SIEBEL HAROLD MARLIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2102/2019

[2025] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2102 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Siebel Harold Marlin (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the Claim

2.  The Applicant is a Sri Lankan. He was born on 2 July 1987 in Gampaha District, Sri Lanka. He received around 12 years of education.

3.  The Applicant claimed that if he returned to Sri Lanka, he would be harmed or killed by people of the United People’s Freedom Alliance (“UPFA”), Jeyaraj Fernandopulle (a UPFA member who later became a government minister) (“Minister”) or gangsters sent by them, because he supported the opposing political party, the United National Party (“UNP”),.

4.  The Applicant claimed that he joined the UNP in February 2004 to help his friend (“W”) with the election in his village (“Election”). The Minister was among the candidates running for the Election. The Applicant had violent or threatening encounters with the UPFA supporters between February and April 2004. The Applicant had sustained injuries in a fight occurred on 2 February 2004. He reported the case to the police. The police said that they would investigate but took no further action.

5.  The UPFA supporters on other occasions threatened that they would kill the Applicant and his group if they did not stop campaigning for the UNP. The Applicant also received anonymous phone calls from the UPFA supporters threatening to kill him if he did not stop his campaign work for the UNP.

6.  After the Election, some people, said to be from the ruling party, went to the Applicant’s house and threatened the Applicant’s mother that they would kill the Applicant if they managed to locate him. The Applicant had to flee to his cousin’s house in Colombo in April 2004 to avoid the UPFA supporters. In early 2006, the UPFA supporters went to the Applicant’s cousin’s house and threatened to harm him if he allowed the Applicant to stay. The Applicant then moved to Nuwaraeliya until he came to Hong Kong illegally in 2007 via Malaysia and Mainland China.

7.  The Applicant was told by his mother that the UPFA sent gangsters to the Applicant’s home from time to time after the Election to look for him. They threatened to kill the Applicant if they found him.

8.  The Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”) for torture risk (“torture risk”) in October 2007. The CAT Claim was rejected by the Director on 20 January 2014.

9.  The Applicant lodged the NRC on 28 August 2013. Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the NRC was assessed under the following grounds of the USM (other than the torture risk), namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  By the DOI Decision, the Director refused the NRC. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 23 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review. In the Form 86, the Applicant named the Board as the proposed respondent but referred to a decision dated 18 July 2018 as the subject decision for his application. The Board’s Decision was dated 24 June 2019 but not 18 July 2018 which was the date of the DOI Decision. The Applicant attended the court hearing on 11 February 2025 (“Court Hearing”) and confirmed that he intended to seek judicial review of the Board’s Decision. As such, I proceeded with this application on such basis.

12.  The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”).

Legal principles applicable to judicial review

13.  In a judicial review, the court does not step into the shoes of the decision makers.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

15.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

16.  In the Form 86, the Applicant did not put forward any ground for his intended judicial review.

17.  In the Supporting Affidavit, the Applicant wrote:

“I don’t agree with decision of my claim as I can’t accept someone thoughts there is still dead threats for me due to work for a political party and whoever involved to the incident against me they are still with political power.”

18.  The Applicant produced no supporting documents to the Supporting Affidavit.

19.  At the Court Hearing, the Applicant said that he had supporting documents for the NRC which he was unable to obtain before attending the screening interview for the NRC (“Interview”) with the Immigration Officer. Thus, his claims were rejected on the ground of lack of supporting documents.

20.  By a letter dated 17 October 2024 (“Letter”), the Applicant submitted the following documents to the court (“New Documents”):

(1)  a letter dated 13 March 2023 from the Mayor of Negombo (“Mayor’s Letter”);

(2)  a document called “Administering and Delivery of Assistance for Non‑Refoulement Claimants” and “Agreement on Administering and Delivery of Humanitarian Assistance” of International Social Service Hong Kong Branch (“ISS”) (“ISS Documents”); and

(3)  two birth certificates (“Birth Certificates”)

21.  The Applicant confirmed that the further supporting documents he wanted to submit to the Director were the New Documents. The Applicant sought to adduce the New Documents as new supporting evidence in his intended judicial review.

22.  As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible.

23.  The Mayor’s Letter though dated 2023 only referred to matters of 2004. There was no reason why this document could not have been obtained prior to the Interview which was held on 13 June 2018, i.e. 14 years after 2004. It might also be obtained prior to the Appeal hearing before the Board held on 10 April 2019 (“Board Hearing”), i.e. 15 years after 2004. It is noted that the Applicant was legally represented by the Duty Lawyer Service (“DLS”) at the Board Hearing.

24.  The Mayor’s Letter showed that the Mayor’s office had telephone numbers, fax number, web site and email. It would not be difficult for the Applicant to contact the Mayor’s office even after he left his country. The DLS could also assist him to contact the Mayor’s office and obtain such letter for use at the Board Hearing. It would not require 19 years for the Applicant to obtain such letter from the Mayor. I do not accept that this is evidence which could not have been obtained with reasonable diligence for use at the Interview or at the Board Hearing.

