kong.  The whole family left Sri Lanka for China on 7 February 2015 and then sneaked into Hong Kong by boat unlawfully on 8 March 2015.  In April 2015, the family surrendered to the Immigration Department and then lodged a non-refoulement claim.  They were subsequently released on recognizance.

3.  The facts of the case and the basis for the applicants’ non-refoulement claim are summarized at para [1-5] and chronology of events at [47] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicants would be harmed by the Islamic Trustee Board (“TB”) of the home town of A1 in Sri Lanka.  A1 is a Muslim/ Moor and A2 also converted from a Christian to a Muslim in 2005.  They were targeted by TB because A2 refused to follow straight Islam disciplines of wearing the abaya and hijab.  Nor can A2-A4 return to Indonesia because A2’s parents are angry that A2 has married a man of different race and religion and they will harm her and her family, including her children, if they return to Indonesia.

4.  The primary events alleged by A1 and A2 span over a number of years and succinctly summarized by the Adjudicator of the Board.  I can do no better than quoting the chronology of events set out at [47]:

1.	2002	A1 & A2 met in HK.
2.	7/2005	A1 went to Indonesia to meet A2’s parents.  A1 left Indonesia with A2 and together returned to Sri Lanka.
3.	8/2005	A2 converted to Islam.
4.	9/2005	A1 & A2 got married.
5.	2005	Public denouncement at the mosque.
6.	2005	The Fight.
7.	2005	The Attack – reported to police.
8.	31/1/2006	A1 travelled to Singapore with his Sri Lankan passport.[1]
9.	4/2/2006	A1 flew to Hong Kong from Singapore claiming to be for business purposes and was permitted to remain until 11/2/2006.  He did not depart and had overstayed since.
10.	7/5/2006	A3 was born in Sri Lanka.[2]
11.	18/3/2007	A2 and A3 arrived in Hong Kong and were permitted to remain as visitors until 17/4/2007.  They did not depart and had overstayed since.[3]
12.	21/5/2007	A1 was arrested in HK by the police for overstaying.[4]
13.	21/5/2007	A2 and A3 surrendered to the police for having overstayed in Hong Kong.
14.	23/5/2007	A1 was referred to the Immigration Department (“ImmD”) for investigation.
15.	5/6/2007	A1 lodged his 1st Torture Claim under CAT by an Interview Report.[5]
16.	3/9/2008	A2 & A3 lodged their 1st Torture Claim under CAT.[6]
17.	25/1/2012	A4 was born in Hong Kong.[7]
18.	3/5/2013	A1 withdrew his 1st Torture Claim.[8] A2-A4 withdrew their 1st Torture Claims.[9]
19.	16/7/2013	A2-A4 repatriated to Indonesia.[10]
20.	8/8/2013	A1 repatriated to Sri Lanka.
21.	13/9/2013	A1 went to Indonesia to reunite with A2-A4.[11]
22.	21/10/2013	A2-A4 were issued their Indonesian passports.[12]
23.	7/11/2013	A1-A4 left Indonesia for Sri Lanka and lived in Colombo.
24.	29/12/2013	A1 & A2 travelled to Thailand for holiday/ business – Trip (1).[13]
25.	10/1/2014	A1 & A2 left Thailand and returned to Sri Lanka.
26.	3/2014	Windows Smashing – reported to police.
27.	5/2014	Visit to the house – reported to police.
28.	12/8/2014	A1 was reissued his Sri Lankan passport[14].
29.	10/2014	Attempted Kidnap of A3 – reported to police.
30.	5/11/2014	A1 was issued a Tourist’s Visa to Thailand.[15]
31.	14/11/2014	A1 was issued a Visitor’s Visa to Malaysia.[16]
32.	21/11/2014	A1 & A2 left Sri Lanka for Malaysia – Trip (2).
33.	25/11/2014	A1 & A2 left Malaysia and arrived in Thailand – Trip (2).
34.	28/11/2014	A1 & A2 left Thailand and returned to Sri Lanka.
35.	7/2/2015	A1-A4 left Sri Lanka for China.
36.	8/3/2015	A1-A4 arrived in HK illegally by boat from China.[17]
37.	9/3/2015	A1’s letter to the ImmD to apply for non-refoulement protection.[18] A2’s letter to the ImmD to apply for non-refoulement protection.[19]
38.	11/6/2016	A2-A4’s Non- Refoulement Claim Forms (“NCF”).
39.	19/11/2016	A1’s NCF.
40.	18/1/2017	A1’s answers to the LOQ.
41.	24/2/2017	A2-A4’s answers to the LOQ.
42.	15/3/2017	Interview of A2 & A3 – adjourned, A2 requested for a joint interview with A1.[20]
43.	16/3/2017	Joint interview of A1, A2 & A3.

