ELIYAS JOUITH MEARL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 173/2018

[2020] HKCFI 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 173 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 September 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.     The Applicant is a 60-year-old national of Sri Lanka who entered Hong Kong illegally on 3 March 2007 and was arrested by police on 3 September 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the Liberation Tigers of Tamil Eelam (“LTTE”) over a land dispute in Sri Lanka.

2.     The Applicant was born and raised in Village Kattakadu, Chilaw, Kurunegala District, Sri Lanka.  After leaving school he farmed in his farmland and later ran a prawn farm business.  He then got married and moved to Village Kattakadu in the same district.

3.     In 2002 and 2003, he bought five plots of land in Village Kattakadu for his prawn farming business and for future investment. In 2005 there were offers from buyers interested in his land, but after he had agreed to sell to a foreign buyer, two men came to him claiming to be members of LTTE, a military organization advocating for the independence of Tamil Eelam and was outlawed by the Sri Lankan government, and demanded the Applicant to sell his land instead to LTTE or else there would be serious consequences to him and his family, and when the Applicant just ignored them, these men returned the next day with the same demand and threats.

4.     Several days later the police came to arrest the Applicant for being suspected of having connection with LTTE after he was seen meeting with those two men, and detained him in the police station for several days for interrogation before releasing him without charge.

5.     As a result the Applicant became fearful of the LTTE’s threats and the police’s investigation, he therefore fled to Kurunthuwatha in Chilaw to take shelter in his brother’s home, but when he heard that the LTTE men and the police were still coming to his home looking for him, he decided that it was no longer safe to remain in Sri Lanka, and so with the assistance of an agent he departed in November 2006 for Malaysia intending for London,but when he was unable to get his visa for London, he returned to Kurunthuwatha in Chilaw before departing again in March 2007 for China, and from there he later sneaked into Hong Kong where he upon his arrest raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism,for which he completed a Non-refoulement Claim Form on 4 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.     By a Notice of Decision dated 26 September 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those LTTE men upon his return to Sri Lanka as low due to the absence or low intensity and frequency of past ill-treatment from them, that there was no reliable evidence that they were from LTTE or had any real intention to harm the Applicant, that it was doubtful that after all these years that they would still have any adverse interest in him, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, that there was also no reliable evidence to suggest that he was still being investigated or pursued by the police after his release and given the fact that he was able to leave the country twice without any problem, 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 21 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Sri Lanka away from his home district in large cities such as Colombo or Kurunthuwatha in Chilaw where he had stayed before without incidents and where it would be difficult if not impossible for those LTTE men to locate him.

8.  On 9 October 2014 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 3 June 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 November 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  On 30 November 2015 the Applicant filed his Form 86 under HCAL 233/2015 for leave to apply for judicial review of the decisions of both the Director and the Board on the grounds that they failed to take proper consideration of his evidence that his life was in danger and that he would be subjected to serious ill-treatment if returned to Sri Lanka,and that their decisions were not Wednesbury reasonable.

10.  On 30 January 2018 his leave application was refused by D’Almada Remedios J upon finding none of his proposed grounds reasonably arguable, that there was no error of law or procedural unfairness by the Director or the Board in their decisions, and that there was no realistic prospect of success in his intended challenge.

11.  Meanwhile on 28 December 2016 the Director on his own initiative wrote to the Applicant inviting him to submit additional facts which may be relevant to his non‑refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

12.  On 9 January 2017 the Applicant responded with a letter in which he provided additional information regarding the issue over the sale of his land, and by a Notice of Further Decision dated 18 January 2017 the Director again rejected his non-refoulement claim including BOR 2 risk upon finding that such additional information failed to advance his case and that the facts of his claim did not engage BOR 2 risk.

13.  On 24 January 2017 the Applicant again filed an appeal to the Board against the Director’s Further Decision.  The Board on this occasion did not conduct any oral hearing and on 29 September 2017 dismissed his appeal and confirmed the Further Decision of the Director.

14.  On 6 February 2018 the Applicant again filed his Form 86 in these proceedings now before me for leave to apply for judicial review of both the further decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

     (1)     procedural impropriety in the failure of the Director and the Board to afford him with an opportunity to present his case in an oral hearing;

     (2)     procedural impropriety in the failure of the Director to conduct any screening interview for his claim under BOR 2 risk and on the part of the Board to make proper enquiry and consideration of the new facts in support of his claim under BOR 2 risk; and

     (3)     error/misdirection in law in the Board’s failure to give proper reasons in its decision and to apply high standards of fairness in assessing his claim under BOR 2 risk.

15.  He was however late with his Form 86 on this occasion, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.  As the three-month period within which the Applicant was to file his application expired on 29 December 2017, he was therefore about five weeks late with his Form 86,and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of five weeks cannot be said to be insignificant or insubstantial, for which he explained that it was due to his application for legal aid and that he was waiting for further supporting documents from Sri Lanka, but documents which he only produced almost one year later on 20 March 2019 which appear to relate to the same issue over the sale of his land back in 2006, and which are dated respectively 16 November 2006, 5 January 2018 and 15 March 2018.

18.  As it is clear that the first two documents could have been obtained well before the date when he filed his Form 86, while the third document was well after, and given the fact that the Applicant having made his non-refoulement claim more than 10 years ago could have obtained these documents much earlier during all these years but somehow for no good reason did not until now, and in the absence of any documentary evidence of his application for legal aid, which even if true could have been made well within the three- month period under the rule, I do not in the circumstances accept that he has provided any valid reason for his delay.

19.  As for the merits of his intended application by reference to his proposed grounds,the first two can be considered together, as they were essentially about his complaint that the Director and the Board assessed and determined his claim under BOR 2 risk without holding any screening interview or oral hearing, but as has been held by the Court of Appeal,there is no absolute right to an oral hearing as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: see ST v Betty Kwan [2014] 4 HKLRD 277.

20.  As noted above, the Applicant did already have a screening interview, and with legal representation, before the Director in his earlier assessment of his claim under torture risk,BOR 3 risk and persecution risk, and also attended an oral hearing in his appeal before the Board, and on both occasion he was able to fully and properly present and articulate his claim based on issues arose from the sale of his land, and on his stated facts and in the light of the scope and threshold of a claim under BOR 2 risk, there is clearly no room for engaging the BOR 2 ground, as had been properly and rightly found by both the Director and the Board in their further decisions.  As such I agree that no useful purpose would be served by a further screening interview or oral hearing, and that the decision of the Director and the Board not to do so did not amount to any procedural unfairness or breach of high standards of fairness.

21.  Nor could the Applicant in my view advance his case any further under the BOR 2 risk ground which he would have put before the Director or the Board at an oral hearing,with or without those additional documents referred to above, even ignoring the fact that they do not appear to have been authenticated or notarized, or why they were not presented much earlier before the Director or the Board.  As such these grounds are not reasonably arguable.

22.  As for his complaint under Ground (3) that the Board failed to give proper reasons for his decision regarding his claim under BOR 2 risk or to apply high standards of fairness in assessing his such claim, the Applicant was factually incorrect, as the Board clearly did properly assess his claim under BOR 2 risk and gave its reasons for rejecting/dismissing his appeal on this ground as set out in §6 – 8 of its further decision, and for the reasons already given above, I do not find any basis or merits in this complaint of the Applicant.

23.  Accordingly I do not find any of the Applicant’s grounds reasonably arguable, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I 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.

24.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reasons for his delay, I refuse to extend time and accordingly his application is dismissed.

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