HEWAWELLALAGE PRABASH KRISHANTHA KUMARA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 167/2016

[2019] HKCFI 1972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 167 OF 2016

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.     Leave to apply for judicial review be granted

2.     Transcript of the hearing before the TCAB on 30 and 31 March 2015 to be provided by the Respondent within 30 days hereof

Observations for the Applicants:

Procedural history

1.  The applicants (not including the 5^th applicant), entered Hong Kong legally on 22 December 2009 and were permitted to remain as visitors for seven days.  They did not leave in that time frame and, as of 30 December 2009, they were overstaying.  The 1^st to 4^th applicants submitted a torture claim by way of written representation on 5 January 2010.  The 5^th applicant was born on 29 November 2010 in Hong Kong.  His torture claim was submitted on 12 April 2011.  Thereafter, the 1^st applicant’s torture claim form was submitted on 7 February 2013 and the 2^nd to 5^th applicants’ torture claim forms were submitted on 28 February 2013.  They submitted further documentation in support of their claims on 4 June 2013.  They asked for the claims to be dealt with together.

2.  The 1^st applicant (on behalf of the 2^nd to 5^th applicants) attended screening interviews on 26 July, 27 August and 12 November 2013 and again on 30 January and 23 May 2014.  His wife, the 2^nd applicant, attended a screening interview on 24 June 2014.  The Director of Immigration (“the Director”) dismissed their claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 July 2014.  The applicants appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 13 August 2014.  The adjudicator of the TCAB, Mr Ian Candy (“the Adjudicator”), heard the 1^st and 2^nd applicants (on behalf of the 3^rd to 5^th applicants) on 30 and 31 March 2015.  The Adjudicator refused their appeal on 19 April 2016 (“the 1^st TCAB Decision”).  As for their claim under BOR 2, the Director dismissed their claim on 20 February 2017 (“the Further Decision”) and thereafter the Adjudicator heard them on 18 September 2018 and refused their appeal on 18 February 2019 (“the 2^nd TCAB Decision”).

3.  The applicants filed a notice of application on Form 86, seeking leave to apply for judicial review of the 1^st TCAB Decision on 23 September 2016, which was out of time.  I am led to believe the applicants applied for an extension of time but there are no papers in respect of this.  In any event, the applicants also applied for legal aid for judicial review, which they say was refused in October 2016.  That decision was appealed and their appeal, they say, was dismissed on 9 November 2017. I have no documentary evidence of this either.  The applicants requested an oral hearing for leave and they appeared before me unrepresented, on 12 April 2018.  I considered their oral representations and the papers, having granted them leave to file their Form 86 out of time.

4.  Subsequent to the hearing on 12 April 2018, which was adjourned, the applicants submitted a renewed application for legal aid, which was refused on 14 January 2019.  Fortunately for them, they received assistance from the Justice Centre and from Daly & Associates, before the adjourned application for leave to apply for judicial review, which was finally set down for 1 August 2019.

Background

5.  The applicants are Sri Lankan nationals.  All, save the youngest child, were born in Sri Lanka.  The 1^st applicant was a businessman in Colombo in Sri Lanka between 1996 and 2009 trading in vehicle parts and garments as well as operating an Ayurvedic (complementary medicine) clinic.  The 1^st applicant was a supporter of the United National Party (“UNP”) at a local level helping to organise meetings, rallies and distribute posters.  He did not hold office but he did provide financial support.  In about 2006, there was discord between the UNP and the United People’s Freedom Alliance (“UPFA”).  Amongst the UPFA in his area was someone known as Mervyn Silva (“MS”) who the 1^st applicant believed to be a gangster as well as holding a parliamentary seat and being a Government Minister.  Many of the complaints made by the 1^st applicant in respect of MS were based upon news reports and general knowledge rather than direct dealings.  The 1^st applicant’s personal dealing with MS was limited to a single occasion when MS spoke to him and which amounted to “Son, you are working against us!  Be careful, or otherwise you will be in trouble!”. Direct threats were made by others, whom the 1^st applicant believed to be associates of MS.  Some of the alleged threats appear to have been directed at the 1^st applicant and his friends generally and not at the 1^st applicant personally, although he says he and his wife received telephone threats from unknown persons who suggested he should stop being involved with the UNP for the sake of his wife and children.  This caused him (and his young family) considerable mental distress even though he was not physically harmed at any stage.  Most of the incidents involved the threat of the use of weapons and physical harm, although no actual harm was caused to the 1^st applicant himself, however he says he witnessed harm to others including people being beaten and shot in the legs. The 1^st applicant did attempt to report these lesser incidents to the police but he believed that the police did not progress his complaints because they were connected to the UPFA.  He had no proof that they had not been progressed.  The single time that the police came to his home (as a result of a complaint against him), they waited for him to return before searching the house and he made no complaint about their behaviour towards him or his family.

