BENADICT PATPANATHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 843/2020

[2025] HKCFI 5667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 843 of 2020

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 oral submissions by the Applicant in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

3.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Observations for the Applicant:

Introduction

1.  By a “Notice of application to apply for leave for judicial review” in the prescribed Form 86 filed on 8 May 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“Board”) dated 9 April 2020 (“Board’s Decision”) dismissing the applicant's appeal against  the Director of Immigration (“Director”) dated 28 April 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except the torture claim under Part VIIC of the Immigration Ordinance, in respect of which the Director rejected on 14 August 2012.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000843_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Director and the Board as the proposed respondent and did not name any interested party.  As the Board should have been the proper respondent, and the Director the proper interested party, the Form 86 shall be amended accordingly on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Sri Lanka, he, as an ethnic minority of Sri Lankan Tamil, would face 3 types of fear in that he would:

(I)  Be harmed or killed by the Sri Lanka authorities- the Army (“Army”)  and the Sri Lankan Police (“Police”);

(II)  Be harmed or killed by the Liberation Tigers of Tamil Eelam (“LTTE”)  and the breakaway Karuna Group; and

(III)  Face discrimination of the Sinhalese people.

4.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision

5.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

Discussion

6.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 provided none at all and the supporting affirmation only contained an averment that the Board’s Decision was only based on “web reports and some Sri Lankan authorities reports, but not going into source relevant to” the applicant’s claim.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the Board dealt with the three sources of fear stated above separately by firstly rejecting the claimed fear (II) and (III).

9.  For alleged fear (II) regarding the LTTE and the Karuna Group, the Board found that according to the applicant’s own account, he was not ill-treated by the LTTE in his latest and last encounter with them in mid-2005.  In any event, the Board found that the COI confirmed that LTTE was already defunct, having been defeated in May 2009.  As for the Karuna Group, the Board found that the applicant had provided no evidence that he had suffered any harm from this group.  The Board rejected the applicant’s evidence as speculation that he would be arrested and sent to prison if re-fouled as Karuna was working for the Government.

10.  For alleged fear (III) regarding discrimination by the Sinhalese people, the Board found that the genocide of Tamils the applicant alluded to only occurred during the civil war against the LTTE in 2005.  Since LTTE had already been destroyed long time age, the Board therefore rejected the applicant’s claimed fear.  The Board further found that discrimination did not automatically mean serious harm or ill-treatment.  The Board further relied on the COI to come to the conclusion that the “Returned” Tamils would face the same general conditions as the rest of the Tamil population and would not be subjected to any particular focus of treatment.  Thus, the Board rejected this source of claimed fear.

11.  For the alleged fear (“I”), regarding risk of harm by the Army and the Police, the Board did not accept the applicant’s alleged assault by the Police on the ground that the allegation was only a bare assertion and not supported by any medical evidence.  In any event, the Board found that the alleged assault already happened long time ago.  The Board therefore found that there was little future risk of harm if the applicant were refouled.  

12.  The Board also found that the applicant was not a “wanted person” or on any “stop list” as he was able to depart Sri Lanka via official immigration channels using his own passport.

13.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

14.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court finds that it is reasonably arguable that the Board has not applied the required high standards of fairness, and that the Board’s Decision seems to be erroneous in law, tainted by procedural unfairness and unreasonable.

Failing to adopt a high standard of fairness

15.  It is well-established that when assessing a non-refoulement claim, a decision‑maker/the Board is required to adopt  “high standards of fairness”[4], which encompasses the obligations, among others, to :

(i)  Apply “anxious scrutiny”.  A decision-maker/the Board should adopt a fair procedure in reaching a rational decision   by giving a claimant/an applicant every reasonable opportunity to establish his claim.

(ii)  Consider all relevant considerations, including taking into account every factor that might tell in favour of a claimant/an applicant.

(iii)  Adopt an active role by drawing attention to a claimant/ an applicant “matters that needed clarification or elaboration so that they can be addressed by” the claimant/the applicant.  This is important, as a decision-maker/the Board cannot assume that a claimant/an applicant can foresee all the points troubling a decision-maker/the Board.

(iv)  Give a claimant/an applicant a reasonable opportunity to address any issues that may result in adverse credibility findings, so that a claimant may address the case against him.