5.  In brief, A1 and A2 met in Hong Kong in 2002.  A2 previously worked in Hong Kong as a domestic helper.  They got married in Sri Lanka in September 2005.  A2 converted her religious belief to Islam.  However, A2 found it hard to adapt to the Islamic tradition of wearing the abaya and hijab.  Instead, she wore short dresses.  This antagonized the TB of the town.  After people of the TB visited the family to advise A1 to change A2 and A1 told them not to come again, there was a public denouncement at the mosque that A1 had married an Indonesia national who had been living in a way contrary to Islamic believes and urged the people to take appropriate action.  Since then, the family received unnecessary bothers from “unwanted people”.  A1 did not know these people.  The events included a fight between these people and A1 and his friends, an attack to A1, an attempted kidnapping of A3 from his school, and window smashing and visits at the matrimonial home.  A1 to A4 had previously lodged a torture claim but they withdrew their application in 2013.  They were repatriated to Sri Lanka and Indonesia respectively.  They came back illegally in March 2015 and later applied for non-refoulement claim.

The Director’s decision

6.  By a notice of decision dated 24 April 2017, the Director rejected the applicants’ non-refoulement claim.  The Director found there were no substantial grounds for believing that there would be any real risk of their being harmed or killed upon return to Indonesia or Sri Lanka.  He also found that the availability of reasonable state protection and internal relocation option in Indonesia and Sri Lanka would further lower or negate the perceived risk of harm.  The decision covered torture risk^[21], BOR 2 risk^[22], BOR 3 risk^[23], and persecution risk^[24]. The applicants lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

7.  A hearing was conducted before the Board on 20 December 2017 and 5 January 2018.  A1 and A2 gave evidence at the hearing.

8.  By a decision dated 2 May 2018, the Board rejected the appeal/ petition of all applicants confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

9.  The Board gave very detailed reasons for rejecting the applicants’ claim at paragraphs [56-161] of its decision.

10.  In a nutshell, the Board’s reasons can be summarized as follows:

(1)  The Board, on the credibility issue, found A1 and A2’s accounts (the events in Sri Lanka and Indonesia) incredible for reasons including that there were irreconcilable inconsistencies in their accounts; these inconsistencies were unsound and contrived; and they demonstrated themselves to be untruthful as witnesses [56].

(2)  They have not proved the factual basis to substantiate their claims [96].

(3)  Even if leaving aside the question of credibility and their accounts were accepted, the Board did not see any real risk of harm for the applicants to return to Sri Lanka for reasons including that there is no evidence (but A1’s own theory and suspicion) that the TB has ever condoned any violence against him; A1 can seek protection from the police; the frequency and intensity of past incidents was only low and did not indicate a real risk that the family will in future encounter incidents of the level of severity or intensity sufficient to constitute the proscribed ill-treatment; the episode of A2 wearing short dresses instead of the traditional clothes took place back in 2005/6, ie over 11 years had elapsed; the likelihood that the family will continue to be pursued after all these years because of one single objection against A2’s attire is low [97].  They can also seek protection from the police and state protection. If by his own choice, A1 decides not to go to the police or take legal action against the TB because he thinks that it might make his life as a Muslim or the life of his family back home disagreeable or frustrating, then this kind of difficulties is simply not “ill-treatment” within the meaning of the applicable grounds [110-115].

