ELIYAS JOUITH MEARL v. TORTURE CLAIMS APPEAL BOARD

HCAL 233/2015

[2018] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 233 OF 2015

Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Leave to apply for Judicial review refused.

Observations for the applicant:

Introduction

1.  This is an application by the Applicant for leave to apply for judicial review, seeking relief to quash the decisions of the Director of Immigration (“the Director”) dated 26 September 2014 and the decision of the Adjudicator[1] of the Torture Claims Appeal Board (“the Adjudicator”) dated 3 November 2015. 

2.   In summary, the basis of the Applicant’s claim is that he fears he will be tortured and/or killed if he is expelled, returned or extradited to Sri Lanka because of threats by certain members of the Liberation Tigers of Tamil Eelam (“the LTTE”) due to a dispute over land (“the Land”).  Additionally, the Applicant fears torture by the Sri Lankan Police because they believe he has connections with LTTE.

Procedural Background

3.  The Applicant is a Sri Lankan national.  He departed Sri Lanka for China on 2 March 2007.  On 3 March 2007, he entered Hong Kong illegally from Shenzhen. 

4.  The Applicant remained undetected in Hong Kong for 1½ years until his arrest on 3 September 2008. 

5.  He lodged a Torture Claim with the Director 3 days after his arrest.  This claim was assessed on all applicable grounds and was rejected by the Director on 26 September 2014.  He consequently filed an appeal/petition to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) on 9 October 2014.

6.  There was a hearing to determine the appeal before the Adjudicator on 3 June 2015.  The Applicant’s appeal was dismissed on 3 November 2015.

7.  On 13 November 2015, the Applicant filed an application for leave to apply for judicial review against both the decision of the Director and that of the Adjudicator.  He has not requested an oral hearing.

8.  The Applicant sought to submit further evidence via a letter to this court dated 4 July 2016.

Factual basis for the Applicant’s claim

9.  The Applicant was the owner of 5 plots of land in Mundal, Sri Lanka. Half were used for prawn farming and the balance remained unused.  From 2005 onwards, he had been approached by various people offering to purchase the Land but the offers were too low.  Some of the unsuccessful buyers were LTTE members. 

10.  In 2006, the Applicant sold the Land to a foreigner named Mr Fortin at an agreeable price.  Transfer of the title occurred in September 2006. 

11.  The Applicant relies on a number of incidents subsequent to the sale of the Land which form the basis of his claim. 

Incident 1

12.  Incident 1 occurred shortly after the sale of the Land.  Two unsuccessful buyers came to him to enquire about the Land and the Applicant informed them that the Land had been sold.  They became angry and threatened the Applicant with “consequences”.  There was no assault and the matter was not reported to the police.

Incident 2

13.  Incident 2 occurred two days later.  The two men returned insisting the Applicant should retrieve the Land and sell it to them.  They uttered death threats but there was no assault and the matter was not reported to police.

Incident 3

14.  Incident 3 occurred two days after incident 2.  The same two men once again returned.  The Applicant was not home at that time.

Incident 4

15.  Incident 4 occurred the same night as incident 3.  Police officers came saying that they wanted to make enquiries from the Applicant.  The Applicant went with them to Mundal Police Station where the police informed him that a complaint had been made by villagers that he had connections with LTTE. 

16.  The Applicant told them about the situation and that he did not know that the unsuccessful buyers were members of LTTE.  He was at the police station for about 2 hours and then released.  There were no threats or mistreatment from the police.  Regardless of this, the Applicant maintains the police will torture him if he were to return to Sri Lanka.

17.  As the Applicant felt afraid, he went to stay with a friend in the neighbourhood for a few nights.  He then stayed with his brother in Kurunthuwatha, Chilaw.  He then paid a Tamil agent for passage out of Sri Lanka intending to go to London.  The following month in November 2006, he flew to Singapore and caught a train to Kuala Lumpur.  He could not obtain a visa to London so returned to Sri Lanka in December 2006.

18.  On 2 March 2007, he departed Sri Lanka again, this time for China. Between December 2006 and March 2007, he did not have any interactions or encounters from the LTTE or the police. 

19.  From Shenzhen, the day following his arrival in China he sneaked illegally into Hong Kong and arrived in Hong Kong on 3 March 2007.

