THABSEER MOHAMED FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 17 May 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 December 2018 refusing his application for non-refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Sri Lankan national, now aged 44.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims, if returned to Sri Lanka, he will be harmed or killed by members of the People’s Alliance National Party (the “PA”) because of disputes arising out of his role in the construction of an extension to the Al Madhrasa Majid Mosque.

3.  The Applicant’s father is a founder member of the Sri Lanka Muslim Congress (“SLMC”) and the trustee of three mosques in his area.  His uncle and his brother are members, while the Applicant and his mother are supporters.  There has always been friction, sensitivities and tension between the SLMC and the PA.  In 2004, the Applicant and his brother undertook construction works for an extension to Al Madhrasa Majid Mosque.  The construction works attracted objections from the PA.  Disputes arose between members of the PA and the Applicant’s group about the construction works.  The walls of the mosque were repeatedly vandalized by gangsters drawing obscene pictures and writing obscene words on them.  One early morning, the Applicant’s group ambushed three gangsters vandalizing the wall of the mosque.   One of the gangsters was beaten unconscious, while the other two escaped.  The Applicant’s brother took the unconscious gangster to the hospital.  Later that morning the Applicant, his brother and five members of his group were arrested by the police and detained for six days without charge.  Starting from the fourth day of their detention, they were assaulted by the police.  Eventually, on the seventh day, the Applicant’s father obtained bail for them. 

4.  After his release, the Applicant continued to work as a taxi driver.  One night, he was ambushed and badly assaulted.

5.  About three weeks later, the gangster who was beaten unconscious died.  The Applicant learned that the gangster was a brother of the Chief of the Temple and brother to Jute Malli.  Out of fear, the Applicant and his brother fled to Colombo.  The Applicant said during his short stay in Colombo he learned from his father that Jute Malli and his gang and assaulted his parents and burnt down their family house.  Jute Malli also made a false accusation against him and his father for damaging the statue of Buddha facing the temple.

6.  The situation in his home town intensified with Buddhist mob vandalizing the mosque, demanding the arrest of the persons responsible for that gangster’s death.  The gangster’s body was cremated and received same burial ceremony as a Buddhist monk.  After the ceremony, the Buddhists went to the Imam’s house and dragged him out from his house.  On hearing the news, the Applicant and his brother returned from Colombo.  The mob burnt the mosque and tramped on the Imam.  When the Applicant’s brother tried to rescue the Imam, he was killed by Jute Malli.  Petrol bombs were thrown.  The situation was very chaotic.  The Applicant fell unconscious.  He subsequently woke up in a hospital.  He was discharged after two days.    

7.  The Applicant and his uncle made numerous attempts to report the murder of his brother to the Wattala police station, but the police took no action.  Then they made a complaint to the Colombo police headquarter which directed the Wattala police to investigate.  The Watalla police arrested Jute Malli.  According to the Applicant, the case against Jute Malli was apparently thrown out by the judge.  Following that, the Applicant and his uncle were threatened with death.  The Applicant’s friend was murdered with his decapitated body found in the river.

8.  The Applicant fled from place to place within Sri Lanka.  He was abused as “the new boy in town”.  Eventually, his friend Nizam arranged to fly him to Guangzhou.  From there he sneaked into Hong Kong.

The Board’s finding

9.  The Board had considered the Applicant’s evidence against the country of origin information.  It accepted that there had been some tensions and violence between some of the Sinhalese/Buddhist communities and some Muslim communities in Sri Lanka.  However, it found multiple and significant discrepancies between the Applicant’s evidence in his supplemental claim form (“SCF”) and his testimony before the Board which show that his account of events is incredible.  These include whether his father had fled to India, the number of people with the Applicant during the incident which allegedly led to the death of Jute Malli’s brother, who took Jute Malli’s brother to the hospital, when he died, when the Applicant was arrested, how long was he held in custody, his bail conditions, the source of his bail money, where he was when his brother was allegedly killed by Jute Malli, the details of how he reported the murder of his brother to the police, how long was Jute Malli kept in custody, the wounds sustained by the Applicant’s father and whether his father reported the attack to the police. 