(4)  Similarly, even if their accounts relating to events in Indonesia were accepted, the Board did not see any real risk for A2-A4 to return to Indonesia.  The threats by A2’s father are no more than hollow threats and her parents had no real intention of causing grievous harm to them.  She can also seek assistance from the police and receive proper state protection [120-125].

(5)  The Board was not prepared to give credence to any part of A1 and A2’s accounts whether in relation to the incidents in Sri Lanka or in Indonesia.  It did not accept that they came to Hong Kong due to a fear for the life and safety of themselves and their children [126].

(6)  The Board emphasized that it had given the case serious considerations and realized that its decision would have far-reaching impacts on their 2 sons [127-128].

(7)  It repeated its findings in a summary that the applicants failed to prove the factual basis on which to find a risk of harm.  And even if the accounts of events were proved, they failed to prove a real risk of severe pain and suffering on their return to Sri Lanka and/or Indonesia [135-136].  Further, state protection will be available to them both in Sri Lanka and Indonesia [154].

(8)  In any event, internal relocation in Sri Lanka is a viable option to them.  The Board focused the discussion on relocation in Sri Lanka as it is expected that the family will reunite there, if refouled [160].

11.  Accordingly, the Board dismissed all the applicants’ appeal on all applicable grounds.

Application for leave to apply for judicial review

12.  The applicants filed a Form 86 on 17 July 2018 for leave to apply for judicial review of the decision of the Board.  In the form, A1 only put down his name as the applicant.  However, he deposed in his affirmation that he was authorized by A2 to A4 to make the application.  I therefore amend the Form 86 to include A2 to A4 as the applicants.

13.  There has been no request for oral hearing.  The application is therefore considered on the papers.

14.  The applicants attached to the supporting affirmation their “Grounds of Appeal”.  The grounds can be summarised as follows:

(1)  The Board has predetermined that A1 and A2 failed hopelessly on credibility and from there proceeded to determine the case with a bias.

(2)  The Board’s reasoning is defective (for reasons set out in para 4).

(3)  Availability of state protection is not the same as saying that such protection given can protect victims much of the time.  The Board failed to consider the fact that the police force is so heavily overworked.

(4)  The Board failed to consider the fact that A2 is a foreigner in Sri Lanka.

(5)  The Board failed to consider the threat of radicalized Islam and that a simple act of non compliance with a dress code can be an excuse for the unleashing of a group.

(6)  As for internal relocation, since A2 is a foreigner to Sri Lanka and A3 and A4 are minor children, it not possible for A1 to completely dislocate himself from his own immediate family and relocate to another part of the island. One has to take into account the availability of educational facilities in the English medium as the two children are only half Sri Lanka and are not conversant with the language.

(7)  Relocating to another part of the island also would cause other problems, namely, they may not be able to practice their religion as there may not be any mosques close by.  It is also cumbersome and difficult for reasons set out in para 10.1-10.3.

(8)  No consideration has been given to understand whether A1 and A2 were only confused at the time they gave evidence with regard to the various incidents.

(9)  No consideration has been given why A1 would wish to drop his business and family connections to live in a place like Hong Kong where he is unable to work, whereas in Sri Lanka he led a comfortable life style.

Discussion

15.  The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

16.  When the applicants pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

17.  In the present case, the Board in fact rejected all 4 applicants’ appeal/ petition mainly on the ground that it disbelieved the evidence of A1 and A2.  The Board rejected their accounts of primary facts based on the major irreconcilable inconsistencies in the evidence of A1 and A2.  Having carefully and meticulously evaluated all the evidence, it found that they are not truthful witnesses.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  And even if their accounts of events were accepted, the Board found there would be no real risk that the applicants would be subjected to any of the proscribed harm for international protection.  Further, state protection will be available to them in their respective countries.  They can also relocate to other parts of Sri Lanka.