6.  The incident which led to the 1^st applicant and his family leaving Sri Lanka occurred in 2009, during the provincial elections.  After attending a public meeting, he believed he had been the target of a shooting which was unsuccessful, although a bystander was wounded.  Unsettled by this, and believing that another attempt would be made to kill him, he went to the local police station.  The police said they were hard pressed for someone to take his statement at that time and asked him to return later.  He did not do so.  He was so terrified of the incident and the possibility of a recurrence, that he immediately left the district and fled to Kandy where he and his family remained in hiding whilst arranging to leave the country.  The family went to Thailand but the expense of maintaining the whole family in hotel accommodation became too great and so he arranged for his wife and children to return to Kandy and remain in hiding whilst he attempted to extend his Thai and then his Chinese visa without success.  He too returned to Kandy and arranged for the family to enter Hong Kong lawfully but thereafter overstayed.

The non-refoulement claim

7.  Under the Unified Screening Mechanism (“USM”), the applicants’ claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicants must establish they have substantial grounds for believing they will be subjected to torture if returned to their home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3 risk, the applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2 risk, the applicants must establish a real risk that they will be arbitrarily deprived of their lives, have a death penalty imposed upon them; or be the victim of genocide or otherwise be deprived of their rights under BOR 2.

8.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicants have established the factual basis of their claim.  The Director and the Adjudicator must then assess the level of harm the applicants say they fear.  Each ground of claim above has a relevant level of risk.  It is for the applicants to establish that they are the subject of such risk.  Under HKBORO, they must show substantial grounds for believing that the harm which they fear is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which they fear.

Decision of the Director

9.  The applicants seek to review the decisions of both the Director and the Adjudicator.  As the applicants have already utilised the channel of appealing the Director’s Decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with[1]. However, out of an abundance of caution, and because the Adjudicator relied upon the several interviews carried out by the Director, the following is of note.  The applicants were legally represented when screened by the Immigration Department.  The Director analysed the applicants’ claim on all applicable grounds over a considerable period of time and several interviews.  He considered a wide range of documentary evidence including video clips which were submitted by the applicants and had several interviews with the 1^st applicant as well as one with the 2^nd applicant on behalf of herself and the children of the family.  He correctly set out the law, key legal principles and made reference to relevant materials including Country of Origin Information.  The applicants were given a further opportunity to state their case more fully in April 2014 and to supplement the evidence before the Director, which they chose not to do although they both underwent a further interview after this date and were not therefore precluded from addressing any issues which had arisen and which may have been a concern to them.

Decision of the Adjudicator

10.  The applicants were also legally represented on appeal.  The Adjudicator analysed the applicants’ claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  That hearing took place over two days.  He set out the law and key legal principles including the burden and standard of proof.  Much of his findings were based upon the view of the credibility of the 1^st applicant, whom he found to be long-winded and evasive.  That view permeated his decision‑making in regard to the allegations made by the applicants and he placed little, if no, weight on the documentary evidence tendered in support of their claim.

Leave to apply for judicial review

11.  Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status.  This is an application to apply for leave to judicially review the decisions of the Director and the Adjudicator.  Given that the Decision of the Director is not susceptible to review, the applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their application in order to obtain leave to judicially review him.

