MOHOMED RAHOOF MOHOMED SAJAHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2216/2018

[2022] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2216 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Sri Lanka.  He entered Hong Kong illegally on 27 July 2006.  On 31 January 2007, he was arrested by the police. He had previously made a torture claim but was rejected.  The subsequent petition was also dismissed on 22 June 2012.  On 8 April 2013, he further lodged a non-refoulement claim.  As a result, his non-refoulement claim was assessed by the Director on all applicable grounds other than the ground of torture risk[1].

5.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Priyantha and Sudu Mahatiya (“Sudu”), as well as the triad members in Maligawatte.  According to the applicant, in Sri Lanka, the Sinhalese of Buddhist religion were the predominant group.  They were hostile against other religious groups, including Tamil-speaking Muslim which the applicant belonged to.  They were also well connected to the politicians and attempted to eliminate their dissidents.  In 2004, the applicant engaged in a gangsters’ fight, in which he was wrongly identified by Maligawatte members as from the opposite side.  He was kidnapped by Maligawatte members but he luckily escaped.  Later in 2005, there was conflict between Sinhalese Buddhists and Tamil Muslims.  The conflict led to damage in the properties of the Muslims. One day, his mother told him that the Sinhalese broke into his family home. Rushed home immediately, the applicant met and was assaulted by Priyantha and Sudu for being a troublemaker.  Not only did the police refuse to help him but they assaulted him.  Out of fear, he eventually fled to Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 14 of the Notice of Decision dated 7 April 2017 by the Director (the “Director’s Decision”) and paragraphs 7 to 17 of the Board’s Decision as described below.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.     risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR 2 risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director refused to accept that he would face real risk of harm upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [21]-[24]; (ii) state protection would be available to him [25]-[32]; (iii) there was no evidence showing that the applicant and his family, as Muslims, were targeted by the Sinhalese Buddhists because of their race or religion until the alleged incident in 2005.  Nevertheless, both the applicant and his sister were unharmed in that incident [33]; and (iv) internal relocation was also an option open to him [34]-[38].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 9 May 2018, the Board held an oral hearing for his appeal, during which he gave evidence before the Board.

9.  The Board explored the material aspects of the applicant’s claim with him [42]-[69].  During the hearing, the applicant confirmed that his source of fear did not come from the underworld gangsters but from his status as a Tamil Muslim [57]. 

10.  Having considered the applicant’s evidence, the Board made the following findings.  Firstly, the applicant’s alleged risk of harm from Priyantha and Sudu was speculative [75]-[81].  Secondly, on the applicant’s own evidence, the alleged risk of harm from the gangsters no longer existed [82]-[85].  Thirdly, while the Board accepted that there were conflicts between Buddhists and Muslims, there was no evidence suggesting that the applicant was a target of the conflict.  Further, the country of origin information (“COI”) showed that the government was taking steps to solve these conflicts [86]-[92].  Fourthly, the applicant’s alleged fear of being a suspect of damage to a Buddhist Shrine did not warrant any non-refoulement protection as there was no charge laid against him and, if any, he would be able to defend such charge [93]-[94]. Fifthly, COI did not support the applicant’s assertion that he would face real risk of harm as a Tamil in Sri Lanka [95]-[97]. 

11.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.  

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said he was threatened by his enemies and it was not safe to return to his country. He would obtain documents from his country including hospital treatment certificate for the court.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had had a fair hearing before the Board and he had nothing to say.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

17.  The documents the applicant mentioned in his affirmation are still not available. However, they are not useful to challenge the Board’s Decision. The applicant has not raised valid grounds to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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