MOHAMMED FAROOK MOHAMMED IFTHIKAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1257/2019

[2023] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1257 OF 2019

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 Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 54-year-old national of Sri Lanka who arrived in Hong Kong on 27 August 2007 as a visitor with permission to remain as such up to 10 September 2007 when he did not depart and instead overstayed, and was arrested by police some 6 months later on 12 March 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by some local gangsters for failing to disclose the whereabouts of his brother whom they claimed to have stolen their money and ran away. The Applicant was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Colombo, Sri Lanka. After leaving school he continued to live with his parents and brother in Colombo, and together with his brother ran a trading business in mobile phones.

3.  However, one day in February 2007 his brother suddenly disappeared without any news, and about one month later some men came to his parents’ home claiming to be local gangsters looking for his brother whom they accused of have stolen their money, and when his parents told them that they had no idea where his brother had gone, those men then threatened his parents that they would kill their other son, i.e. the Applicant if they failed to disclose the whereabouts of his brother, and warned them that they would come back soon and that they should take their threats seriously.

4.  Afterwards his parents reported the threats to the police but nothing appeared to have been done, and 2 weeks later when those gangsters returned, the Applicant fled from his house, and while the gangsters gave chase and fired several gun shots at him, the Applicant managed to make his escape unharmed.

5.  As he was afraid to return to his parents’ home after the shootings, and so the Applicant moved from town to town in his friends’ place, and on 21 August 2007 he departed Sri Lanka for China and then Hong Kong where he subsequently overstayed, and after his arrest by the police some 6 months later he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 2 September 2016 and a Notice of Further Decision dated 14 September 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

7.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local gangsters upon his return to Sri Lanka as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant other than to press for information as to his brother’s whereabouts, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 16 October 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator and with submissions made on his behalf by his lawyer. On 29 March 2019 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.  In its decision the Board found vagueness, inconsistencies and discrepancies in the Applicant’s evidence in important aspects of his claim that it doubted his claim of fear of harm from those local gangsters that caused him to leave his country to come to Hong Kong, which was further undermined by his failure to raise his claim upon first arrival in Hong Kong until 6 months later and only after he was arrested by police, and concluded that none of his claims are credible and that accordingly he had failed to establish any substantial ground for believing that he will face any real risk of harm or ill-treatment upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 9 May 2019 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 in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 64 - 80 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer, and in the absence of any error of law 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 finding of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and according I refuse his leave application.

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