Grounds of review

12.  There were originally 10 grounds of review.  They have subsequently been amended and reduced to three grounds of review, which are as follows.

Ground 1: Incorrect approach to the assessment of credibility

Ground 2: Failure to give adequate reasons

Ground 3: Incorrect approach to primary evidence

Ground 1

13.  This ground of review was further subdivided into two basic complaints, which I have summarised as:

i.     the Adjudicator relied upon wholly irrelevant considerations when forming a view as to the credibility of the applicants; and

ii.     thereafter he materially misunderstood and/or misapplied the relevant legal principles on the assessment of credibility in asylum claims.

14.  The Adjudicator took the view that the 1^st applicant was long‑winded and evasive.  Thereafter he took a particularly robust view of his evidence, which may at times have appeared to be a little unfair to the 1^st applicant who had maintained his case from the beginning and throughout several lengthy interviews.  I have not had the benefit of the transcript of proceedings before the Adjudicator but it may be that the accumulation of stress wrought upon the 1^st applicant after so many years and with serious family problems, may not have assisted him in putting forward his case in the best possible light.  That being the case, counsel for the applicants argued forcibly that it may be possible that the applicants were not given the benefit of the doubt as to the mental distress they suffered in the circumstances when compared with the lack of evidence of physical harm.

15.  No doubt the transcript will assist the court in this regard and it is at least arguable that some, if not all, of the incidents relied upon, had a seed of truth about them.

Ground 2

16.  The applicants complain that the Adjudicator failed to give adequate reasons for his decision especially as to credibility. It would appear that the Adjudicator went to great lengths to avoid saying, what to him was patently obvious, and that is that he disbelieved the 1^st applicant. It is not incumbent upon an Adjudicator to explain in detail his reasoning on every issue, so long as it is otherwise clear how he came to the conclusions which he did.  His reasoning was clear.  He had the opportunity to see and hear the 1^st applicant and found him wanting.  Nevertheless, it may be that the transcript of proceedings may shed light upon the extent to which the 1^st applicant was indeed or was not, long‑winded and evasive and whether, in all the circumstances, the Adjudicator acted unreasonably in coming to the conclusion on credibility which he did.

Ground 3

17.  The applicants maintain that the Adjudicator approached primary evidence incorrectly and suggest that a sworn affidavit/affirmation should be accepted as prima facie evidence of truth subject to rebuttal.  This is an interesting issue, which will need to be canvassed on the substantive application.  It is not one I have come across in these proceedings before.  It must be remembered that the applicants bear the onus here even if to a low standard.  At first blush, the suggestion by the applicants is that they satisfy that burden merely by the production of the affirmations.

18.  In addition, the applicants complain about the lack of reliance by the Adjudicator on the substantial documentary evidence placed before the Director and the TCAB.  They submit it was given no weight. Whether that was in fact the case and to what extent, if any, it was properly admissible will need to be canvassed in the substantive hearing.

Miscellaneous

19.  As part of their submissions generally, the applicants were unhappy with the Adjudicator’s rejection in the 2^nd TCAB Decision of the claim by the 5^th applicant in respect of his medical condition, which is ongoing and permanent.  There has been no Form 86 filed and served in respect of the 2^nd TCAB Decision.  It did not form a part of the revised grounds and it may be that the applicants will need to re‑consider and consolidate their grounds for the substantive hearing albeit they need to be aware of the fact that this claim is constrained by the recent Court of Final Appeal judgment in Comilang Milagros Tecson v Director of Immigration FACV 9/2018, [2019] HKCFA 10 dated 4 April 2019.  Nevertheless, there may be other grounds which can be advanced on behalf of the 5^th applicant in view of his condition and I accept this is an arguable issue which should be canvassed.

Conclusion

20.  For the reasons given above, the applicants’ claims are reasonably arguable.  I grant leave to apply for judicial review and make the consequential order attached hereto.   

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