BAZEER AHAMED SANFAR ALIAS MOHAMED ISMAIL ZAWAHIR AND OTHERS v. THE PETITION TEAMS (SECURITY BUREAU)

HCAL 909/2018

[2020] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 909 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is 41-year old national of Sri Lanka who arrived in Hong Kong on 25 December 2004 with a passport under a different name and was permitted to remain as a visitor up to 24 January 2005 when he did not depart and instead overstayed and was arrested by police on 21 February 2006.  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 certain local supporters of rival political party People’s Alliance Party (“PAP”), and when his torture claim was rejected, he sought non-refoulement protection on the same basis.  He was subsequently released on recognizance pending the determination of his claim.

2.  While released on recognizance, on 13 June 2014 A1 married the 2^nd Applicant (“A2”), a 35-year old national of Indonesia who first arrived in Hong Kong in 2006 with permission to work as a foreign domestic helper, but when her last employment contract was prematurely terminated on 31 May 2010, she did not depart and hence overstayed, and upon her subsequent arrest by the police, she raised a torture claim which she later withdrew, but after her marriage to A1 in 2014, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia, she would be harmed or killed by her parents and/or the man whom her parents had arranged for her to marry but after her marriage to A1 in Hong Kong, she feared that she would be punished by them severely with violence; and upon the subsequent birth of their two children, the 3^rd and 4^th Applicants (“A3” & “A4”), they also raised a non-refoulement claim for them on the same basis of their claim and to be assessed jointly together.     

3.  A1 was born and raised in Arukulampity, Mannar, Sri Lanka but later settled in Puttalam near Palavi Nagav.  After leaving school he worked as an accountant in his father’s shop, and became a supporter of the political party Muslim Congress Party (“MCP”).

4.  During the 2004 Parliamentary Election, he assisted in the election campaign of his party’s candidate Mashoor by arranging meetings and rallies and taking voters to polling stations, during which he and his friends discovered certain illegal activities of the PAP’s candidate Badurdeen and informed Mashoor accordingly.  Nevertheless Badurdeen still won the election and afterwards his supporters threatened to take revenge against A1 for revealing Badurdeen’s illegal activities, while those supporters of Mashoor also blamed him for his loss.

5.  On the following day of the election, a mob of Mashoor’s supporters came to take A1 to the home of their candidate where he was interrogated and beaten until police came to his rescue and brought him back to the police station where he made a complaint against those supporters of Mashoor.

6.  Two days later he was approached by some MCP senior members to withdraw his complaint, but when he refused, they threatened that there would be serious consequences.  As A1 was concerned about threats from those supporters of Mashoor and Badurdeen, he therefore fled to Colombo in April 2004, but when he heard that those supporters of Badurdeen were looking for him everywhere, and when he later ran into some of them in a mall in Colombo, he felt it was no longer safe to remain in Sri Lanka, and so on 25 December 2004 he used a passport of a different name to depart for Hong Kong where he overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he sought non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 December 2015 which was later jointly considered and assessed together with that of A2, A3 and A4 by the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  As for A2, she was born and raised in Palopo, Sulawesi, Indonesia.  One day in 2002 when she was 17 and still in school, her father told her that he had arranged to marry her to an older man Martin, a police officer from whom her father had borrowed money and had agreed in return to marry her off to him, but when A2 protested about the arrangement as she wanted to pursue her education, her father became upset and insisted that she must marry Martin as planned or else he would kill her.

8.  As A2 was not willing to marry Martin, she therefore ran away from home shortly before the marriage and fled to Malang in East Java with the help of a friend where she found a job working as a domestic servant in Surabaya, but later when she heard that her father and Martin were still looking for her everywhere, she felt it was no longer safe to remain in Indonesia, and so in November 2006 she departed for Hong Kong to start her first employment contract as a foreign domestic helper, and when her last employment contract was prematurely terminated in 2010, she overstayed in Hong Kong until her arrest by the police when she raised her torture claim which she had later withdrawn, but upon her subsequent marriage to A1 in Hong Kong and when she heard that her father and/or Martin would severely punish or even kill her for marrying A1 in Hong Kong, she then sought non-refoulement protection on that basis for herself and later also for her children, for which she also completed a SCF for her claim and a Non-refoulement Claim Form for A3 and A4, and with all of which to be assessed jointly with A1’s claim with legal representation from the same lawyer from DLS.     

9.  By a Notice of Decision dated 11 July 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from those local PAP supporters of Badurdeen or A2’s parents or Martin upon their return to their respective home in Sri Lanka or Indonesia as low due to the absence or low intensity and frequency of past ill-treatments from them, that after all these years that it is doubtful that they would still have any adverse interest in the Applicants, that in any event the dispute between A2 and her parents or Martin or of those between A1 and the supporters of Badurdeen were private personal matters without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Sri Lanka or Indonesia with large populations spread across vast territories that it would not be unduly harsh for A1 and A2 as able-bodied adults with working experience to move with their children to other part of either countries away from their respective home district in large cities where it would be difficult if not impossible for their perceived enemies to locate them.

11.  The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 4 December 2017 before the Board during which both A1 and A2 gave evidence and answered questions put to them by the adjudicator for the Board.  On 24 April 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board found significant inconsistencies and conflicting evidence of A1 and A2 as to their respective claims that both were not considered as witnesses of truth, and did not accept their claims as reliable or credible, nor did it consider that there is any real risk that any of the Applicants will face any of the proscribed forms of harm should they return to either Sri Lanka or Indonesia that their claims for non-refoulement protection failed on all applicable grounds.     

13.  On 23 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated their claim that their lives would still be in danger in their home country and that he and his family should not be deported from Hong Kong as his children go to school here.  Nor did they request for any oral hearing for their application.  As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision, I do not find any reasonably arguable basis for their intended challenge.    

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

15.  In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on their credibility for the thorough and detailed analysis and reasoning set out in paragraphs 54 – 113 of its decision with the benefit of hearing oral evidence from both A1 and A2 and their answers to questions raised of their claims during their appeal hearing, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Sri Lanka or Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.  In the premises and having considered the 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 Applicants’ claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

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