WPRK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2413/2019

[2025] HKCFI 2438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2413 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 counsel for the Applicant in open court;

1.   Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

2.   The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

3.   Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:         

A.   Introduction

1.  By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 9 July 2019 (“Board’s Decision”). In the Board’s Decision, the Board dismissed the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 11 January 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court fixed a hearing on 7 January 2025.  As the applicant was granted Legal Aid on 6 January 2025, the hearing was adjourned to 11 March 2025 to allow more time for the applicant’s assigned solicitors and counsel.

3.  Before the hearing, this court granted leave to the applicant to amend his Form 86 (“Amended Form 86”) and received 2 volumes of hearing bundles (“HB”) together with written skeleton submissions (“Skeleton”) of Ms Isabel Tam, the applicant’s Legal Aid assigned counsel.

B.   Background

4.  The background as taken from the Director’s Decision and the Board’s Decision as well as the Amended Form 86 (§§7 to 31) can be briefly stated as follows.

5.  The applicant, an ethnic Sinhalese, was born on 12 March 1972, and grew up in Hambanthota District, in the Southern region of Sri Lanka. According to the “Immigration History” stated in the Director’s Decision, the applicant travelled to Hong Kong as a visitor in around 1996/1997 on his Sri Lankan passport.  Before the expiration of the permitted period of stay, he went to Mainland China for the extension of his visa.  However, when he returned to Hong Kong after his visa extension, the applicant claimed that he had lost his passport and air ticket. He then overstayed.  On 3 January 2006, the applicant applied to the Office of the United Nations High Commissioner for Refugees (“UNHCR”) to claim for the grant of a refugee status, which application  was rejected on 2 January 2008: See the Director’s Decision §8.49 footnote #29.

6.  On 11 July 2013, he was arrested by police for the offences of possession of an identity card relating to another person and breach of condition of stay. He was later acquitted of the offence of possession of an identity card relating to another person.  

7.  On 9 August and 10 September 2013, the applicant submitted two representations in respect of his non-refoulement claim, which claim was assessed by the Director on all applicable grounds – the risk of torture^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM^[5]. The claim was based on a fear that if refouled, he would be harmed or killed by the Sri Lankan authorities, due to his past political involvement with Janatha Vimukthi Peramuna (“JVP”), and the forced confession he signed admitting involvement with the death of President Premadasa (“President”).

8.  The applicant stated that he joined the JVP in 1986 when he was still a secondary school student at the age of about 13 or 14. At that time, due to the government’s adverse educational policies and unfair treatment of students in village areas, there were attacks by the Sinhalese on the Tamil minority (from which the Liberation Tigers of Tamil Eelam (“LTTE”) drew its membership).  After the applicant had witnessed these attacks and the failure of the Sinhalese government to take action, he decided to join JVP.

B.1  First Arrest and torture: August 1989 to January 1990 (4 months) (“1^st Episode”)

9.  After his graduation from secondary school in 1988, the applicant continued to be actively involved with the JVP, whose power base became stronger in the southern and central provinces. The government started to arrest and torture suspected JVP members.  In 1989, the President came to power. Subsequently the leader of the JVP was captured, and killed by the military in November 1989. In August 1989, many of the JVP members including the applicant went into hiding in the jungle.  After a week in hiding, the applicant came out from hiding.  On his way home, the applicant was arrested and detained by the military for about 4 months until January 1990.  During the period of detention, the applicant claimed that he was tortured on a daily basis.

B.2  From January 1990 to May 1993

10.  After his release from detention, the applicant left his hometown in the South and moved to Colombo to stay with his uncle. In 1990, when the ban on the JVP ended, the JVP became an influential left-wing political party. In December 1990, the applicant rejoined the JVP and became its publicity secretary. The government started to crack down on the JVP activists because of the demonstrations organized by the JVP in opposition to the government’s policies towards LTTE and the Tamils.

B.3  Second Arrest and Torture: June 1993 to August 1994 (15 months) (“2^nd Episode”)

11.  On 1 May 1993, the applicant participated in the Labour Day parade. The President and his bodyguards were killed in a bomb explosion. The applicant had nothing to do with the incident but he was still arrested by the security forces in connection with the bombing.  The applicant was falsely accused of having been involved with the bombing assassination.  The applicant stated that during 15 months in detention, he was frequently tortured at night about once every 4 days.  In September, after the applicant had signed a confession statement admitting to his involvement with the death of the President, the military released the applicant on bail with weekly reporting conditions to the local police. He was also required to stay outside the jurisdiction of Colombo.

