MOHAMMAD FALEEL ASADHORE alias MOHAMED FALEEL ASADHORE alias ARCHCHEGE THEWANKAC CHANDRASOMA MAPETEGMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2061/2018

[2022] HKCFI 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2061 OF 2018

 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.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant first came to Hong Kong on 28/4/2001. He overstayed and was arrested by the police on 10/9/2001. He was sentenced to imprisonment for 15 months.[1] He was deported to Sri Lanka on 15/7/2002 after serving the sentence.

2.  He last returned to Hong Kong on 21/7/2005 with a Sri Lankan passport under another identity [2]. He was arrested by the police for breach of a deportation order on 13/9/2006. He was sentenced to imprisonment for 8 months. He filed a torture claim on 25/9/2006. He submitted a questionnaire on 12/3/2007.

3.  On 25/7/2012, he was required to file a questionnaire under the enhanced screening procedures.[3] He failed to return the questionnaire after the deadline. Despite repeated extension of the deadline, he failed to give instructions to the DLS. The Director treated his claim as withdrawn on 25/12/2012. There was no appeal.

4.  On 31/1/2013, he filed the present non-refoulement claim. The Director informed him that he would only be assessed on BOR 2, BOR 3 and persecution risk under the USM. After extension of the deadline for several times, he finally submitted the “SCF” on 2/11/2016. Eventually, he was released from CIC on 6/12/2016. The DLS was only able to contact him on 11/8/2017.

5.  He was sick and failed to attend the interviewed scheduled on 21/9/2017. The Director requested him to furnish written clarification of information. He submitted the written answers on 9/10/2017.

Background

6.  The applicant was born on 13/4/1978 in Badulla, Uva province, Sri Lanka. He had education up to Form 5. He was a salesman in a financial company from 1997 to 1998. He was single. His stepmother and step sister died in the tsunami in 2004.  

7.  He considered himself a Christian although he belonged to the minority group of Tamil speaking Muslim. His biological mother had left him during early childhood. He was raised by his father and step mother.

8.  He asserted that there was discrimination in Badulla. He was expelled from the school football club and dismissed from his job as he was non-Sinhalese.

9.  Due to the civil war, there was detention of members and suspect supporters of LTTE [4] in Badulla. There was tension between the Muslim and the Sinhalese. Although he was not detained, he however had difficulties with the military and the police during identity checks. His name indicated that he might be of Tamil or Muslim origin. He was often suspected of having links with the LTTE. He was assaulted by the police during some interrogations.

10.  Since mid-1997, he was arrested by the police because of his ethnic origin in Badulla. On the advice of his father, he moved to live in Hambantota.

11.  His father was a successful tour guide and a member of the “JVP”.[5] He had no idea of his father’s political activities. He only remembered photographs depicting his father with the leader of “JVP” during propaganda activities. All his documents were kept by Father John.[6]

12.  Michael was a strong business competitor with his father. Michael was a member of the “UNP”.[7] Michael was a close associate of “Sajith” who was a member of the Parliament in Hambantota District. Michael tried to make use of his political ties to dominate the tour business. In 2001, the applicant’s father was once attacked by the men from Michael. His father was stabbed at the back and hospitalized for a week. He did not report to the police. He thought the business competition had some political overtone. He was a vulnerable target being a young male of a minority community.

13.  About 27/4/2001, his father arranged him to go to Hong Kong accompanied by a friend “Amal”.  In Hong Kong, “Amal” took him to lodge an application for protection with the UNHCR [8]. He encountered no problem leaving Sri Lanka. While in Hong Kong, he picked up an identity card at Kowloon Park. The police found it during a body search. He was convicted of possession of the identity card and imprisoned. He was sent back to Sri Lanka on completion of his sentence in July 2002.

14.  After he was sent back to Sri Lanka, his father was suspected of attacking the youngest son of Michael. His father fled leaving him with his step mother and step sister. That night, six men in plainclothes went to his home. He escaped. He returned home the next morning, he found his step mother was assaulted with bruises and burnt marks over her body. His step sister was raped. He took them to the hospital for treatment. He made a report to the police but was ignored. He did not complain to higher authorities.

15.  The following day, he and his friends were attacked by the eldest son of Michael and his men on the main road. They assaulted him with fists and poles. He had a dislocated elbow. His left leg was put in plaster cast. He was hospitalized for one day. It took him 3 months to recover. He did not report to the police.

16.  He later learned from the fiancé of his step sister that a warrant was issued against him for attacking the youngest son of Michael. He did not clarify with the police.

17.  After discharge from the hospital, the fiancé of his step sister drove him to Hasalaka Village in Mahiyangana District to have treatment of his elbow in a native treatment center. He recovered in 3 months. It was also safe there as the village was far away from Hambantota. He later went to Seeduwa[9] to stay with a friend of his step mother. During that period, the eldest son of Michael had come and asked about him. Eventually, her biological mother arranged him to stay with her friend in Ragama. He came to know Father John at a church there.