(v)  Evaluate information that goes “beyond the testimony of the applicant and include[s] in-country reports, expert testimony”, and attach weight to everything that is capable of having a bearing, be it great or little.

(vi)  Conduct the credibility assessment with a structured approach in relation to detail, specificity, internal consistency and consistency with a basis or foundation in the evidence by looking at the applicant’s case in the round.

16.  In the present case, apart from rejecting the applicant’s account of torture by the Police for the reason of lacking evidence, the Board appeared to have not made any adverse finding on the applicant’s credibility.  In other words, the Board must have substantially accepted the applicant’s following account of events detailed in the Director’s Decision that eventually led to the applicant’s departure from Sri Lanka:

(i)  White-van abduction by the Indian Army which forcibly recruited the applicant to fight against the LTTE;

(ii)  After the retreat of the Indian Army, when the LTTE occupied the camp, the applicant was forced to fight 3 battles and was shot at the right thigh in cross‑fire in 1993;

(iii)  After his family paid bribe to the Police, the applicant was released with reporting condition that lasted for 6 months;

(iv)  Before he left Sri Lanka, the applicant was subjected to frequent assaults, detention and interrogation by the Police as well as being beaten by the Sinhalese and the Army;

(v)  The forced labour for LTTE on 15 July 2005

Irrational assessment of the risks of harm

17.  In the Director’s Decision [10.16], it stated that one of the applicant’s incisors broke and came off as a result of the torture by the Police.  As the Board rejected the applicant’s account of torture by the Police on the ground of lack of medical evidence, the Board would have been obliged to adopt a duty of joint endeavour[5] to properly investigate the applicant’s claim by investigating if the applicant had indeed lost an incisor that had resulted from past torture or ill-treatment.  The Board however did not make any reference to any broken incisor.  Hence, it seems that the Board’s assessment of the lack of torture by the Police was erroneous for it failed to adopt a high standard of fairness by making the proper investigation regarding a dental injury that could corroborate the applicant’s evidence.

18.  The above account, which the Board did not reject, seems to support the applicant’s previous involvement in LTTE. The applicant was subjected to abduction and torture by the Army and the Police as well as random assaults from the Sinhalese.  The Board’s conclusion of the lack of future risk of harm was largely due to the passage of time when the LTTE having been defeated appears to be irrational.  According to the references set out in the “Skeleton Submissions” (“Submissions”) annexed with the Board’s Decision prepared by the applicant’s counsel before the Board hearing, after the defeat of the LTTE, there were still disappearances of 65,000 people [6].

19.  In the Board’s Decision [2.12] and [14 (3)], the Board did not accept that the applicant’s belief that his name was on the Wanted List, and would be arrested if refouled.  However, the Board did not seem to have properly assessed the COI referred to in the Submissions regarding the arrest and detention of returnees arriving at the Sri Lankan Airport (Submissions [21]), and the surveillance (Submissions [22] to [23]).  Hence, it seems reasonably arguable that the Board’s conclusion was irrational and erroneous by rejecting the applicant’s belief on the ground that he could depart Sri Lanka without problem. 

State protection and internal relocation

20.  The Board did not consider the availability of state protection and the viability of internal relocation when dismissing the applicant’s claimed risks of harm.

21.  A high standard of fairness requires a Board to demonstrate that it has properly and independently assessed COI: A, B, C, D and E v Torture Claims Appeal Board, [2024] HKCA 471 at [33] – [34] when assessing the availability of o state protection and internal relocation.  By having failed to conduct any assessment, the Board appeared to have not properly considered the inadequacy of state protection referred to in the Submissions ([25]-[27].  Neither had the Board seemed to have assessed whether internal relocation would be viable given the fact that his closest family member had already obtained asylum granted by the Indian government (Submissions [34]).

22.  For the above reasons, it seems at least reasonably arguable that the Board’s Decision is wrong at law, tainted by procedural unfairness and that it does not meet the required high standards of fairness.

Conclusion

23.  In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable on those grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.  Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that he shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

Orders

25.  The Form 86 be amended on the court’s own motion.

26.  Leave is granted to the applicant to issue a judicial review application against the Board’s Decision.

27.  The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as an interested party.

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