MOHAMED ANVER MOHAMED RIYAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 401/2018

[2019] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 401 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 the Applicant being present / absent in open court;

1.  leave to the applicant to judicially review the Torture Claims Appeal Board’s decision dated 15 February 2018 be granted;

2.  the applicant to file and serve the originating summons within 14 days from his receipt of the decision dated 10 May 2019; and

3.  the applicant to serve the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party in accordance with Order 53, rule 5 of the Rules of the High Court. Cap 4A.

Observations for the Applicant:

1.  The applicant is a 43-year-old national of Sri Lanka who last arrived in Hong Kong on 9 June 2006 with a false identity and with permission to remain as a visitor up to 23 June 2006 when he did not depart and instead overstayed until he was arrested by police on 12 March 2008.  After he was referred to the Immigration Department for investigation, he revealed his true identity and lodged a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by some gangsters for losing their weapons and/or by the police for suspicion of being involved with those gangsters in their illegal activities.  Upon the commencement of the Unified Screening Scheme, his torture claim was then taken as a non-refoulement claim, and pending its determination he was released on recognizance. 

2.  The applicant was born and raised in Wattalpola Panadura, Sri Lanka.  After leaving school he worked in his father’s bicycle parts business and got married, and in 1999 he started working as a driver of hired van.

3.  One day in about 2004 he was hired by three men Mr A, B and C to deliver a bag to a wedding, but when he discovered the bag contained automatic rifles, face marks and machetes, he became alarmed that he may be involved in transporting illegal weapons and therefore drove his van with the bag to the police station in Panadura where he was told that those men who hired his van may be gangsters, and that the police would carry out their investigation.

4.  After leaving the police station, the applicant was afraid that the gangsters may be looking for him for going to the police, and instead of returning home he took shelter at his grandmother’s place, and later moved to his friend’s place in Gorakana.

5.  One day when he went out for a walk in Gorakana, some men grabbed him and forced him into a van where they accused him of losing their weapons and started beating him until some passers-by intervened that the applicant managed to escape from the van and ran away.

6.  After receiving treatments at a local hospital for his injuries sustained in the beating, with the assistance of a friend the applicant went to hide in a mosque in Me-Ella, Hakmana of Matara for several months without incidents until some policemen from the Hakmana station came and took him back to the station where he was interrogated for being involved in supplying firearms to gangsters during which he was threatened and hit with the batons. 

7.  On the following day he was brought by the police to the mosque to conduct a search as he was suspected of hiding weapons there, and as he was concerned that the police may be trying to frame him, he made up some excuse to go to the toilet and managed to escape from the mosque, and with the help of his friend he fled to Maradana where he made arrangements to leave Sri Lanka, and in October 2004 he departed for Hong Kong where he was subsequently arrested for overstaying and was repatriated to Sri Lanka on 27 October 2005.

8.  After returning to Sri Lanka the applicant just moved around to different places, and although he had no further encounter with the gangsters or the police, he was fearful that they were still looking for him, and decided to leave Sri Lanka again for Hong Kong, which he did on 9 June 2006 with a false passport, and after he was arrested by police on 12 March 2008 for overstaying in Hong Kong, he lodged his torture claim which was later taken as a non-refoulement claim, for which he completed a Torture Claim Form (“TCF”) on 7 February 2014, a Supplementary Claim Form (“SCF”) on 5 December 2014, and attended four screening interviews on 27 February 2015, 15 April 2015, 19 May 2015 and 2 July 2015  before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  During his stay in Hong Kong on recognizance, he was informed that his wife had divorced him in his absence in Sri Lanka, and in 2014 he married a local resident in Hong Kong and that his present wife has since given birth to two children respectively on 19 March 2015 and 24 July 2017.     

10.  By a Notice of Decision dated 8 March 2016 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”).

11.  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 to the applicant upon his return to Sri Lanka as low due to the absence or low intensity and frequency of past ill-treatment from those gangsters or the Hakmana police, that the behavior of the gangsters show no real intention of harming or killing him, that he encountered no problem from the police during his departure from Sri Lanka in 2004 or in his return in 2005 or his subsequent departure again in 2006 show that he was not pursued by the police or the authorities of Sri Lanka, that state or police protection would be available to him if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Sri Lanka away from his home district in large cities such as Colombo, Gampaha or Kalutara where it would be difficult if not impossible for those gangsters to locate him.