18.  On 26/12/2004, a tsunami struck Hambantota and killed his step mother’s family. He was very upset. Father John helped and partly financed him to come to Hong Kong in July 2005. He used a passport under another name [10] supplied by the agent. There was no problem leaving Sri Lanka and entering Hong Kong.

19.  The government of Sri Lanka was corrupt and would not protect him. He did not think the Red Cross could help him to get over the trauma of the tsunami.

20.  If refouled, he would be interrogated by the police about the attack of the youngest son of Michael. They would also investigate the use of another’s identity. There would not be any support from his family who had died in the tsunami. He would still be psychologically disturbed because of the trauma. There was lawlessness and arbitrary killing due to the civil war.

The decision of the Director

21.  The Director pointed out the following important aspects:

a.     He asserted that he was discriminated by the Sinhalese in Badulla. His name had caused him trouble with the police. However, there was no violence inflicted on him, by the Sinhalese majority or the police, which reached a minimum level of severity.

b.     His father was attacked in 2001 but could recover in a week. His step mother and step sister was also attacked but needed no hospitalisation. He was also attacked by the eldest son of Michael and only hospitalised for one day. He could then go to a faraway place—Hasalaka Village—for native treatment. He was safe there for 3 months in convalescence. Judging from the treatment and the injuries, the risk of harm to him and his family was not imminent.

c.     He could move to other places, such as Hasalaka Village, Seeduwa and Ragama without any problem from the Sinhalese, the police or Michael. He could go a church and get to know Father John. There was no evidence that Michael and his associates could locate him anywhere in the country.

d.     The warrant in relation to the false allegation of his attack on Michael’s youngest son was based on hearsay. The fiancé of his step sister heard from ‘people in town’. He had not clarified with the police. He claimed the warrant was with Father John but it was never produced to support this assertion.

e.     He was never arrested by the police. He could leave Sri Lanka twice without any problem. According to the applicant, he used the false identity to increase the chance of being permitted to stay in Hong Kong. It was not for avoiding detection by the Sri Lankan authorities on departure. There was no evidence that he was targeted by the authorities.

f.     While he was suspected to have attacked Michael’s youngest son and used a false identity, these charges should be dealt with in fair legal proceedings which was available according to the COI. At this stage, the applicant was a fugitive from justice. He would not be entitled to non-refoulement protection.   

g.     It was pure speculation that his father was involved in politics. The evidence could only show that his father was a supporter of “JVP”. Similar speculation was also on the association of Michael with “UNP” and “Sajith”. There was no evidence that the government acquiesced the illegal conduct of Michael and his eldest son.

h.     There was no evidence that Michael attacked his father because of politics. It was probably due to the competition in business. There was no State involvement.

i.     There were problems of corruption, ineffective legal system and law enforcement, unsatisfactory prison condition and violation of human rights in Sri Lanka. There was ethnic dispute. However, there were reforms to improve police competence. The Human Rights Commission and National Police Commissions were established to tackle police misconduct and human rights violations. New PTA[11] was drafted which complied with international human rights standards. The government had taken steps against officials involved in abuse of human rights cases. A Rapid Response Unit and a committee were established to visit police station or place of detention immediately on complaint of torture. There were prison reforms. A fair and proper judicial system was in place in Sri Lanka.

j.     The LTTE had been rendered combat ineffective since 2009. The government had taken steps to control ethnic and religious conflicts. The Office of National Unity and Reconciliation was established to implement healing process in war affected communities. Only persons who held significant roles in the LTTE would be vulnerable of persecution. There were trainings for the police to handle abuse of women, children and domestic violence. There was no evidence that the government acquiesced the criminal acts. There was reasonable State protection.

k.     The ICRC[12] had partnership with local organisation to provide counselling and support services to survivors of the tsunami. Most districts in Sri Lanka had mental health unit within hospitals. There were NGO providing trauma therapy. There was no evidence that the applicant would not be able to obtain appropriate medical care.

l.     The law allowed internal relocation in Sri Lanka. There were relocation options such as Colombo, Hasalaka Village, Seeduwa and Ragama. The applicant was safe while staying in those places. Given that Sri Lanka was a large country with large population, it would be difficult for his enemies to locate him. It would not be unduly harsh for him to relocate.