12.  Shortly after the applicant’s release from detention, bombings occurred throughout the country towards the end of 1994.  A state of emergency was declared. As the applicant feared that his bail would be revoked because of the political chaos, he decided to leave the country. To avoid the risk of the applicant being stopped and detained, the agent advised him to make a slight change to the name on his passport. Hence, the name as appeared in his passport, “WIJEMANNA RANJITH PRABHA KEERTHI” (“Altered Name”), is slightly different from his name, VEJEYAMANNA RANJIT KEERTHI.

13.  In the Director’s Decision, the Director did not consider the applicant’s claim credible, and concluded that the applicant did not face any risk of harm.  After the Director’s refusal of his claim, the applicant appealed to the Board.

C.   Board’s hearing and the Board’s Decision

14.  Before the hearing scheduled to take place on 16 October 2018 before the Board, the applicant’s new counsel assigned by the Duty Lawyer Service served on the Board a “Notice of New Evidence” dated 12 October 2018, enclosing 7 new documents. Among the enclosed documents was a psychological report dated 10 October 2018 (“Report”) prepared by a psychiatrist, Dr Liu Kwong Sun (“Dr Liu”).

15.  On 16 October 2018, the applicant attended a hearing before the Board with his counsel, and answered questions raised by the Board with the assistance of a Sinhalese interpreter. A Government Counsel represented the Director.  

16.  In assessing the applicant’s capacity to give evidence, the adjudicator for the Board (“Adjudicator”) noted the diagnoses of “Enduring Personality Change After Suffering from Catastrophic Experience” (“EPCACE”) and “Post-traumatic Stress Disorder” (“PTSD”) stated in the Report. The Adjudicator found that the applicant was able to properly and fully engage in the hearing process. It was therefore concluded that the applicant did not suffer any vulnerability due to his mental health. The Adjudicator noted that the applicant only sought medical treatment while he was detained in the Lai Chi Kok Reception Centre, but not before. The Adjudicator therefore believed that the applicant obtained the Report for the sole purpose of painting himself as a vulnerable person. The Board therefore gave very little weight to the Report: Board’s Decision §§44-46, HB 91.

17.  When assessing the applicant’s credibility, the Board stated[6] that it was not in a position to disbelieve the applicant’s account of past events in relation to the 1^st and the 2^nd Episodes.  It was further accepted that the applicant “did experience severe harm in 1989 [the 1^st Episode] and may have been detained in 1993/1994 [2^nd Episode]”[7].  

18.  As for the applicant’s evidence (“Post-Detention Evidence”) in relation to the events after the 2^nd Episode,   the Adjudicator found that the evidence was “vague and did not strike [it] as a lived experience”[8]. Referring to the applicant having used a “false passport” to depart from Sri Lanka notwithstanding that the Altered Name was only slightly different to the applicant’s real name,  the Board found that the applicant was dishonest. The Board also considered the fact that the applicant only left in mid-1996 when he had been issued with the passport in around February 1995. The Board found that this delay in departure and his later delay in the raising of the non-refoulement claim was inconsistent with his asserted fear of harm. It concluded that since the applicant’s release from detention, there was “no harm visited upon [the applicant] since then up until the time he departed Sri Lanka”; and that the applicant had not subjectively feared harm or felt that he was at risk of harm.

19.  The Board also found that the applicant was able to depart Sri Lanka without any problem, and therefore concluded that there was no adverse interest to the authorities of Sri Lanka. The Board considered the Country of Origin Information (“COI”) from the Australia’s Department of Foreign Affairs and Trade Report (“DFAT”) (23 May 2018) to reach its conclusion that the applicant would not be subjected to prolonged detention or harm upon his return to Sri Lanka.  

20.  Having concluded that the applicant would not be at real risk of experiencing any types of harm, the Board rejected the applicant's appeal to the Board against the Director’s Decision.