12.  By a Notice of Further Decision dated 10 July 2017 the Director again rejected the applicant’s claim upon receiving and considering further submissions from him 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”) which the Director found to be just a repeat of his claim already previously submitted.

13.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 22 March 2016, and for which he attended an oral hearing on 15 September 2017 before the Board with legal representation during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made by his lawyer on his behalf.  On 15 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found the evidence of the applicant unreliable, that the answers given by him in his interview before the Immigration Department clearly contradicted what he had stated in his TCF as regards the dates on which certain key events allegedly took place, that there is no credible evidence that the Sri Lankan government has any adverse interest in him, or that he would be liable to any risk of torture or CIDTP or BOR 2 risk or persecution risk, and rejected his claim under all applicable grounds.   

15.  On 12 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward his grounds for his intended challenge which can be summarized as follows:

(1)  that the adjudicator failed to consider his claim impartially or fairly or without bias;

(2)  that the adjudicator for no good reason found the applicant not trustworthy and just dismissed out of hand everything he said about his claim;

(3)  that the adjudicator nit-picked various minor mistakes made by the applicant in his statements while unrepresented and refused to accept the subsequent corrections made on his behalf by his lawyer from the DLS;

(4)  that the adjudicator unreasonably refused to accept his explanation that some of those mistakes were made due to his concern over his wife’s health; and

(5)  that the adjudicator improperly took into account of or placed unnecessary weight in those minor mistakes of the applicant in rejecting his claim.  

16.  On 4 September 2018 the applicant filed a further submission that the Board’s decision against his credibility was based on irrelevant issues and that it had applied the wrong test or principles in its assessment of his credibility in that:

(a)  the adjudicator was wrong in finding his evidence unreliable simply because he had contradicted the dates on which certain key events were alleged to have taken place;

(b)  the adjudicator had confused the medical condition of his wife and wrongly referred it to the applicant;

(c)  it was unreasonable for the adjudicator not to accept that he was in a confused state of mind during his first screening interview caused by his concern over his wife’s giving birth to their first child simply because the child was born after the First Interview and not before; and

(d)  the adjudicator failed to apply the correct test or principles in determining the issue of credibility as set out in the UK Home Office Asylum Policy Instruction: Assessing credibility and refugee status, 6 January 2015.     

17.  Before proceeding to consider the Board’s finding that the applicant had contradicted the dates of the key events of his account, it would be relevant to first note what the Director had recorded in his decision as to the applicant’s claim of the key event as follows:

“ The Incident

7.7  In general, you would park your van at Sarikkalimulla Junction, Panadura, and wait for the hire.  In the TCF, you claimed that one day in mid-2004, (you later stated in the 1^st ROI that the incident should be happened in 1999 or 2000 but you could not recall the month nor in which part of the year.  By letter of 4 May 2015 from the assigned duty lawyer, you confirmed that the incident was happened in 2004 instead of 1999 or 2000), a taxi driver named Shariff told you that someone would like to hire a van for wedding …” 

18.  As noted above, in his subsequent appeal hearing before the Board, the applicant was asked by the adjudicator about what he had earlier stated to the Immigration Department regarding the different dates when this incident was said to have taken place, as recorded in the Board’s decision:

“ 83.  The Petitioner was referred to his First Interview on the 27 February 2015 (HB pages 145–152). At Question 18 he was reminded that in his TCF he had said that in mid-2014 his van was hired by Mr A, B and C and that before the interview had started, he had told the interviewing officer that the incident did not happen in 2004 and was asked when it did happen. The Petitioner replied that as far as he could recall, it should be in 1999 or 2000.

84.  On 4 May 2017, the petitioner’s solicitor wrote to the Immigration Department (HB pages 194/5) and reminded the Department that before the commencement of the Interview held on 15 April 2015, they had given notification that the petitioner would like to amend the record of the First Interview. The solicitor pointed out, inter alia, that the sentence at Answer 18 should refer to the year 2004 not 1999 or 2000. The solicitor said that during the First Interview, the Petitioner was ‘not in clear state of mind as he worried about his wife and new born baby.’

