OMAR JAUFER MOHAMED HARIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2555/2019

[2025] HKCFI 2647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2555 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 Omar Jaufer Mohamed Haris (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 13 August 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 17 February 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“NRC”).

Background of the Applicant and the NRC

2.  The Applicant is a Sri Lankan.  He was born on 29 July 1979 in Nawalapitiya, Sri Lanka.  The Applicant claimed that he came from a Muslim family.  He eloped with a girl (“RS”) on 16 August 2000 and underwent a marriage ritual with her in Hatton, Sri Lanka.  The family of RS (“Family”) took RS back to their home in around November 2000.  The Family came from a Buddhist background and had powerful connections with the United People Freedom Alliance.  The Family issued a veiled threat towards the Applicant and he went into hiding in Hemmathagama.

3.  In around early 2001, the Applicant learnt that RS committed suicide on 25 December 2000 while being 10-week pregnant.  The Family became furious at the Applicant.  In early 2001, the Family vandalised the house of the Applicant’s parents.

4.  The Applicant was advised by his friend to flee, so he fled to Colombo, where he stayed for 2 to 3 weeks.  He came to Hong Kong on 4 March 2001 but was removed from the territory on 10 January 2002.

5.  Upon return to Sri Lanka, the Applicant returned to live in Maligawatta until February/March 2002 when he moved to stay in Gampola until March/April 2002.

6.  The Applicant was attacked when he was in Gampola.  The assailants told him that they were sent by RS’s brothers and they were ordered to take him to RS’s brothers (“Kidnapping Incident”). The assailants assaulted the Applicant.  They fled only after some distant friends of the Applicant came to his aid.  The Applicant sustained bruises all over his body and resulting in his nose bleeding.  He received treatment in a private clinic.  It took him 2 days to fully recover. 

7.  One week after the Kidnapping Incident, the Applicant left Gampola for Colombo where he stayed for around 6 months.  Using a forged passport, the Applicant flew from Colombo to Hong Kong on 6 September 2002.  He claimed that his family in Sri Lanka informed him that the Family was still looking for him as of 2014.

8.  The Applicant claimed that he was in fear of being harmed or killed by the Family if he were returned to Sri Lanka.

9.  On 2 October 2006, the Applicant lodged a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”), which was rejected by the Director on 11 June 2013. 

10.  On 31 October 2013, the Applicant made the NRC by a written representation.  The Director assessed the NRC on the following remaining grounds (other than the CAT Claim) under the unified screening mechanism (“USM”):

(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” and “BOR 2”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”); 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 (“Refugees Convention”).

11.  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.

12.  On 3 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”). 

13.  In the Form 86, the Applicant named the Petition teams (Security Bureau) as the proposed respondent and the Board as the interested party.  He referred to a decision dated 13 August 2019 (which was the date of the Board’s Decision) as the subject decision for his intended judicial review.

14.  The Applicant attended the court hearing of 17 April 2025 (“Court Hearing”) and confirmed that he intended to seek leave for judicial review of the Board’s Decision.  I proceeded with this application on such basis.

15.  After the Court Hearing, the Director of Legal Aid filed on 23 April 2025 a memorandum advising that the Applicant had applied for legal aid. Pursuant to section 15(4) of the Legal Aid Ordinance (Cap. 91) and regulation 7A of the Legal Aid Regulations (Cap. 91A), these proceedings have been stayed until 4 June 2025.

Legal principles applicable to judicial review

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

17.  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 [i.e. country of origin information] 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.”

18.  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

19.  In the Form 86, the Applicant wrote: “still I have life threaten by my enemies in my country.  I cannot go to my country if I go my life [unintelligible]”.

20.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision and wrote that he had married in Hong Kong and had a daughter.  He also said that his enemies, who were Sinhalese, were still looking for him and it would not be safe for him to return.

21.  In §§37-44 and 47-50 of the Board’s Decision, the Board analyzed evidence given by the Applicant at different stages of his non-refoulement claim proceedings.  The Board was prepared to accept that the Applicant eloped with RS and that the Family blamed the Applicant for RS’s suicide. However, it did not accept that the Applicant’s account of the ongoing harassment his family had received as a result, including his father being assaulted and their family home being vandalised, or that the Applicant was the subject of an attempted kidnapping and assault in 2002.  While the Board accepted that the Family might have been understandably upset about RS’s suicide, the Board did not accept on the basis of the evidence before the Board that some 18 years later they had the kind of ill-will towards the Applicant that he claimed might lead to them harming or even killing the Applicant.