D.  Legal principles applicable to judicial review

21.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

22.  When assessing a non-refoulement claim, a decision-maker/the Board is required to adopt  “high standards of fairness”[9], which encompasses the obligations, among others, to :

(i)    Apply “anxious scrutiny”[10] . A decision-maker/the Board should adopt a fair procedure in reaching a rational decision[11]  by giving a claimant/an applicant every reasonable opportunity to establish his claim.

(ii)   Consider all relevant considerations[12], including taking into account every factor that might tell in favour of a claimant/an applicant[13].

(iii)  Adopt an active role by drawing attention to a claimant/an applicant “matters that needed clarification or elaboration so that they can be addressed by” the claimant/the applicant. This is important, as a decision-maker/the Board cannot assume that a claimant/an applicant can foresee all the points troubling a decision-maker/the Board[14].

(iv)  Give a claimant/an applicant a reasonable opportunity to address any issues that may result in adverse credibility findings, so that a claimant may address the case against him.[15]

(v)   Evaluate information that goes “beyond the testimony of the applicant and include[s] in-country reports, expert testimony”, and attach weight to everything that is capable of having a bearing, be it great or little.[16]

(vi)  Conduct the credibility assessment with a structured approach in relation to detail, specificity, internal consistency and consistency with a basis or foundation in the evidence[17] by looking at the applicant’s case in the round[18].

23.  I will apply the above principles when considering the Leave Application.

E.   Applicant’s grounds of review

24.  In the Amended Form 86, the applicant advanced 7 grounds of review. For brevity, I will set out only the headings of each ground stated in the Skeleton. For easy identification, I will also underline the relevant public law errors stated in the headings.

(1)  Procedural unfairness and error of law: the Board’s rejection of the Report.

(2)  Irrationality: the Board’s finding of the lack of sufficient evidence to establish that the applicant was an LTTE sympathizer or was involved in the assassination of the President.

(3)  Error of law and Irrationality: a finding that the applicant will not be subjected to prolonged detention or harm.

(4)  Procedural unfairness and error of law: the Board’s approach in disbelieving the applicant’s Post- Detention Evidence.

(5)  Procedural unfairness: the Board’s drawing of adverse inference based on the applicant’s “delay” in raising the non-refoulement claim.

(6)  Procedural unfairness and Irrationality:  the drawing of adverse inference on the applicant’s passport.

(7)  Procedural unfairness, error of law and Irrationality: findings drawn from the applicant’s ease of departure from Sri Lanka.

25.  Broadly, the above 7 grounds relate to (i) the Board’s findings and assessment of the applicant’s past events of torture and ill-treatment or mass violations of human right (grounds 2 and 4); (ii) the Board’s drawing of adverse inferences against the applicant (grounds 5, 6 and 7); and (iii) the Board’s conclusion of the future risk (grounds 1 (subject to the discussion of the relevance of the Report in Section 3.1 below)). To facilitate discussion, I will categorize them into 3 broad grounds respectively described as the past events ground (“Past Events Ground”); adverse inference ground (“Adverse Inference Ground”), and future risk ground (“Future Risk Ground”).

E.1  Past Events Ground (applicant’s grounds 2 and 4)

26.  Under this broad ground, the applicant submitted that the Board’s  assessment  (Board’s Decision at §48) of the Post Detention Evidence as being “vague” and not a “lived experience”[19] is contradictory to the Adjudicator’s acceptance of the applicant’s evidence of past events including the 2^nd Episode.  It was submitted that before the Board disbelieved the applicant’s evidence and found that there was insufficient evidence to establish that the applicant was an LTTE sympathizer or was involved in the assassination of the President, the Adjudicator would be required to take into account all the relevant factors, including the “reasonableness of the facts alleged, the consistency and coherence of the story, any corroborative evidence in support of statements, consistency with common knowledge or general known facts and the known situation in the country of origin”, and that “[c]redibility is established when the claimant has presented a claim that is capable of being believed”: KZ v Torture Claims Appeal Board [20].

27.  When rejecting the Post-Detention Evidence, the Board would be required to provide adequate and clear reasons instead of merely stating its conclusion: see Capital Rich Development Ltd[21], and HK v Home Secretary[22]. Should the Board believe that the Post-Detention Evidence matter was vague, and not “lived experience”, procedural fairness would have required him to ask the applicant to provide more details.