10.  The Board had fairly set out the inconsistencies to the Applicant and invited his explanation.  The Applicant explained he had problem with his memory and fortified his explanation by saying that he had received medical treatment but defaulted in taking medicine.  He could not produce medical evidence claiming that his identification document could not allow the information to be retrieved.  The Applicant had provided significant and specific details of events that happened in 2004, 2005 and 2006, but made no mention of having a memory problem.  The Board was conscious that the Applicant’s testimony was not meant to be a memory test.  It accepted that a person’s ability to recall details could fade with passage of time and with the stress while testifying.  It also noted that he completed his SCF less than 12 months before the hearing.  In all the circumstances, the Board was unable to accept that his memory was adversely affected to such a level as could sufficiently explain the many significant inconsistencies.  It considered the number and nature of the discrepancies were so significant as to undermine the Applicant’s credibility and the reliability of his claim.  It came to the conclusion that the Applicant was not a witness of truth and was not satisfied that he had told the Board the truth in relation to his claims and the reasons why he left Sri Lanka and why he does not wish to return.  It rejected the entirety of his claim.  It was not satisfied that the Applicant had been involved in a dispute about building an extension for a mosque, that he or his family members were harmed or that they had harmed anyone in any clashes with Buddhists or gangsters or Jute Malli or his brother or associates.  It did not accept he had been involved or implicated in the death of Jute Malli’s brother or anyone else, or damaged a Buddhist statue facing the temple.  It did not accept he had made any complaints to the police or that he was arrested and bailed as he claimed.  It did not accept he was in fear of his safety prior to leaving Sri Lanka or that he was in hiding or moved his residence in order to avoid harm.  It did not accept that he and his family had left Sri Lanka because of fear or threats from Jute Malli or his associates or any Buddhist or any other person.  It did not accept the police or government officials or anyone else in Sri Lanka had or has any adverse interest in him or that he would be of any adverse interest to the police or Sri Lankan authorities on his return to Sri Lanka.  It did not accept that he feared returning to Sri Lanka for the reasons as he claimed or any other reason.  The Board therefore considered he would not be at any real risk of any harm and there is not a real risk that he would face any of the proscribed form of harm should he return to Sri Lanka.  Applying the law applicable to non-refoulement protection to these finding of facts, the Board found he was not entitled to protection under any of the applicable grounds under the Unified Screening Mechanism.  Hence, it dismissed his appeal against the Notice.

The legal principles applicable to judicial review

11.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  The Applicant produced a four page typewritten submission, which he said was prepared by his friend.  The submission made repeated allegations that the Board erred in law, failed to attain the high standard of fairness and that the Decision is unreasonable and irrational.  The allegations are all in general terms and lacking in particulars.  Though the Applicant said that he understood and agreed with the contents of the submission, he was unable to give particulars.  Some of his answers even contradicted the submission and were not relevant to his situation.  For example, it alleges that the Board failed to analyse and assess whether state protection exist in India which is clearly irrelevant. It also alleges that the Board failed to give him sufficient chance to arrange relevant evidence.  When asked to elaborate, he admitted that is untrue. 

13.  The submission reiterated his fears that he will be tortured and killed, if returned to his home country.  It also repeated his claim that the police in his area did not help him and that the members of the ruling government abused their power and killed many of the opposition leaders and their supporters.  These claims have been considered and rejected by the Board. In effect, these are challenges of the finding of fact by the Board that his case is nothing but a fiction.  That is not permissible unless the Board’s finding is the result of errors of law, procedural unfairness or Wednesbury irrational. They are also irrelevant because the Board found his claim is fictitious. 

14.  On the other hand, after the legal principles applicable to judicial review as set out in the above section had been explained to him at the beginning of the hearing, the Applicant confirmed that he had no complaints about errors of law, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements on his behalf.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on these vitiating elements in the Decision sought to be reviewed. 

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  

16.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It gave generous allowance to the Applicant for his personal condition and lapse of time.  It found significant and substantial discrepancies between his evidence in his SCF and his testimony.  It fairly set out those inconsistencies and invited the Applicant for his explanation.  After careful consideration of his explanation and all the circumstances, it rejected his explanation and gave detailed reasons.  In view of the number and nature of the significant inconsistencies, it was open to the Board to reject the Applicant’s explanation, find him incredible, reject his account of the events leading to his fleeing Sri Lanka and make the finding of facts as it did.  These are finding of facts solely within the realm of the Board.  In the ultimate analysis, it found the Applicant incredible and rejected his case as mere fictions and his fears not genuine.  It found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such findings were made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

17.  For the above reasons, the Applicant’s leave application is refused.

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