Director’s Decision

20.  In his detailed reasons, the Director assessed the Applicant’s non-refoulement claim on all the applicable grounds under the following headings: 

a) How likely it is that the feared treatment would materialize;

b) Consideration of the claimed BOR3 risk;

c) Consideration of whether the claim calls for persecution non-refoulement; and

d) Consideration of the claimed torture risk under Part VIIC of the Immigration Ordinance.

21.  After an oral hearing where the Applicant was legally represented, the Director concluded in a detailed decision that the Applicant did not meet the required threshold under any of the applicable headings. 

22.  The Director concluded there is no material evidence in his claim that there was any official involvement.  Even if it was assumed the persons were members of the LTTE, they were acting in their own personal and private capacity.  The LTTE people took action over or had a dispute with the Applicant over a piece of land which was a purely private and personal matter within a domestic context in nature.  The Director found that even if the alleged threats were substantiated, there was an absence or low intensity and frequency of ill-treatment from the LTTE members in the past and it is indicative of a small and low future risk of harm upon return to Sri Lanka.[2]

23.  The Director concluded that the threats involved were no more than verbal threats and that the Applicant (nor his wife) suffered injury or severe pain or suffering in the incidents and alleged confrontations. 

24.  There was no severe pain or suffering as defined under ordinance and on various occasions, the Applicant received verbal threats.  Further, there was no evidence of harm or injury had been inflicted on the Applicant on any of the occasions referred to and additionally, no evidence to suggest that the persons who came to the Applicant’s house and administered the threats were members of the LTTE. 

25.  Additionally, the Director found that there was no material evidence in support of the Applicant’s claim that there was any official involvement in the alleged threats against him.[3] The evidence presented clearly indicated that the Applicant was not a target of the Sri Lankan police, government or authorities and none of these bodies had any adverse interest in the Applicant.  The Director, upon taking into consideration the country of origin information (“the COI”) concluded that there is no indication that the bodies will not exercise due diligence to prevent, investigate and punish the LTTE members.[4]

26.  The Director found that the risk of being subject to ill-treatment was low upon the Applicant’s return[5]. The threats made to the Applicant’s wife and family members in his absence were verbal threats and the only evidence of this was hearsay evidence with nothing produced to substantiate the claims. 

27.  The Director reasoned that the LTTE members who sought the Applicant were wanting the Land and not wanting to kill or harm the Applicant and the subsequent sale and development of the Land rendered the chances of the LTTE getting the Land back very slim. 

28.  There was nothing in support of the claim that the police did not follow up the Applicant’s complaints and no danger of being arrested by the police as claimed.  The Director concluded that the fact the Applicant was able to leave and depart through the airport in Sri Lanka freely under the strength of this own passport suggests that there was no government, police or any public authority adverse interest.

29.  Additionally, the Director concluded that there is reasonable and sufficient state protection readily available in Sri Lanka if resorted to.[6]  The Director provided a detailed summary of the COI and in the context of the Applicants assertions found that there exists a fair and proper judicial process available in Sri Lanka.  Further, the authorities are willing and able to offer sufficiency of protection to all citizens.  There was no reason to assume that the Applicant would not be afforded the same protection should he seek assistance from the government authority upon his return.

30.  The Director also concluded that internal relocation alternatives are available and reasonable which further negates the perceived risk.[7] Due to the geographical size of Sri Lanka and the estimated population of the country, as well as the age, work experience and spoken language of the Applicant it is not unreasonable for the Applicant to relocate upon his return to where the influence of the LTTE is of lesser significance. 

31.  As far as the BOR 3 risk, the Applicant failed to substantiate his claim.[8] The Director did not accept that the Applicant faced a genuine and substantial risk of being subjected to ill-treatment under BOR 3 from LTTE or the police upon return to Sri Lanka. 

32.  Additionally, the risk of persecution was not substantiated.  The feared ill-treatment does not fall within the ambit of “persecution” and the alleged dispute was purely personal and private over a plot of land.  The purpose of the threats was for the Land to be returned and the aim was not to kill the Applicant. 

33.  Likewise, the torture risk was not established.  The risk was considered under Part VIIC of the Immigration Ordinance and was found not to amount to “torture” as defined under section 37U(1) as the claimed risk of ill-treatment was deemed to be small and there were no substantial ground for believing that there would be a “genuine risk” of being subjected to torture by the LTTE or other perpetrators[9].

Decision of TCAB

34.  During the TCAB hearing on 3 June 2015, the Applicant gave evidence and was cross-examined.  There were no other witnesses. 