28.  However, the applicant contended, the Adjudicator had failed to do so, and had failed to correctly assess the overall credibility of the applicant, relying on KZ (supra.)  [23]; MS v Torture Claims Appeal Board[24]  ;HK v Home Secretary[25];JB (DR Congo) v Home Secretary[26]; and Capital Rich Development Ltd v Town Planning Board [27].

29.  The applicant therefore argued that the Board’s rejection of the Post-Detention Evidence is irrational, procedurally unfair and in error of law.

E.1.1  Discussion

30.  In examining if the Board has adopted the correct approach in accordance with the established principles discussed above, I think it would be necessary to consider the transcript of the Board hearing (“Transcript”), in particular the portion of the Transcript[28] concerning the Post-Detention Evidence the applicant gave at the hearing before the Board . According to the Transcript,   the Adjudicator had questioned the applicant as to whether he experienced any troubles after he was released. He also asked the applicant whether the applicant’s assertion that he had been told that charges would be filed against him was based on his belief.  After the applicant gave the response that his assertion was based on what he had been told, the Adjudicator did not tell the applicant that he found this part of the applicant’s evidence to be vague. The summary of this part of the evidence also appears in the Board’s Decision at §31.

31.  In my view, the Adjudicator seems to have fallen into the similar error identified in JB (DR Congo). Like the JB (DR Congo) case, the Adjudicator in this case “has given no indication about the areas in which he found the [applicant] to be vague. Given that the [applicant] appeared before him, if he had thought that the [applicant] needed to give more detail than he had, he should have sought such details and if the [applicant] had not provided the detail then the Adjudicator could properly have concluded that he had been evasive in his evidence” : JB (DR Congo) at §7.

32.  By merely stating that the applicant’s evidence as “vague” and not

“lived experience", it would appear that the Adjudicator had erroneously applied his subjective common sense. The applying of a decision-maker’s own common sense in non-refoulement claims has been disapproved in ST v Betty Kwan[29] (which was later followed in TI v Winston Leung[30] at §61). A decision-maker is not entitled to make his or her own assumptions, conjecture or speculations as to what ought to have happened: TI [31] at §61.

33.  In light of the lack of meaningful assessment of this portion of the applicant’s evidence, the lack of reasoning for rejecting this evidence and the fact that the Adjudicator has apparently applied his own common sense or assumptions in taking the view that this evidence did not strike him as a lived experience, I conclude that it is reasonably arguable that the Board’s Decision is tainted by an error of law, procedural unfairness or irrationality, and fails to meet the required high standards of fairness.

E.2  Adverse Inference Ground (Grounds 5, 6 and 7)

34.  The applicant contends that the Board has erroneously drawn adverse inferences on:

(i)    The applicant’s delay in the raising of the non-refoulement claim;

(ii)   The use of a “false” passport as an example of dishonesty; and

(iii)   The unhindered departure for Hong Kong as evidence that the applicant was not a person of “adverse interest” to the authorities of Sri Lanka.

E.2.1  The applicant’s delay in the raising of the non-refoulement claim

35.  As outlined in §§5 and 7 above, the applicant made a claim for refugee status and for non-refoulement protection respectively on 3 January 2006 and in August and September 2013.  From the dates of these applications, I do not think it can be gainsaid that the applicant had issued any of the applications with promptitude.  The periods of delays for the respective UNHCR and non-refoulement application are about 10 and 17 years, which are lengthy by any account. At §49 of the Board Decision, the Board concluded that it was not satisfied that the applicant had provided any reasonable explanation for the delay.

36.  The applicant however contends that the Board’s adverse finding on the applicant’s delay in the bringing of the non-refoulement is procedurally unfair. This is because at the hearing, the Adjudicator had in fact expressly informed the applicant that the Adjudicator would make no adverse finding on account of the delay. The Board’s Decision at §35 has also confirmed the Adjudicator’s attitude to the delay. It states that the matter in relation to the UNHCR application “was not a matter which are particularly held against the [applicant].” The applicant therefore contended that the Board had failed to apply the high standard of fairness to give the applicant a proper opportunity to address the Board on the “delay” when the Board has later decided to draw an adverse inference on the applicant’s credibility on account of the delay.

