MOHOMED RASEEN MOHOMED FAIZAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2689/2018

[2021] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2689 of 2018

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Sri Lanka. On 3 January 2003, he came to Hong Kong as a visitor. He overstayed and was arrested by police on 7 July 2007. On 13 July 2007, he lodged his non-refoulement claim with the Immigration Department.

5.  He claimed that if refouled, he would be harmed or killed by two ministers, their bodyguards and their subordinates/supporters (“the enemies”), the Bodu Bala Sena monks (“the monks”) and/or the police in Sri Lanka (“the police”).

6.  He had converted from supporter of the United National Party (“UNP”) to People Alliance Party (“PAP”). They are rival parties in Sri Lanka. He was the only Muslim in PAP, so he could muster Muslim voters for PAP, which caused UNP members to hate him. In 2001, he was kidnapped by 4-5 UNP supporters to an unknown place where he was tortured. He was injected with some substance and he fell unconscious. When he came round, he found himself in an open ground of a football pitch. He reported to police. They refused to make investigation.

7.  In the 2002 election meetings, he had some argument with the UNP supporters. One of the PAP members had killed a UNP member by stabbing him. The UNP members were looking for him. They went to his house and threatened his family that if they saw him, they would kill him. They also slapped his brother-in law at his home. His brother-in-law reported the matter to police. The police refused to make investigation into the matter. He moved to stay with his grandmother and his friends. His mother told him that the enemies had come to his home and threatened to kill him and his family members. They also threatened to rape his sister. He decided to leave Sri Lanka for Hong Kong.

8.  In 2006, whilst he was in Hong Kong, he was told that there had been a fight between the Muslims and the Sinhalese near his home in Sri Lanka. His brother and brother-in-law were attacked. The PAP member who had stabbed the UNP member to death was killed by the UNP people. The UNP people also harassed his family from time to time. They damaged the properties in the family house. They beat and slapped his brother-in-law and threatened that they would kill the applicant if they saw him. They had also attacked his brother and injured him. The enemies together with some police officers also came to his home in Sri Lanka to look for him from time to time. The enemies threatened to kill him. The police officers had a warrant to arrest him.

9.  Besides, there are the monks who have been discriminating Muslims. The monks and the UNP people were together. They had told the hospital staff not to render medical service to his nephew of one year and a half. As a result, his nephew died. They also burnt down his brother-in-law’s textile shop and vehicle. The matters were reported to police, who did not make investigation.

10.  Details of the story are set out in paragraph 18 of the Director’s Decision described below.

The Director’s Decision

11.  The Director, having dealt with the applicant’s torture claim previously, only considered his application in relation to the following risks:

a.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By Notice of Decision dated 25 November 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if her returned to Sri Lanka [27]; that state protection would be available to him [34.2(xii)] and that internal relocation was an option open to him [35].

The Board’s Decision

13.  The applicant appealed against the Director’s Decision to the Board. He attended the hearing before the Board on 26 June 2018.

14.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The Board, having considered the evidence with caution of the relevant legal guidelines, came to the conclusions on the facts of the case:

“42. I have unfortunately reached the firm conclusion, after carefully evaluating the appellant’s oral evidence, his previous statements, his behaviour in Hong Kong, the lack of key corroborative evidence and difficulties with the evidence that has been presented, that the material elements of his account can be given no credence whatsoever. His account was quite exceptionally vague, evasive and incoherent in relation to fundamentally important points and was self-contradictory. Furthermore, despite of the passage of some fifteen years since has arrival in Hong Kong, during a long period of which he has been legally represented, the appellant has failed to provide key corroborative evidence, which it is reasonable to expect he could have provided.

91. For all the reasons I have set out above, I conclude that none of the assertions made by the appellant, apart from the fact that he is a Muslim Sri Lankan, can be given any credence whatsoever.”

See paragraphs 43-90 of the Board’s Decision for reasons.

(2)  On the basis of the above findings, the Board rejected his claims on all the risks in paragraph 11 above.

Application for leave to apply for judicial review

15.  The applicant filed Form 86 on 27 November 2018 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, he said that he was unable to accept the Board’s Decision because the Board was presuming without considering the facts he faced in Sri Lanka. If the Board directly contact the authorities, it would find the truth, which it had failed to do and therefore it had denied him the right of humanitarian grounds.

DISCUSSION

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

19.  His grounds in support of this application do not assist his application because they are just his opinions without any specifics in support of them. The Board has obviously set out its reasons in detail in support of its conclusions. The applicant has not specified in what respects the Board had committed any error. It is not necessary to make direct contact with the authorities in this case.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

22.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his 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