MOHAMED MOHAMED RIZAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 819/2020

[2024] HKCFI 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 819 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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 May 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 2 April 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 January 2014(the “2014 Notice”) and 20 September 2018 (the “2018 Notice”, collectively, the “Notices”). 

2.  The Applicant is a Sri Lankan national.  He entered Hong Kong on 15 October 2003 as a visitor and was permitted to remain for 30 days.  He overstayed and was arrested on 12 November 2006.  On 2 August 2007, he raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”).  The Director rejected his claim in the 2014 Notice.  He appealed to the Board against the 2014 Notice.

3.  Following the implementation of the Unified Screening Mechanism (“USM”), the Applicant’s claim was also assessed on BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. By the 2018 Notice, the Director rejected his remaining claims.  The Applicant also appealed against the 2018 Notice.  His appeals against the two Notices were heard together and dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the torture claim form (“TCF”) and supplementary claim form (“SCF”) prepared by him with legal assistance and the record of his screening interviews in the presence of his lawyer.  In gist, he claims that upon his return to Sri Lanka, he would be harmed by members of the Liberation Tamil Tiger Eelam (“LTTE”) for allegedly providing information regarding them to the Sri Lankan police, the Sri Lankan police for his alleged connection with LTTE and the Sinahala Buddhists for being a Muslim.

5.  The Applicant, now aged 39, grew up in Galle, Sri Lanka.  He received 11 years of education and obtained a General Certificate of Education.  He worked in his father’s jewellery shop as a general assistance for 1 year and 9 months.

6.  In the evening of 4 September 2003, the Applicant was purchasing food in Galle, Sri Lanka where he encountered two individuals, Kumar and Krishna.  They identified themselves as tourists from Tamil Nadu, India.  Recognizing the Applicant as a Muslim by his cap, they requested his assistance in finding hotel accommodation for them.  The Applicant helped and led them to the Mihiri Hotel. 

7.  Three days later, on 7 September 2003, the Applicant was contacted by Kumar and Krishna to take them for sightseeing in Galle, which included visits to military camps.  After the trip, the Applicant took them home and introduced them to his family.  He took them on additional sightseeing trips on the following two Sundays and one weekday. 

8.  On 24 September 2003, the Applicant saw two or three police officers beating Krishna outside Mihiri Hotel. The Applicant did not intervene.  He thought Krishna was being arrested for an offence committed under the influence of alcohol.  Later that evening, while the Applicant was on his way home, he met Kumar.  Kumar lured him to a dimly-lit place.  Then two men appeared.  Kumar and the men grabbed the Applicant and revealed themselves as members of the LTTE.  They assaulted the Applicant with bare fists and kicked him for 15 to 20 minutes, accusing him of providing information about them to the police.  They also put a gun in his mouth.  The Applicant vehemently denied any involvement in Krishna’s arrest.  He suffered bruises from the attack.  Kumar threatened to kill the Applicant, harm his family and burn down his father’s shop unless he found another place for them to stay.  The Applicant did not dare to inform the police about the incident because Kumar was a member of the LTTE.  He did not seek medical treatment for fear that he would be asked about his injuries. 

9.  On the next day, the Applicant arranged for Kumar and his two men to stay in his friend’s vacant house for four days.  Three or four days later, on around 28 or 29 September 2003, the police searched his friend’s house but found no one there.  They also searched the Applicant’s house on that day.  The police allegedly told his father that Krishna had claimed that the Applicant assisted him and Kumar. At his father’s suggestion, the Applicant went to hide in his uncle’s house in Colombo where he stayed for about a week. 

10.  A few days later, some LTTE members visited his uncle’s house when the Applicant happened to be out. They assaulted the Applicant’s uncle and aunt and damaged their property for not disclosing the Applicant’s whereabouts.  They also threatened to kill the Applicant and his family if a police report was made.

11.  The Applicant fled Sri Lanka for Hong Kong on 15 October 2003.  While in Hong Kong, he learnt from his father that the police visited his father’s home asking for his whereabouts every month.  The police said that the Applicant was responsible for a bomb attack by the LTTE because he showed the LTTE people around in Galle.

12.  The Applicant believes it would not be safe for him to return to Sri Lanka because both the LTTE and the Sri Lankan police were looking for him.  Both the police stations in Galle and Colombo had issued arrest warrants against him before he left Sri Lanka and he had been put on the wanted list since 2006.  He claims that LTTE, the Buddhists and the police in Sri Lanka have joined force in persecuting Muslims in the country.  He does not believe internal relocation would be feasible because both the LTTE and the Sri Lankan government had extensive networks. 

The finding of the Board

13.  The Board found the Applicant’s evidence was contradictory, inconsistent and incredible.  It identified three major problems with his evidence at paragraph 21 of the Decision.  First, the Applicant claimed that when LTTE members visited his uncle, they asked him for his nephew’s whereabouts.  When asked how the LTTE knew he was his uncle’s nephew, the Applicant replied that his uncle told the assailants their relationship after they had beaten him up.  The Board found it incredible that his uncle would have volunteered this information when his uncle was simply asked for his whereabouts.  Furthermore, the Applicant was not present during the attack and he could not have given a detailed description of what happened during the attack, as he did.