85.  At the Hearing, the petitioner said that his wife was not very well during her first pregnancy and at times was unable to walk and relied heavily upon him.  The Petitioner said that on the day of the First Interview he was not in a proper state of mind.  He said that he told the interviewing officer that he wanted to go home to look after his wife but he would not listen.  He said that the incidents involving Mr A, B and C were in 2004.  He said he did not read the record of the First Interview until later and then took steps to correct it.”       

19.  The adjudicator then proceeded to give his assessment of the applicant’s credibility as follows:

“ 86.  I found the evidence of the Petitioner to be unreliable. The answers given by him in the First Interview clearly contradicted what he had said in the TCF as regards the dates on which certain key events allegedly took place.

87.  According to the TCF (HB pages 109–115), dated 7 February 2014, the Petitioner’s problems started in mid-2004, which is a few months before he first arrived in Hong Kong on 27 October 2004. At page 110 of HB, the Petitioner describes that after finding the automatic firearms in the truck of his vehicle …

90.  A screening interview was arranged for 30 January 2015. The Petitioner failed to appear and the Interview was rescheduled for 27 February 2015. On 6 February 2015, the DLS wrote to the Department to inform them that the duty lawyer would attend the screening interview and provide medical evidence to explain the Petitioner’s non-appearance on 30 January 2015. A medical certificate was produced (HB page 180–3) stating that the Petitioner suffered from sciatica, hip, thigh and knee pains making walking difficult.

91.  The first Interview started on 0915 hours on 27 February 2015 and the Petitioner was represented by the duty lawyer, Mr David Wong. The Petitioner [is] asked if he is fit and well and content to be interviewed and said that ‘I will do as best as I could’. At question 18 the Petitioner is reminded by the interviewer that before the start of the Interview, the Petitioner had told him that the incident did not happen in mid-2004. The Petitioner then told the Interviewer that as far as he could recall the date should be 1999 or 2000. This exchange takes place shortly before the lunch break at 1244 hours. The interview resumes at 1423. The Petitioner confirms that he is fit and well and content to be interviewed.

92.  The Petitioner is asked further questions. He describes how the gangsters came to his parents’ house on a number of occasions trying to find him and caused damage at the house. There was a mid-afternoon break from 1525 to 1542. At Question 52 he was asked about the time he alleged he was kidnapped. He said that was in 2003 but he could not recall the month. He was reminded that he had told the Interviewer that the handing over of the weapons to the police took place in 1999 or 2000 and if he was sure of the date of the kidnapping. He confirmed it happened in around 2003. He was then asked about the date of the kidnapping.

93.  At answer 54, the Petitioner said that he got married in 2001 and had a child in 2002 and he moved from place to place. He said he had been living in Gorakana where his wife lived. He then listed a number of places he had been staying during the period 2000 to 2003 before the kidnapping incident. He said during that period he was making money by doing some business like his father’s dealing in cycle parts.

94.  The interview paused at 1642 and was read back to the Petitioner. At Answer 60, the Petitioner said that regarding the years, he would check them again and would change them at the next interview if necessary. He said he could remember the time his passport was issued and he thought he had mixed up the years. The Petitioner was given a copy of the Interview notes.

95.  I did not accept that the Petitioner had given erroneous answers at the First Interview because he was distracted by his wife’s condition. I noted in the letter from his solicitors dated 4 May 2015 it states that the Petitioner was not in a clear state of mind because he was worried about his wife and new born baby. The baby was born on 19 March 2015, a few weeks after the First Interview.

96.  I noted that the Petitioner had indicated to the Interviewer even before the interview started that he wanted to correct the dates mentioned by him in his TCF. The alterations did not arise during the course of questioning. Thereafter the events were discussed in details over a period of hours. In talking about the alleged kidnap, the Petitioner was reminded of question 54 that he had told the interviewer that he had surrendered the weapons to Mr A, B and C in 1999 or 2000, stayed in his house and then moved to Gorakana for around 2 months. The Petitioner then stated in Answer 54 that he married in 2001, had a child in 2002 and moved to stay from place to place. He later goes on to list the places he stayed during the period 2000 to 2003. He goes on to state how he makes his living between those dates.