25.  It was recorded in §8 of the DOI Decision that: “In the USM Interview conducted with you [i.e. the Applicant] on 13 June 2018, you confirmed that you did not have any information to provide in relation to your non-refoulement claim.” (See also §12.48 of the DOI Decision)

26.  At the Interview as well as at the Board Hearing, the Applicant (represented by the DLS) referred to a letter from Lalith Tencil, Sri Lanka Freedom Party (“SLFP”), Chief Organizer of Negombo Coordinating Committee Co-chairman covering similar matters referred to in the Mayor’s Letter. (§§30-31 of the Board’s Decision) As such, the matters raised in the Mayor’s Letter had already been considered by the Director and the Board. In fact, the Mayor’s Letter only reiterated the Applicant’s case. It would not have an important influence on the result of the case.

27.  Even if I accept that the Mayor’s Letter is apparently credible, it still fails to meet the other two Ladd v Marshall conditions. As such, the Mayor’s Letter will not be admitted as new evidence for this application.

28.  The ISS Documents only showed that the Applicant was receiving ISS assistance. They had nothing to do with the NRC. The Birth Certificates only showed that the Applicant has two daughters born in Hong Kong. They also had nothing to do with the NRC. I do not see that these documents would have an important influence on the result of the case. As such, they also will not be admitted as new evidence for this application.

29.  In any event, I do not see that the New Documents will assist the Applicant’s case.

30.  At the Court Hearing, the Applicant also complained of unduly delay in determining his claims. He said that he came to Hong Kong in 2007 and the NRC was not determined until June 2019.

31.  The Applicant lodged the NRC in August 2013. According to §7 of the DOI Decision, the Applicant submitted his supplementary claim form for the NRC on 4 May 2018. The Interview was arranged for 13 June 2018. The DOI Decision was issued on 18 July 2018.

32.  It can be seen that the Director took about 5 years to process the NRC. There were large number of pending claims for non-refoulemenmt protection before the Director. With limited resources, it is understandable that it would take some times before the Director might complete the assessment of each individual case. I note that the Applicant did not submit his supplementary claim form for the NRC until May 2018 and the Director had determined the NRC within 3 months of receiving the Applicant’s supplementary claim form. In such case, I do not see that there was unduly delay on handling of the NRC on the part of the Director. In any event, the time taken up by the Director in dealing with the NCR will not constitute ground for judicial review of the Board’s Decision.

33.  At the Court Hearing, the Applicant said that he still could not go back to his country. He did not want to stay in Hong Kong. Instead, he wanted to go to a third country. He had now married in Hong Kong with two daughters. He did not want to separate with them. Other than reiterating that the Director and the Board should have waited for the New Documents which he said would support his case before they rejected the NRC, the Applicant was unable to identify any error of law, procedural unfairness or irrationality in the Board’s Decision.

34.  The Board found that the Applicant’s evidence was broad and fairly vague and somewhat contradictory. The Board had some doubts regarding his evidence that he was heavily involved with the UNP in the Election. (See §§72-74 of the Board’s Decision)

35.  The Board was of the view that even the Applicant was given the benefit of doubt, significant changes had occurred in Sri Lanka since the Applicant’s departure. The Board noted that the Minister was killed in 2008. The Board was of the view that the Applicant would not have difficulty if he were to return to Sri Lanka as the UNP, the party that the Applicant claimed to have support and been involved with, was part of the power-sharing agreement and was in power in Sri Lanka.

36.  For reasons set out in §§75-80 of the Board’s Decision, the Board accepted that the Applicant might have had some participation in the Election in relation to supporting the UNP, but the Board did not accept the broader claims made by the Applicant that he was of ongoing interest to UPFA, the SLFP, gangsters, the authorities, and/or anyone else in Sri Lanka.

37.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

38.  In disputing the findings on assessment on evidence, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

39.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles for seeking non-refoulement protection under the applicable grounds (other than the torture risk) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

40.  In §§84-99 of the Board’s Decision, the Board considered the NRC under each of the applicable grounds (other than the torture risk) under the USM. The Board did not accept that the Applicant had a well-founded fear of the persecution risk. For reasons stated in §§89-90 of the Board’s Decision, the Board did not accept that there was a real chance, a real risk, or a reasonable degree of likelihood that the Applicant would be persecuted. For the same reasons, the Board did not accept that there were substantial grounds or strong ground, for believing that the Applicant faced a real risk of being subjected to the BOR 3 risk if he returned to Sri Lanka. For reasons stated in §99 of the Board’s Decision, the Board did not accept that there was any ongoing risk (including the BOR 2 risk) to the Applicant if he were to return to Sri Lanka.

41.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under the applicable grounds (other than the torture risk) under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the NRC. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

42.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the NRC, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply 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