14.  Second, the Applicant gave two conflicting accounts about the visit by the police to his father’s home.  In the TCF, he said that the police visited his father’s home when he had been in Colombo for about a week, while during the screening interview he said that the police visited his father’s home before he went to Colombo.  Further, the alleged account in the screening interview was illogical because on that account, the police showed his father two arrest warrants, one of which was issued by the Colombo authorities.  If that were true, it was incredible that his father would have sent him to Colombo where the police was already looking for him.

15.  Third, the Applicant claimed in the TCF that the LTTE members came to his uncle’s house to look for him but in the screening interview he claimed that both the LTTE and the Sri Lankan police went to his uncle’s house to look for him.

16.  Despite these adverse observations, the Board did not seem to have rejected the Applicant’s claim on the basis that his evidence was incredible.  It considered authoritative and credible country of origin information (“COI”), and came to the conclusion that the LTTE was a “spent force” and no longer engaged in terrorism after the end of the civil war in May 2009. 

17.  It also found that the Sri Lankan authorities were well-aware of their poor human rights record and stopped ill-treating citizens returning to the country.  There were objective COI showing that the authorities have been making responsive and pragmatic reforms and taking measures to improve the human rights conditions in Sri Lanka. The government is also committed to establish a fair and transparent judicial system.  The Board therefore did not accept that the Applicant would face risks from either the LTTE or the Sri Lankan authorities if returned to Sri Lanka. It found that adequate state protection would be available to him upon his return and internal relocation a feasible option to avoid the risk of harm.

18.  As for the Applicant’s alleged fear of persecution by anti-Muslim elements as related to him by his father, the Board found on the basis of the COI, that the persecution incident followed after the Easter Sunday bombing by Islamist militants in 2019.  The Board assessed such attacks were one off incidents which do not recur frequently and that there was no evidence to suggest an increase of anti-Muslim sentiment.  It found the Applicant’s fear speculative and baseless.

19.  For the above reasons, the Board found it safe for the Applicant to return to Sri Lanka.

20.  In respect of his claim under Torture Risk ground, the Board found the LTTE assailants who ill-treated him or his family were not public officials or persons acting in an official capacity.  Hence, the Board considered the risk of torture from them did not meet the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

21.  The risk which BOR 2 protects is related to genocide and death sentence being passed on the Applicant.  The Board found he had failed to establish that he faced any of those risks and that adequate state protection would be available to prevent the risk of harm from LTTE, the police and the Buddhists.

22.  As for his claim under BOR 3 Risk ground, the Board found the ill-treatment he suffered in the past were minor injuries which did not attain a minimum level of severity.  It also found the LTTE was a spent force.  Hence, the Board found the Applicant had failed to show he would suffer any proscribed risk of harm in future.

23.  In relation to Persecution Risk, the Board found that his fear of ill-treatment by the LTTE has dissipated after the end of the civil war in May 2009. 

24.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

25.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

26.  The Applicant did not advance any grounds for judicial review in the Form 86 or his supporting affirmation.  In response to the Court’s letter inviting submission, he replied reiterating his feared harm and his assertion that his life will be at risk returning to Sri Lanka. 

27.  After the legal principles in the preceding section had been explained to him, the Applicant raised a complaint of error of law.  He asked the Court to reconsider his case and complained that the Board had under-estimated his problem.  He said he had new evidence to support his claim and produced a huge bundle of documents of about 15 centimetres thick.  He said the evidence in some the documents had not been considered by the Board.  He said he had been held in detention for four months and asked to be released so that he could obtain more evidence in support of his claim.  A quick glance over the bundle showed that they are documents in the hearing bundle relating to his appeal against the two Notices before the Board, including, his TCF, his SCF, his record of screening interviews, COI, and his counsel’s and the Director’s submissions. These documents must have been placed before the Board when hearing the appeal.  The documents also include his correspondence with the government departments, the Duty Lawyer Service and the Legal Aid Department, which may not have much relevance to his claim.  In essence, the Applicant is seeking to challenge the Board’s finding of fact that he will not be at risk of any of the proscribed returning to Sri Lanka.  This is not permissible in a judicial review save for errors of law, procedural unfairness or irrationality in the decision.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

28.  The Applicant confirmed he had no complaint about procedural unfairness or irrationality in the Decision, but made a request that he be provided the decision of his leave application before the Immigration Department was informed.  Just to ease his concerns, the Court acceded to his request to issue a copy of the decision to the Immigration Department two days after the same had been sent to him by post. 

Discussion

29.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Though finding him incredible, the Board assessed his claim on the basis of the case as he asserted.  It tested his claim against authoritative and credible COI.  It found his feared risk of harm is not supported by the COI.  In essence, the Board found his feared harm from LTTE is speculative and unreal as LTTE is a spent force which is no longer active; that his feared harm from the Sri Lankan police force is contrary to the COI showing improvement in human rights protection and availability of state protection in Sri Lanka; and that his feared harm from anti-Muslim sentiment is speculative.  Hence, the Board found the Applicant will be safe returning to his home country.  Furthermore, it found as a matter of law, even on the Applicant’s own case, he is not entitled to protection under the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as they are finding of the law, they are absolutely correct.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.   

Conclusion

30.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

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