MOHAMED CASSIM JAWFAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 142/2018

[2019] HKCFI 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 142 of 2018

  Application for Leave to Apply for Judicial Review

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

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 31 August 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 38-year-old national of Sri Lanka who arrived in Hong Kong on 22 September 2004 with permission to remain as a visitor up to 22 October 2004 when he did not depart and instead overstayed and was arrested by police on 30 December 2004.  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 a local jihadist group JIHAD which had murdered his father for being a supporter of the outlawed Liberation Tigers of Tamil Eelam (“LTTE”) and/or by the police for suspected link with LTTE.  His torture claim was subsequently taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, and he had been released on recognizance pending determination of his claim.

2.  The applicant was born and raised in Sainthamaruthu, Eastern Province, Sri Lanka as a Moor of Muslim faith and speaks Tamil.

3.  His father had two wives and he was born to his father’s second wife who told him when he was small that his father and first wife were murdered by JIHAD in Kalmunai in 1990 for being supporters of LTTE, and as a result his mother had brought him and his sister to move away to live in Hingurana, and later in 1994 they moved home again to Varipitacheni.

4.  In 1997 the applicant went to Colombo to work in a restaurant and kept a low profile to avoid JIHAD, as well as the police due to his father’s past involvement with LTTE.  However, in 2004 when he saw the presence of some members of JIHAD in Colombo, he was concerned that they might be there looking for him and decided that it was no longer safe to remain in Sri Lanka, and so on 17 September 2004 he departed for Thailand, and from there he later came to Hong Kong where he overstayed and subsequently raised his torture claim, for which he completed a Torture Claim Form (“TCF”) as well as a Supplementary Claim Form (“SCF”), and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  Whilst being released on recognizance pending the determination of his claim, the applicant had been arrested by police on various occasions for a series of criminal offences between 2010 and 2013 including assaults, criminal damage and theft for which he was convicted and sentenced to imprisonment on four separate occasions ranging from 21 days to six months.

6.  By a Notice of Decision dated 25 August 2015 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 JIHAD or the Sri Lanka police to the applicant upon his return to Sri Lanka as low due to the absence of any ill-treatment from them before he left Sri Lanka, that his fear of harm from JIHAD was based entirely on hearsay and speculation unsupported by any independent or reliable evidence, that in any event after all these years that it is inconceivable that JIHAD would have any interest in him let alone to be able to identify him, that there is also no evidence at all that he was ever wanted or pursued by the Sri Lankan police or authorities where his fear was again based entirely on speculation, and concluded that there are no substantial grounds for believing that he would face any real personal or foreseeable risk warranting non-refoulement protection under any of the applicable grounds.

8.  On 7 September 2015 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 15 August 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 February 2017 his appeal was dismissed by the Board upon finding the applicant’s account woefully vague, devoid of details, unreliable and unable to be accorded any evidential weight that it could place no credence at all in his claim.  In dismissing his appeal the Board also confirmed the Director’s decision.

9.  Meanwhile on 31 March 2017 the Director on his own initiative by letter invited the applicant to submit additional facts or submissions 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”), and in the absence of any such additional facts or submissions from the applicant, the Director by a Notice of Further Decision dated 10 May 2017 again rejected the applicant’s claim on all applicable grounds including BOR 2 risk.

10.  On 24 May 2017 the applicant again filed an appeal to the Board against the Director’s Further Decision regarding his BOR 2 risk, for which the Board did not find it necessary to hold any oral hearing on this occasion, and on 31 August 2017 dismissed the applicant’s appeal and again confirmed the Director’s decision.

11.  In its decision (“the Board’s Second Decision”) the Board found that the applicant had failed to put forward any arguable ground for his appeal, that the Director was correct to reject his claim under BOR 2 risk in the absence of any additional facts or submissions relevant to BOR 2 risk from the applicant, and concluded that he had failed to establish any claim under BOR 2 risk. 

12.  On 31 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s Second Decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim that he still had problems in his home country and that his life would be in danger if he was to return home.

13.  By then the applicant was out of time with his application, 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.

14.  In the applicant’s case, the three-month period within which he was to file his Form 86 expired on 30 November 2017, and hence he was two months late with his application, 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.  A delay of two months cannot be said to be insignificant or insubstantial, for which the applicant explained in his Form 86 that he did not make the application earlier as he had lost his document, which I assume he meant the Board’s Further Decision, but in the absence of any further particulars and given the fact that even if he indeed lost the documents it should still not have taken such a long time to obtain a replaced copy, I do not accept that it was a valid reason for his delay.

16.  As for the merits of his intended application, as noted above the applicant did not put forward any ground for his intended challenge, nor has he even up to now provided any additional facts relevant to the assessment of his BOR 2 risk.  Based on the existing materials and the case advanced by the applicant, the assessment of his BOR 2 risk would be the same as BOR 3 risk, the persecution risk and the torture risk.  There is simply no basis for reversing the Board’s Second Decision, or for that matter the Director’s Further Decision either.  The applicant’s intended application simply has no merits.

17.  In the premises and having considered the further decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not 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 under BOR 2 risk.

18.  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 reason for his delay, I refuse to extend time and according 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