97.  I noted that the Petitioner later mentions that he may have mixed up some of the dates, however, in my view, he could not have mixed up events occurring before and after he married or before or after the birth of his son in Sri Lanka.  He did not simply fail to recall a few dates, he describes the same events as having occurred in very different time frames when he was in very different circumstances.  Also, in his TCF, the dates he supplied indicate that significant events happened only a few months before he came to Hong Kong in October 2004 rather that several years earlier as he later claimed.  I found the Petitioner to be a wholly unreliable witness.”

20.  From the above it seems to me that the adjudicator found the applicant’s evidence unreliable essentially on the basis that he had given different dates to the immigration officer during his screening interview as to the following key incidents:

(a)  that he stated 1999/2000 as the year when he was hired to transport the bag of firearms of which he subsequently claimed to be in 2004 shortly before he departed Sri Lanka for Hong Kong;

(b)  that he put the year of him being subsequently kidnapped by the gangsters for losing those firearms in 2003 when it could only take place after the first key event in 2004 under (a) above; and

(c)  that it was not accepted that he gave these dates erroneously because he was distracted by his wife’s pregnancy and the new born baby as his child was only born after the first interview.   

21.  In assessing the credibility of a torture claimant, the UK Asylum Policy Instruction, and relied by the applicant, stated in paragraph 5.4 that:

“ … if after looking at all the evidence and keeping the relatively low standard of proof in mind, the claimant’s statements and other evidence about the facts being established can be accepted if they are:

►  of sufficient detail and specificity

►  internally consistent and coherent (to a reasonable degree)

►  consistent with specific and general COI

►  consistent with other evidence (to a reasonable degree)

►  plausible

All indicators must be applied, and the credibility of the account examined in the round ….”

22.  Whilst the burden of proof rests on the claimant to prove his case, it is subject to the requirement of “high standards of fairness” that the Director and the adjudicator must observe in determining his claim, because to the claimant, “life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved”, and such high standards of fairness require that the torture claimant be given “every reasonable opportunity to establish his claim”: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

23.  It is also essential that the story of the claimant be considered as a whole and in the round in the assessment of his credibility.  In HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, Neuberger LJ stated in paragraph 28:

“ Further, in many asylum cases, some, even most, of the appellant’s story may seem inherently unlikely but that does not mean it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).”

24.  This reference by His Lordship to the need to consider factors related to plausibility along with “other familiar factors, such as consistency” is also illustrative of the need to avoid basing credibility assessment on just one indicator, and it seems to me that the indicators identified in the UK Home Office Instructions above provide a helpful framework within which to conduct a credibility assessment and which facilitate a more structured approach and to avoid looking at the evidence in a one-dimensional way or to focus solely on whichever indicator or factor appears foremost or opportune.   

25.  In the present case, the applicant was referring to events that occurred more than 10 years ago during his First Interview before the Immigration Department, and it cannot be said to be wholly implausible that he might have mistaken as to the exact dates when those key events occurred, of which he did mention that he needed to check them afterwards, and that right before his Second Interview he did try to rectify his mistakes through his lawyer, and while it is true that it was only after his First Interview that his wife gave birth to their first child, and hence he could not have been distracted by the new born baby, the fact is that the First Interview took place just three weeks before the birth, and with his wife’s condition at the time, it cannot be said to be wholly implausible that he could have been so distracted.

26.  It also seems to me that in considering the credibility of the applicant’s account of the key events, apart from the relevant dates of their occurrence the adjudicator did not appear to have gone on to consider the other indicators or factors as stated above such as details of the incidents, their internal consistency and plausibility, or whether they were consistent with the other evidence.

27.  In the premises and for these reasons I am of the view that it is reasonably arguable that the Board’s adverse findings on the applicant’s credibility as to his claim in the circumstances were Wednesbury unreasonable or irrational, and that it was procedurally unfair for the Board not to have proceeded to examine all the other indicators or factors and in the round in its assessment of the credibility of the applicant’s claim.

28.  Accordingly I grant leave to the applicant to judicially review the Board’s decision on these grounds, for which he must file and serve his originating summons within 14 days from his receipt of this decision, and that he should also serve the relevant documents on the Board as respondent and the Director of Immigration as interested party in accordance with Order 53, rule 5 of the Rules of the High Court, Cap 4A.

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