22.  Given the above, the Director did not accept there was any real risk of harm. The Director rejected his claims on BOR 3, BOR 2 and persecution grounds on 17/11/2017.[13]

The decision of TCAB

23.  There were 2 oral hearings held on 31/7/2018 and 1/8/2018. The applicant adopted the information in the Hearing Bundle.[14] The adjudicator opined that he was entitled to consider the content of the 1^st questionnaire and CAT interview albeit they were not made with the assistance of a lawyer.[15] The adjudicator also assessed the claim on all applicable grounds.[16]  

24.  The adjudicator noted the following points:[17]

a.     The applicant accepted that the political situation in Sri Lanka had changed since he left in 2004. He no longer feared any harm by reason of his parents’ Muslim Tamil origin. Nor was he in fear that he would be suspected of supporting the LTTE. He did not fear any harm due to his father’s political affiliation with the “JVP”.

b.     The applicant was not in fear that he was a Catholic despite he grew up being a Muslim. He had no fear due to his religion.

c.     The adjudicator pointed out that the applicant’s tragic family circumstances arising from the tsunami were not a ground for non-refoulement protection.

d.     The adjudicator found that the applicant had abandoned the risk of harm based on his ethnicity as a Tamil, his change of religion from Islam to Christianity, his father’s affiliation to “JVP”, his suspected connection with the LTTE and the deaths of his step mother and step sister.

25.  Further, the adjudicator noted the following inconsistencies in the factual bases of the applicant’s claim:[18]

a.     About the warrant

 i.     During the TCAB hearing, the applicant asserted that he was wrongly accused of attacking the youngest son of Michael. He had never seen the warrant. His step mother told him about the warrant.

 ii.     It was inconsistent with his SCF, the applicant mentioned that it was the fiancé of his step sister who told him about the warrant.

 iii.     The applicant explained that both his step mother and the fiancé of his step sister told him about the warrant as they lived together.

 iv.     If there was a warrant, the adjudicator doubted why the applicant was not arrested from August 2002 after the attack to July 2005 when he left Sri Lanka.

 v.     The applicant told the adjudicator that he was in contact with the authorities to locate his step mother after the tsunami in 2004. He must have disclosed his identity to the authorities and would have been detained if there was an outstanding warrant.

 vi.     The adjudicator doubted whether there was any warrant.

b.     The timing of the attack on Michael’s youngest son.

 i.     In the 1^st questionnaire, the applicant asserted that the alleged attack occurred before he departed Sri Lanka in 2001. It was the reason for his leaving Sri Lanka.

 ii.     This was inconsistent with his evidence in the SCF set out in paragraphs 12—14 above. The attack occurred in 2002 after he served the sentence in Hong Kong and deported to Sri Lanka.

 iii.     The applicant only accepted the inconsistency when the 1^st questionnaire was shown to him by the adjudicator.

c.     The attack on his step mother and step sister.

 i.     There was no mention in the 1^st questionnaire and CAT interviews that his step mother was assaulted and his step sister was raped. This incident was first mentioned in the SCF.

 ii.     The applicant explained to the adjudicator that he was shy to mention these sensitive facts as the interpreter at the interview was a female. Besides, he was never asked whether his step mother and step sister suffered any harm.

 iii.     The adjudicator did not accept this explanation. This incident was an important background in support of his claim.

d.     The false identity.

 i.     The applicant returned to Hong Kong with a passport bearing a false identity. He knew if he used his true identity, he would not be able to enter Hong Kong.

 ii.     The adjudicator opined that the false identity was not to evade detection by the Sri Lankan authorities because of the warrant.

 iii.     The adjudicator further doubted the existence of an outstanding warrant.

26.  Given the above inconsistencies and the unsatisfactory explanation, the adjudicator rejected the assertion that there was an outstanding warrant against the applicant. The adjudicator also rejected the other factual bases. He concluded that the applicant had fabricated the bases of his claim.

27.  The adjudicator further considered that by using a passport of a false identity, the applicant would be likely prosecuted for a breach of the IAEA[19]. He would likely face a fine not imprisonment. He would be able to obtain bail. There was no real risk of lengthy pre-trial detention. There was no real risk of torture. In addition, the allegation that Michael would use his influence to influence the trial could not stand. The adjudicator had rejected that bases already. The likely prosecution would not be sufficient to establish a BOR 3 risk.[20]

28.  The adjudicator dismissed all claims on 20/8/2018.

Judicial review

29.  The applicant applied for leave for judicial review on 27/9/2018. In his supporting affirmation, he stated that he was not satisfied with the TCAB decision.

30.  In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

31.  The applicant had not pointed out any specific error in the decision of the TCAB. 

32.  I agree that the adjudicator was entitled to consider the content of the 1^st questionnaire and the CAT interview despite that he was not assisted by a lawyer. At that time, the applicant was expected to set out the full factual background of his claim. This exercise did not involve construction of any legal term or law. His recollection should be clearer than the time of the subsequent SCF. The presence of a lawyer would not assist his recollection. In fact, the applicant was given a copy of the 1^st questionnaire and CAT interview. He was allowed ample time to explain the inconsistencies during the TCAB hearing. Although the applicant elected not to rely on those documents later, he had not given any reason which could discount the accuracy of the information therein.

33.  The adjudicator was also fair to consider the torture risk on the merits. I agree with his decision. In my judgment, there is no error of law or procedure. The TCAB decision is rational.

Conclusion

34.  The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

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