35.  For the torture risk[10], the Adjudicator found the basis of the claim to be sheer assertion and speculation and did not amount to torture. 

36.  The alleged assailants, the LTTE and the police, were not state agents, he was never charged by the police, only held and questioned.  Further, the Applicant was able to depart and re-enter Sri Lanka via proper immigration channels without any problem from the national government or other officials.

37.  Additionally, the evidence did not show any harm or any threat of harm instigated by a “State Agent”.[11]

38.  In addition to and independent of, the Applicant did not receive any injuries and was not physically attacked. This did not meet the minimum level of severity of severe pain and suffering and further, the risk of such in the future is neither foreseeable nor real.

39.  In assessment of the COI in the context of the Applicant’s claims, the Applicant himself at the oral hearing confirmed he did not fall into any of the categories that pose a real risk of serious harm by the LTTE. 

40.  Regarding BOR 3, the Adjudicator found that there were no substantial grounds for believing that the Applicant would suffer severe ill-treatment if refouled and that he does not face a genuine and substantial risk of being subject to such ill-treatment.  Further, as the COI shows there is reasonable availability of state protection. Independent of and in addition to, the Adjudicator found that the Applicant can safely reside in Sri Lanka, at least other than his home locally.[12]

41.  Likewise, the persecution was not established and fell well short of doing so.[13] The Applicant did not suffer any injury, let alone serious harm which would put him into the category of persecution. 

42.  The Adjudicator dismissed the appeal and confirmed the Director’s Decision. 

Grounds Relied upon by the Applicant

43.  The Applicant’s Form 86, Notice of application for leave to apply for judicial review with supporting affirmation states that (1) decisions of the Director and the Adjudicator are Wednesbury unreasonable; and (2) both decision makers failed to properly consider the evidence of the Applicant that his life is in danger and that he would be subject to serious ill-treatment if he were to be returned to Sri Lanka.

Legal Principles

44.  In an application for judicial review, it is the role of the court to examine if the decisions of the Director and/or the Adjudicator are incorrect.  This is not an opportunity for further appeal on the matter. 

45.  This court must examine whether the Director or the Adjudicator in dismissing an Applicants claim has made an error in law in its decision or handled the claim without compliance with the high standards of fairness as required by law as explained in Secretary for Security v Sakthevel Prabakar (2004) & HKCFAR 187). 

46.  Further the court also considers whether the substantive decision satisfied the Wednesbury test of reasonableness AM v Director of Immigration & Anor [2014] 1 HKC 416, 430).

47.  The high standard of fairness required by decision makers is dependent on the circumstances of each case. The standard ultimately comes down to common sense and fairness TK v Jenkins & Anor [2013] 1 HKC 526. 

48.  The hearing of a torture claim places a burden on both the claimant and the Director for a joint endeavour. The Applicant needs to actively prove his claim and not rely on the Director to disprove it CH v Director of Immigration [2011] 3 HKLRD 101.

49.  The test in granting leave for judicial review is whether the judicial review grounds are reasonably arguable with a realistic prospect of success Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, para 14-17.

DISCUSSION AND CONSIDERATION

Reliance on New Evidence in support of claim

50.  The Applicant has submitted further evidence to this court by way of a letter dated 4 July 2016.  These are documents allegedly in support of the Police Case against him from a Sri-Lankan police station. He has sought to rely on police warrants of arrest against him, a letter written from the people in his village complaining against him and a letter from his wife showing concern for him. 

51.  This documentary evidence was not before the Director nor the TCAB.  No basis or reason has been given by the Applicant for the late submissions of these unverified documents.  The hearing for judicial review is not the avenue to submit new or fresh evidence. 

52.  Nevertheless, having said that, even if the evidence submitted on 4 July 2016 was admitted for my consideration the documents do not support or bolster the Applicant’s claims.  It does not support the Applicant’s assertions of risk of harm should he return to Sri Lanka, not does it provide evidence in support of his accusations against those he alleges are intent on doing him harm. 

The alleged warrants of arrests

53.  The documents do not have the hallmarks of an official document, such as a seal, stamp, crest or emblem. These four documents encompass a few lines of manuscript on a bare piece of paper.  It does not identify who the author is, the signature is illegible. 

