MEERASA MARIKKAN YAZEEN FAHIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2095/2019

[2025] HKCFI 2145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2095 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 Meerasa Marikkan Yazeen Fahim (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 21 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 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 born on 28 April 1972 in Errukkalampiddy, Mannar District, Sri Lanka. He and his family members are Muslims. He received class 10 education and had 10 years of work experience.

3.  The Applicant claimed that he faced risk of harm from the Liberation Tigers of Tamil Eelam (“LTTE”) and the Sri Lankan police. According to the Applicant, his family was driven out of their house (“House”) by the LTTE in around 1989. They moved to a refugee camp in Puttalam District, which was about 7 hours away from his home in Errukkalampiddy by bus.

4.  The Sri Lankan police occupied the House since 1991 and used it as a base to fight the LTTE. The Applicant’s mother had been asking the police for the return of the House since 1994 in vain.

5.  In around mid-1996, the Applicant encountered two members of the LTTE at a bus terminal and was taken to a LTTE camp. The LTTE chief asked the Applicant to chase the police out of the House or he would face severe consequences. The Applicant was then taken back to the bus terminal.

6.  About six months later, the Applicant was again taken by the LTTE members to their camp. They interrogated the Applicant about the lack of progress of driving the police out of the House and they accused him of supporting the government against the LTTE. They beat him with the handle of a rifle and with fists. The Applicant was released after two days and was driven to an unknown place. The LTTE members warned the Applicant that he would be in even greater trouble if he did not drive the police out of the House.

7.  The Applicant fled to India in 1997 to avoid the LTTE. Between 1997 and 2004, he went back to Sri Lanka frequently for business. He never encountered the LTTE in any of his visits. Between 2003 and 2004, whenever he visited his family in Sri Lanka, the police would interrogate him about the LTTE.

8.  The Applicant returned to Sri Lanka in late 2004 and was taken by the Sri Lankan police on around 1 January 2005 for being a suspected LTTE informant. They asked the Applicant to provide information on the LTTE and they slapped him and kicked him for about 5 to 10 minutes. The Applicant was released on the next day.

9.  The Applicant feared that his life was in danger, so he fled to Hong Kong via Bangkok in January 2005. He did not encounter any difficulty while leaving Sri Lanka via the official channel. He claimed that he could not report his encounters with the LTTE to the Sri Lankan police for fear of being associated with them. He also claimed that the Sri Lankan police refused to return the House to his family and some LTTE members continued to pressure his family to seek the return of the House from the police.

10.  The Applicant claimed that if he were to be returned to Sri Lanka, he would be harmed or killed by both the LTTE and the Sri Lankan police due to the forceful occupation of the House by the Sri Lankan police. He also claimed that the Muslim population in Sri Lanka had also been targeted by the Buddhists.

11.  The Applicant arrived in Hong Kong on 10 January 2005. He was permitted to stay as a visitor until 9 February 2005. He overstayed and filed a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).

12.  The CAT Claim was rejected by the Director on 5 February 2013 and his appeal against that decision was rejected by the Board on 10 April 2013.

13.  The Applicant then lodged the NRC by written representation dated 9 May 2013. The Director assessed the NRC on the following grounds under the unified screening mechanism (other than the CAT Claim) (“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”) (“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 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 (“Refugees Convention”).

14.  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.

15.  On 23 July 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”). In the Form 86, the Applicant named the Board as the proposed respondent and the interested party.

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 did not put forward any ground for his intended judicial review. He only wrote that he was not satisfied with the Board’s Decision and that Muslim and Tamil-speaking people faced problems with Sinhalese people and the police.

20.  In the Supporting Affirmation, the Applicant deposed that the Board’s Decision was unfair because it would be dangerous for him to return to Sri Lanka. He claimed that the Tamil-speaking people and the Muslims in Sri Lanka faced persecution from Buddhists and Buddhist monks.

21.  The Applicant exhibited to the Supporting Affirmation the Board’s Decision and some country of origin information (“COI”) on bombing and shooting incidents as well as attacks on Christians and Muslims in Sri Lanka. He also produced documents showing that the House was occupied by the Sri Lankan police. He had submitted similar documents to the Board at the hearing of the Appeal before the Board which were considered by the Board (§§10(i) and 11-12 of the Board’s Decision).

22.  The Board noted that there were some discrepancies in the Applicant’s evidence but was prepared to accept the centerpiece story of the NRC (§§34-35 and 68-80 of the Board’s Decision). As the Board had accepted the centerpiece story of the Applicant and had considered similar documents submitted by the Applicant at the hearing of the Appeal, the COI exhibited to the Supporting Affirmation added nothing to the Applicant’s case.