37.  The applicant further stated that at the screening interview before the Director, he had in fact told the interviewing officer the reason for the late application to the UNHCR in 2004. The applicant stated that the Board’s Decision does not show that the Adjudicator had considered the applicant’s explanation as set out in Answers #17 and #18 of the “Record of Interview” dated 30 November 2017. It was therefore argued that the Board has failed to apply a high standard of fairness when it has failed to show in its reasoning that it had properly considered every factor, which might be in favour of the applicant: see R (YH) v Home Secretary[32].

E.2.1.1  Discussion

38.  High standards of fairness require a decision-maker to properly take into account every factor favourable to a re-foulement claimant[33], and allow the claimant to “be given every reasonable opportunity to establish his claim” [34]including drawing attention to matters that need clarification or elaboration or any issues that may result in adverse credibility findings so that they can be addressed by the claimant[35].

39.  In the circumstances, the Board was obligated by the high standards of fairness not only to give the applicant a reasonable opportunity to explain the delay, but also to take into account materials favourable to the applicant. However, the Transcript shows that the Adjudicator had in fact expressly indicated to the applicant through his counsel that he did not accept the applicant’s explanation for the delay[36]. Worse still, the Adjudicator had in fact represented or insinuated to the applicant and his counsel that the delay in the applicant’s raising of his non-refoulement claim would not be held against him. In the Board’s Decision, the Adjudicator had not mentioned that he had considered the applicant’s answers to Questions #17 and #18 given at the screening interview. Hence, arguably, the Board appears to have failed to consider all the relevant matters.  

40.  In my view, the Board’s finding of the absence of “risk of harm” by adversely inferring this from the applicant “having raised no claim in Hong Kong after his arrival in 1996, even if he did make a claim to the UNHCR in 2004”[37] is  procedurally unfair. 

E.2.2  The use of a “false” passport as an example of dishonesty

41.  The applicant also faulted the Board’s finding of dishonesty on account of the applicant’s “false” passport. The applicant’s case all along is that a slight re-arrangement of the spelling of his own name had been made in his passport so that he was able to leave Sri Lanka without being stopped and detained^[38]. It was not a case of the use of a “false” passport as the Adjudicator has so described in the Board’s Decision. Hence, Ms Tam submitted that the Board has completely mischaracterised and/or misunderstood the applicant’s case. It was suggested that the Board’s finding (at §50 of the Board Decision) that the applicant “ initially claimed that he used a false passport to depart Sri Lanka but later recanted, conceding that the passport he used had simply an alternate spelling of his name” is erroneous.

42.  Ms Tam also pointed out that at the hearing before the Board[39], the Board gave no indication to the applicant that it was ever concerned the question of honesty or “recanting” in respect of the applicant’s passport. The only instance in which the Board mentioned the passport was when the Board asked the applicant to clarify the modifications made to the Altered Name.

E.2.2.1  Discussion

43.  As stated in §38 above, the Board ought to have accorded to the applicant a reasonable opportunity to address this matter when the Adjudicator had in fact made an adverse inference on the basis of the Altered Name.

44.  I agree with Ms Tam’s submission that the Board’s conclusion that the applicant had used a “false’ passport is unfair. In my view, not only has the Board acted unfairly by having failed to allow the applicant to address him on the issue of the falsity or authenticity of the passport because of the Altered Name, the Board’s Decision also consists of contradictory findings. In §51 of the Board’s Decision, the Board referred to the fact that the applicant’s passport was issued in February 1995 without mentioning as to when the applicant actually received the passport. The Board assumed that the applicant had delayed the leaving of the country when the applicant only departed Sri Lanka in mid-1996 by using the “false” passport.  This finding is contrary to the Director’s summary, which states that the applicant only received the passport 2 or 3 days before his departure.  The Adjudicator then stated (at §54 of the Board’s Decision) that the applicant “departed Sri Lanka using an authentic passport”. 

45.  Plainly, the Board’s inference of delay on account of the applicant’s delayed departure from Sri Lanka was made without resolving the conflict between the Director’s summary and the Board’s finding as to the passport’s date of issue.  The Board has also failed to explain why it assumed that the passport’s putative issue date of February 1995 is accurate, and that the applicant received the passport at that time, when it is his unchallenged evidence that he obtained the passport through an agent[40].

46.  Thus, it seems the Board’s finding of dishonesty is tainted by procedural unfairness, and does not meet the required high standard of fairness.