22.  The Board also did not accept the Applicant’s claim that as a Muslim, he would be targeted by Buddhists in Sri Lanka.  It found that while there might have been occasional incidents of Muslims being harmed, the violence towards Muslims was sporadic and limited in nature (§61 of the Board’s Decision).

23.  The Board accepted that the Applicant might feel hardship from being asked to separate from his family in Hong Kong but this was not a ground for seeking non-refoulement protection.

24.  Having regard to the Applicant’s evidence as a whole and all the information before it, the Board did not consider there was a real risk that the Applicant would be subjected to any form of proscribed harm should he return to Sri Lanka, either as individually or cumulatively a result of his relationship with RS, his religious identification in a predominantly Buddhist country or because on the basis of his separation from his family in Hong Kong.

25.  The Applicant maintained in the Supporting Affirmation that it was still unsafe for him to return to his home country as his enemies were still looking for him.  He disagreed with the Board’s assessment on the risk of harm to him.

26.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, state protection and risk of harm 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.

27.  In disputing the Board's assessment on evidence, credibility, state protection 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.

28.  At the Court Hearing, the Applicant complained that the Director and the Board did not consider his case carefully and the lawyer assigned by the Duty Lawyer Service (“DLS”) to assist him to present his case to the Director was not familiar with the situation in Sri Lanka.  He said that he did not agree to the Board’s Decision.  He maintained that it was still not safe for him to return to Sri Lanka.  He said that he had married in Hong Kong with a child. If he were returning to Sri Lanka, he would bring his wife and child with him but their safety could not be guaranteed.

29.  The Applicant’s complaints against the lawyer assigned by the DLS did not assist his intended judicial review.  The hearing of the Appeal before the Board was a rehearing of the Applicant’s claims.  In §4 of the Board’s Decision, the Board recorded that:

“The Adjudicator checked with the Petitioner [i.e. the Applicant] to ensure that the claims and evidence he had been given to date were true and correct. He confirmed that they were and adopted them in evidence. Asked whether he had any additional claims or new information relevant to his claims, the Petitioner responded that there was nothing to vary or add to those claims already submitted. The Adjudicator wrote again to the Petitioner on 15 July 2019 requesting for any updated information. He responded in writing on 29 July 2019, submitting various articles as outlined below [in the Board’s Decision].”

30.  If the lawyer assisting the Applicant in presenting his case to the Director had omitted to submit any information, the Applicant had had the opportunity to submit further information to the Board which he did and the Board had taken into account all further information submitted by the Applicant before determining the Appeal.

31.  His family situation in Hong Kong was known to the Board. (§35 of the Board’s Decision)  The Board had rightly noted that this was not a ground for seeking non-refoulement protection. (§61 of the Board’s Decision)  It is also not a ground for seeking leave for judicial review of the Board’s Decision.

32.  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 relating to the relevant grounds for seeking non-refoulement protection under the remaining grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

33.  In §§64-66 of the Board’s Decision, the Board considered the NRC under each of the remaining grounds (other than the CAT claim) under the USM. 

34.  The Board found that there was nothing which indicated the Applicant faced a genuine and substantial risk of being subjected to any form of mistreatment, let alone treatment which could be characterized as torture or which attained the requisite level of severity to amount to violation of BOR 3 if he returned to Sri Lanka.

35.  The Board found that there was not a real risk that the Applicant would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.  As such, returning the Applicant to Sri Lanka would not expose him to a real risk of violation of his right to life so as to constitute a breach of BOR 2.

36.  Having regard to the evidence as a whole, the Board found that the Applicant was not at real risk of persecution on any Refugees Convention basis and the Applicant did not have a well-founded fear of being persecuted in Sri Lanka, whether for reason of any of the Refugees Convention grounds or for any other reason.

37.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the remaining grounds (other than the CAT Claim) under the USM.  These were findings of fact 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

38.  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