18.  As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.  I found the grounds of review unmeritorious.

19.  I will deal with the “Grounds of Appeal” by categories generally.  The first category relates to the assessment of credibility and the complaint that it was not a fair assessment.  I cannot agree that the Board predetermined A1 or A2 on their credibility with bias.  The Adjudicator of the Board only reached her findings on their credibility after careful and meticulous examination of their evidence and pointing out the material inconsistencies and implausibility in their evidence.  Credibility issue is a case specific finding within the province of the Board.  Nor do I accept that it is reasonably arguable that the reasoning in the decision is defective.  On the evidence, the findings are plainly open to the Board and I do not find any flaws in the reasoning or bias in its decision.

20.  As regards the complaints in respect of the findings of availability of state protection and internal relocation alternative, the argument would not assist the applicants as the Board rejected their appeal mainly on the finding that the applicants failed to prove the alleged primary facts in support of their claim. In any event, the Board came to its findings after thorough consideration of relevant objective Country of Origin Information and circumstances of the applicants.  The fact that A2 was an Indonesian and the personal circumstances of her two sons including their place of birth and that they are half Sri Lankan speaking English language were clearly known to and considered by the Board.  The findings of the Board about the availability of state protection and internal relocation are entirely within the province of the Board and in my judgment not unreasonable on the evidence of the case.  Indeed, even in their own case, the single objection of the TB was that A2 did not wear abaya and hijab when she was much younger.  It is not their case that they were targeted for practicing their religious belief.  I do not see any real risk that they would be pursued and harmed, if refouled, because A2 had worn short dresses more than 15 years ago.

21.  I do not accept that the Board had failed to consider or properly consider relevant matters as alleged in the grounds of review.

22.  I do not find any reasonable arguable basis to challenge the decision of the Board in relation to A1 and A2. Accordingly, I refuse to grant leave to them to commence the judicial review application.

23.  I am conscious of the fact that A3 and A4 are minors.  Their cases should be considered separately.  The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971 and the Court’s subsequent cases.  I will not repeat everything that has been said by the Court of Appeal.  Suffice it to note firstly that non‑refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  Ill‑treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

24.  Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.

25.  A3 and A4’s claims were premised fundamentally on the parents’ claims that they would be harmed by the TB and parents of A2.  A1 and A2 also sought to support the claimed risk to the children with the allegation that there had been an attempt to kidnap A3.

26.  However, the Board after carefully considering the evidence of A1 and A2 separately and together disbelieved their evidence and the claimed primary events both in Sri Lanka and Indonesia.  There would be no factual basis in support of the children’s claim on any of the applicable grounds. In any event, even if the alleged events were accepted, the Board found there is no real risk that the applicants would be subjected to any of the proscribed ill-treatment either in Sri Lanka or Indonesia. The Board referred to the personal circumstances of A3 and A4 including their place of birth, their Indonesian nationality and right of residence in Sri Lanka, and the language they speak.  It emphasized that it realized the far-reaching impacts of its decision on the children’s lives.  It is plain that the Board had effectively and specifically considered the case made in support of the parents’ and the children’s claim individually and rejected each of them in the way as they were advanced.  I am of the view that A3 and A4’s non-refoulement claim in the present case had been properly dealt with by the Board.  It had achieved high standards of fairness in dealing with their claim consistently with the propositions stated in Fabio.

27.  Further, I have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of lack of legal representation before the Board.  There is indeed no factual basis found by the Board in support of their claim.  The “Grounds of Appeal” are also devoid of merits for A3 and A4.

28.  In the premises, I also find that the two minors’ intended judicial review has no arguable merit.  I will therefore treat the absence of legal representation for the two minors in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented as required under Order 80, rule 2 of the RHC given the lack of merits in their intended judicial review.

29.  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, irrational findings, or procedural unfairness in their decisions for each of the applicants.  Nor do I see any failure on their part to apply high standards of fairness.

30.  For the reasons given, there is no prospect of success in all the applicants’ intended application for judicial review. 

Disposition

31.  Accordingly, I refuse to grant leave to A1 to A4 each to apply for judicial review.

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