E.2.3  The Board’s finding of absence of adverse interest to the State

47.  The applicant avers that since the Board’s finding in relation to the applicant’s use of “an authentic passport’ to depart Sri Lanka is shown to have lacked any rational evidential basis, the basis upon which the Board has found that the applicant was not “a person of adverse interest to the authorities of Sri Lanka” similarly lacks evidential basis and is irrational: R (Law Society) v Lord Chancellor[41].

48.  Importantly, Ms Tam submitted, the Board has also irrationally failed to take into account the COI materials favourable to the applicant. For the present case, the relevant aspect of the evidence should have been the COI in relation to “Exiting Sri Lanka and Exile”.  Erroneously, the Board had not referred to the COI materials about situations where persons could be stopped from leaving the country (such as the existence of a warrant etc.)^[42].

49.  Ms Tam therefore suggested that the Board’s conclusion on the applicant’s unhindered exit must have been based on speculation or conjecture. It is well established that a decision-maker is not entitled to apply one’s own common sense in assessing a torture claim: see TI v Winston Leung[43].

E.2.3.1  Discussion

50.  I agree with Ms Tam’s submissions. The Board’s conclusion is not reasonably supported by evidence. His drawing of adverse inferences based on the passport in the findings of dishonesty, that the applicant is of no adverse interest to the Sri Lankan authorities or that there is no risk of harm are not reasonably supported by evidence, and are demonstrably flawed in the reasoning: R (Law Society) v Lord Chancellor.[44]

E.2.4  Conclusion

51.  For these reasons stated above, I find that the various adverse inferences the Board had drawn in reaching its decision on the lack of risk of harm are not reasonably supported by evidence, and are demonstrably flawed in the reasoning: R (Law Society) v Lord Chancellor.[45]

E.3  Future Risk Ground (Grounds 1 and 3)

E.3.1  Is the Report relevant?

52.  In the Board’s Decision (at §§44 to 46), the Board only considered the Report to assess the applicant’s capacity to give evidence at the hearing. The Adjudicator placed no weight on it as he took the view that the applicant was able to understand the process of the hearing.

53.  The applicant does not challenge the Board’s finding on capacity. At issue however is the applicant’s challenge to the Board’s failure in considering the various adverse effects that the applicant said he had suffered in relation to the applicant’s (i) memories; and (ii) the psychological well-being if refouled.  Ms Tam submitted that these effects would be relevant to the Board’s assessment of the applicant’s credibility.

54.  Before considering whether the applicant could rely on the Report to advance his arguments, it is therefore necessary to determine if the applicant’s mental condition as Dr Liu found is relevant to the applicant’s challenge.

55.  In the Report, Dr Liu found that the applicant did not exaggerate his problems, nor did he have “abnormal or excessive sick-role”. He opined that the applicant still suffered from the symptoms of EPCACE and PTSD to a significant extent, and  it was likely that the applicant’s psychiatric symptoms and functional impairments would persist and exacerbate in the future when it was triggered by “re-experiencing the memories and threats” or if he returned to his home country. Dr Liu stated that in view of the applicant’s high recurrence of re-traumatization, and severe symptoms, internal relocation would not be recommendable on psychiatric or medical grounds[46].

56.  Ms Tam submitted that since there was no challenge to either Dr Liu’s qualifications or his expertise, the Board would have been required to give good and objective reasons when it decided to give no weight to the Report: see Y (Sri Lanka) v Home Secretary [47] . It was contended that  had the Board given the necessary weight to the applicant’s psychiatric symptoms stated in the Report, the Board “would have considered (i) the [a]pplicant’s evidence and credibility in the light of the [a]pplicant’s diagnosis of EPCACE and PTSD, given that such traumatic events may affect the [a]pplicant’s memories and the way in which such memories form, and (ii) whether it is reasonable or unduly harsh for the [a]pplicant to be repatriated in light of the psychological trauma arising from past persecution”: Skeleton at §31.

57.  It was also submitted that Dr Liu’s findings that the applicant was “genuine, frank and consistent in describing and reporting his problems, symptoms, feelings and perceived suffering to his psychiatrist would suggest that the applicant was genuinely mentally vulnerable. The Board’s rejection of the Report based on the applicant’s motive is therefore erroneous for having failed to consider all the relevant considerations[48]. By disregarding the Report, the Board has not taken into account the applicant’s diagnosed psychiatric conditions in its assessment of the issues in relation to the genuiness of the claim (no exaggeration of problem and no sick-role), credibility (the avoidance symptoms) and the likelihood of harm to the applicant’s mental conditions upon future re-foulement.