54.  As an example of one of the documents it says “E. Jovin Mearl come to the Police Station on 25.06/2014 at 9.00 hours. CIB 121/568.  Signed illegible”.   Two documents are requests for the Applicant to go to the police station on 25.06.14 at 9.00 hours and 05.03.2016 at 10 hours.  The other two are a request for the Applicant to go to the police station on 28.02.2016 at 9 am and 28.04.2015 at 9 am for an investigation concerning a complaint.  Remarkably the documents do not even state which police station the Applicant should attend.  It would be an exaggeration for them to be described as arrest warrants. 

The Villager’s complaint against the Applicant

55.  As regards the villager’s letter of complaint to the police it concerns a complaint about environmental pollution caused by the construction of a hotel on the land sold by the Applicant.  A similar complaint was made before and considered by the Director[14]. The TCAB and the Director held that this was a private land dispute.  This letter backs such a finding and hence adds no further support for the Applicant’s claim. 

Leave to apply for judicial review against the Director’s Decision

56.  The Applicant has taken the option available to him of the alternative remedy of appealing to the TCAB.  As a result, judicial review of the decision of the Director is not an option open to him. 

57.  However, for the sake of completeness, I mention that I cannot find that the Director has erred in his application of the legal principles.  He provided a thorough and detailed analysis of the evidence.  The Director did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  There was no procedural impropriety or a failure to adhere to a high standard of fairness.  None of the grounds are reasonably arguable nor do they have any realistic prospects of success. 

Leave to apply for Judicial Review against the Adjudicator’s decision

58.  Turning to the decision of the Adjudicator, the Adjudicator has provided thorough reasons for his decision.  He has applied the correct legal principles and on the applicable grounds. 

59.  The Adjudicator properly considered the evidence on whether the Applicant’s life was in danger should he return to Sri Lanka. 

60.  The Adjudicator found that the Applicant’s appeal under the BOR3 failed as the Applicant had not suffered any injury, let alone severe injury or serious harm.  He found no substantial ground to believe that he will face a future risk of serious harm.  Further the Adjudicator found that even if, which he did not accept, there was a future risk, the Applicant can safely reside in Sri Lanka, at least other than his home locality and the risk of harm if any would not materalise. 

61.  The Adjudicator found the Applicant’s accounts of risk of torture to be neither foreseeable or real, and the Applicant assertion to be speculative[15]. It is worth mentioning that the Applicant himself admitted that in the context of the COI material, he did not fall into any categories of factors that may increase the risk of serious harm should he return. 

62.  Additionally, the Adjudicator was not satisfied that the Applicant’s account to have satisfied the requisite standards of proof.  He found that none of the legal requirements under the applicable headings were satisfied.  

63.  There was no error or procedural impropriety nor can his finding of facts be challenged.  The Adjudicator considered all the evidence carefully, including documentary evidence and COI materials, and was correct in coming to the conclusion that he did.

64.  The Applicant’s complaint against the Director, and basis for appeal to the TCAB, was that he was not allowed to explain himself but only able to say yes or no to questions from the Director and thus deprived of the opportunity to present his case fully.  As there was an oral hearing held by the Adjudicator, and even though the Applicant was not legally represented, the Applicant was given the opportunity to present his case fully.  The Adjudicator was correct in confirming the Director’s decision. 

Conclusion

65.  In conclusion, there is no merit in the grounds for leave to apply for judicial review.  None of the grounds advanced were reasonably arguable to meet the test in Peter Po Fun Chan.

66.  The Applicant’s application for judicial review is therefore refused.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of the application in the light of the respondent’s evidence.

Form CALL-1

[1] William Tam, Deputy Chairperson of Torture Claims Appeal Board/Adjudicator of Non-refoulement Claims Petition Office

[2] Para 46 Director of Immigration’s Reasons

[3] Paras 52-58 Director of Immigration’s Reasons

[4] Paras 57-58 Director of Immigration’s Reasons

[5] Paras 59-65 Director of Immigration’s Reasons

[6] Paras 66-72 Director of Immigration’s Reasons

[7] Paras 73-80 Director of Immigration’s Reasons

[8] Paras 81-82 Director of Immigration’s Reasons

[9] Para 97 Director of Immigration’s Reasons

[10] Paras 6-16 Adjudicators Reasons for Decision

[11] Paras 8-11 Adjudicators Reasons for Decision

[12] Para 26 Adjudicators Reasons for Decision

[13] Paras 27-31 Adjudicators Reasons for Decision

[14] Para 28 Director of Immigration’s Reasons

[15] Para 13 Adjudicators Reasons for Decision