23.  The Board found that the risks of harm faced by the Applicant from the LTTE members and the Sri Lankan police did not attain a minimum level of severity (§§39-40 of the Board’s Decision). It found that the injuries suffered by the Applicant in the past incidents were not serious and he did not have to receive dedicated treatments before recovering from the injuries. The Board considered the low intensity of past ill-treatment from the LTTE members and the Sri Lankan police in the past was indicative of a small future risk of harm upon the Applicant’s return to Sri Lanka. The Board was not persuaded that there was a real and personal chance that the Applicant would suffer serious harm in future, if he were to be refouled back to Sri Lanka.

24.  The Board found that the Applicant and his family, as Muslims as he alleged, had never experienced ill-treatment or harm in the past from Buddhist community. They had never received threats or violence from Buddhists, despite the Applicant’s claim that most of the people in his village area were Buddhists. There was no reliable evidence to show that the Applicant was personally at risk from the Buddhist community or from ongoing street violence.

25.  The Board further found that, based on credible COI, the Applicant could receive adequate state protection from the Sri Lankan police and the country’s Human Rights Commission (§§52-53 of the Board’s Decision). The Board further noted at §56 of the Board’s Decision that the Sri Lankan government took steps to crack down on the anti-Muslim riots by Buddhists in Sri Lanka in 2018. The Board did not accept that the Applicant faced risk from the Buddhist community upon his return (§86 of the Board’s Decision). It held that state protection would be available to him in Sri Lanka (§87 of the Board’s Decision).

26.  The Board further noted that the LTTE members were non-state actors and the alleged illegal actions taken by the Sri Lankan police were not representative of the stance of the Sri Lankan government as a whole (§§59-60 of the Board’s Decision). Further, the Board noted that the Applicant maintained regular contact with his family in Sri Lanka. More than 10 years had passed since the relevant incidents and there was no indication from his family that the LTTE or the Sri Lankan police remained interested in the Applicant (§85 of the Board’s Decision).

27.  The Board therefore found that the Applicant was not in need of non-refoulement protection.

28.  As pointed out in the Nupur Mst case (supra), assessment of evidence, COI 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.

29.  The Applicant attended the court hearing on 28 March 2025 and complained that the Board did not examine his submissions and documents carefully. The Board also did not check the COI sufficiently. He said that the current situation of his country was still dangerous for him to return.

30.  These complaints of the Applicant were bare assertions without particulars and supporting evidence.

31.  As pointed out above, the Board had considered the documents submitted to the Board at the hearing of the Appeal. The Board had also considered the COI submitted by the Applicant at different stages of his non-refoulement claim proceedings (§46 of the Board’s Decision)

32.  The Board had also set out in §§41-56 of the Board’s Decision in some details its consideration of the relevant COI. The Board had considered both COI produced by the Applicant and those produced by the Director. The COI materials obtained by the Board had been stringently scrutinized and checked for relevance (§§42 and 44 of the Board’s Decision). At the hearing of the Appeal, the Applicant was given a chance to respond; provide a full and informed explanation; refute the COI evidence referred to by the Board; or otherwise give his comments on the COI evidence obtained by the Board (§44 of the Board’s Decision). The Board had also devoted time at the hearing of the Appeal to consider various news report and COI as submitted by the Applicant. The Board had also fully considered the Applicant’s submissions. (§§55-56 and 86 of the Board’s Decision).

33.  Without particulars, the Applicant’s aforesaid complaints are not reasonably arguable for a judicial review.

34.  In disputing the Board's assessment on evidence, risk of harm, state protection and COI, 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.

35.  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 under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

36.  In §§95-116 of the Board’s Decision, the Board assessed the NRC under each of the applicable grounds of the USM (other than the CAT Claim). The Board was not satisfied that the Applicant had a genuine and well-founded fear of ill-treatment caused by one or more of the reasons referred to in Article 33 of the Refugees Convention. The Board found that the Applicant had failed to show that the alleged ill-treatment he would face if expelled would attain a minimum level of severity. He also failed to show a genuine and substantial risk of being subjected to the BOR 3 risk if he returned to Sri Lanka. The Board also found that the Applicant had failed to provide any evidence or information to establish a personal and real risk of being arbitrarily deprived of his life in violation of the BOR 2. The Board further found that state protection in Sri Lanka would be available, if required (§§50 and 102-103 of the Board’s Decision).

37.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These were 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

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