58.  Ms Tam further submitted that the Board had failed to take into account particularly the diagnosis of “avoidance symptoms” as one of the psychological problems.  In support, Ms Tam additionally cited a publication by the UNHCR[49] entitled “The Credibility Assessment- Factors to Take into Account”. One of the factors a decision-maker should take into account when conducting credibility assessment includes the impact of trauma on memory and behaviour.  It states :

“Those who have suffered traumatic events often display avoidance symptoms; they avoid thinking and talking about the event. They may experience dissociation, the time of the traumatic event or when recalling it; they cannot remember some or all aspects of the trauma, because (aspects of) the event were not initially encoded. They many display emotional numbing and emotionally detach themselves from the facts they are relating. They may only remember sensory impressions (emotions, sensations, sounds, smells) or flashbacks; only fragments or impressions of the experience may be related. They tend to remember some central details, on which they have focused, at the expense of other peripheral details. Detention may have an impact on the ability to record and retrieve specific details of events. They may rely on general knowledge (schematic memory) about situations in preference to recalling specific painful events.”

E.3.1.1  Discussion

59.  A decision-maker is required to take into account all relevant considerations.  Hence, it is necessary to decide as a preliminary question whether Dr Liu’s findings of the applicant’s mental conditions are relevant to the above issues Ms Tam put forth.

60.  After the Board had dealt with the applicant’s capacity to give evidence, it did not discuss whether the diagnoses had impacted the applicant’s ability to recall past events of torture.  From the Board’s Discussion as well as the Transcript, I am unable to find any suggestion that the applicant had memory issues that affected his ability to recall past events. In my view, in assessing the applicant’s credibility, the Board was entitled to take into account the applicant’s behavior such as the way the applicant answered questions. Even on the applicant’s own case, he never suggested that the trauma he had encountered in the past had hindered his ability to recount any past events.  On the contrary, the applicant appeared to have the ability to provide detailed accounts of the various events leading up to his departure from Sri Lanka.  For this reason, I respectfully disagree with Ms Tam’s submissions that the Report is relevant to the Board’s assessment of the applicant’s credibility.

61.  In my view, Dr Liu’s opinions appear to have mainly focused on the adverse impact on the applicant’s mental state in the event of future refoulement. He further discussed the issue of whether internal relocation would be conducive to the applicant’s mental health. Dr Liu opined that a repatriation to the applicant’s country including relocation to another part of the country would exacerbate the psychiatric symptoms and functional impairment.  In my view, Dr Liu’s said opinion is very important and relevant to a consideration of the future risks. In the circumstances, I believe that the Report is relevant to the broad ground on future risk.

62.  By not giving weight to the Report, the Board has failed to take into account the psychological trauma refoulement may cause to the applicant when it considered the future risk of harm.  As a matter of basic fairness, the Board should have meaningfully discussed and evaluated Dr Liu’s diagnoses and observations before deciding whether to accept, reject, or give little weight to the Report.  However, in the Board’s Decision there is no mention at all of Dr Liu’s said opinion.  In the circumstances, it seems at least reasonably arguable that the Board failed to consider this highly relevant evidence. Thus, the Board’s Decision is tainted by procedural unfairness, is unreasonable and does not meet high standards of fairness.

E.3.2  A finding that the applicant would not be subjected to prolonged detention

63.  According to the Board’s Decision[50], the Board’s assessment of the future risk was mainly based on the Board’s doubt that the applicant was subject to “reporting conditions” before his departure from Sri Lanka” that were “akin to bail” conditions. After the Adjudicator had considered the materials from DFAT [51] (§53), he then concluded that upon returning to Sri Lanka, the applicant might only be detained and interrogated. However, the Board did not accept that this would necessarily lead to prolonged detention or infliction of harm upon him. 

64.  Ms Tam submitted that the Board’s reasoning in its finding that the applicant was not subjected to any reporting conditions is inconsistent with its own findings, namely, the applicant’s ease of departure and the applicant’s intention of avoiding detection by the authorities by the making of the Altered Name on the passport.

65.  It was further suggested that the Board has also applied the wrong standard of proof.  Ms Tam stated that despite having canvassed the applicant’s evidence on the reporting condition (Board’s Decision at §§31 and 32)   that he was required to sign in once a week at the terrorism investigation office at Kalutara, the Board however misapplied the standard of proof by instead specifically inquiring from the applicant whether formal charges had been laid in connection with the reporting conditions.  

66.  After having referred to the Transcript in relation to the above portion of the evidence at the Board hearing, Ms Tam submitted that the Board was plainly satisfied with the applicant’s response[52] to the Board’s asking about proof of the reporting conditions. Since there was no indication that the Board did not accept the applicant’s evidence or had given any reasons for its conclusion that he was not on reporting conditions that were only like bail conditions, Ms Tam suggested that the Board’s finding is erroneous.

67.  Further, Ms Tam also referred to the portion of the applicant’s evidence given at the hearing stating that the son of the assassinated President was still an incumbent minister and that the President’s death is still highly commemorated^[53]. This evidence would suggest that the applicant could not be treated as an ordinary returned detainee^[54] when the Board conducted the forward –looking assessment on future risks.

68.  However, when the Board found (the Board’s Decision at §34) that the applicant would not have come to any harm as his political involvement with JVP was more than 20 years ago, and in particularly that JVP was already a recognized political party. In coming to this conclusion, the Board seems to have failed to take that unique aspect into consideration – that the applicant is different to the ordinary returned detainees. Ms Tam submitted that an error arises from the Board’s unfair reference to the applicant as an ordinary returnee rather than on the basis of the applicant’s unique past events.

69.  Lastly, Ms Tam suggested that the Board’s conclusion that while the applicant would be detained or interrogated upon his return but it did not accept that “this would necessarily lead to prolonged detention or the infliction upon him of harm” (emphasis added by Ms Tam) upon the applicant’s return shows that the Board has applied a higher standard of virtual certainty. This is because the use of the word “necessarily” plainly means “a necessary result, inevitably”[55]. In non-refoulement claims, it is sufficient if there is a real risk as opposed to “near certainty”[56]. The Board therefore applied the wrong standard of proof, and this constitutes an error of law.

70.  The Board also erred in selectively referring to one part of the passage in DFAT without considering the information stated in the same passage that  “police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants”^[57] (emphasis added by Ms Tam). It was submitted that the Board  had failed to comprehensibly take into account the extensive COI adduced by the applicant showing that he would likely be subjected to prolonged detention or infliction of harm.

71.  The applicant therefore submits that the Board’s assessment of the future risk is irrational and tainted with illegality in its finding (Board’s Decision at §53 )

E.3.2.1  Discussion

72.  There is considerable force to the applicant’s submissions under this Future Risk Ground.  The Board’s proper role entails a requirement upon it to assess whether there is a real risk of harm in the event of refoulement, not whether harm is bound or certainly to happen.  A proper risk assessment is individualized, i.e. specific to the applicant’s circumstances.  However, what the Board effectively did was to assume, based on what DFAT understands generally happens to other ordinary returnees, that there would be no harm to the applicant without taking into account his specific history of past events (which the Board accepted).  The Board also seems to have failed to properly consider his evidence at the Board hearing that the President’s son was a government cabinet minister at that time, and that Sri Lanka continued to commemorate the anniversary of the President’s death.  Thus, it seems that the Board has erred at law and failed to take into account all relevant circumstances.

73.  A failure to consider, properly or at all, the COI relied upon by the applicant is procedurally unfair.

74.  In the present case, in the Board’s Decision, the Board makes no mention of any of the COI adduced by the applicant.  Clearly, the Board failed to demonstrate it had properly considered the applicant’s COI or conducted any independent assessment of the COI.  For this reason, it seems the Board’s Decision is tainted by procedural unfairness.

75.  It is worth noting that in the COI relied upon by the Board, it is stated “DFAT understands detainees are not subject to mistreatment during processing at the airport”[58] [emphasis added].  In other words, it seems DFAT does not know or is not certain that detainees are not subject to mistreatment during processing at the airport.  The COI that the Board relied on does not really support the Board’s conclusion.

76.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

F.   Conclusion

77.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

78.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

G.  Orders

79.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

80.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

81.  Costs be in the cause of the proceedings, and the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

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