ABDUL RAHMAN FAIROOS MOHAMED ILLYAS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2322/2019

[2025] HKCFI 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2322 of 2019

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 12 August 2019 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 8 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 October 2018 (the “Notice”), refusing his application for non-refoulement protection.

Background

2.  The Applicant is a Sri Lankan national. He entered Hong Kong on 5 June 2017 as a visitor and overstayed since 8 June 2017. He surrendered to the Immigration Department on the same day and was released on recognizance on 5 July 2017. He made a non-refoulement claim on 31 May 2018. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now applies for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if returned to Sri Lanka, he will be harmed or killed by members of a Buddhist organization called Bodu Bala Sena (“BBS”) for refusing to pay them protection money and for reporting their demands and threats to the police.

4.  The Applicant, now aged 42, was born and raised in Horethuduwa, Moratuwa, Sri Lanka. He is married with three children. His parents, four siblings, wife, and children are living in Sri Lanka. He received formal education for 12 years. He had four to five years’ experience working as a shop manager.

5.  The Applicant operated his first cosmetic shop in Mount Lavania in 1999 (the “Shop”). He subsequently opened two other shops. All the shops were located within half a kilometre from each other. Then, one day in early 2017, the manager of the Shop told him that four to five BBS members had attended the Shop looking for him while he was away. One night in the same month, a drunken man suddenly walked into his Shop and threatened to burn it down and kill him. The Applicant ignored him as he was drunk.

6.  A week later, 10 to 12 BBS members went to the Shop. They asked him for protection money and threatened to burn down the Shop if he did not pay. They gave him two weeks to decide and left without injuring him. After a week, he received a call from the same group of BBS members asking for his decision. He said he would not comply with their demand, and would report to the police if they called again. They then threatened to kill him if he reported to the police and said they would call him back in a week. A week later, the BBS members called him about four to five times every day, but he ignored their calls. During the same week, a man from the communication centre called him and asked him loudly why he ignored their calls. He hanged up immediately and the man did not call back.

7.  On 17 March 2017, when he was alone in the Shop, the same 10 to 12 BBS members appeared and threatened to burn down the Shop the next day because he did not pay the protection money. They left without harming him. He went to Moratuwa Police Station to report the incident, but the officers refused to register his complaint. He then complained to Mount Lavania Police Station, which accepted his case. In the same evening, a BBS member called him and threatened to kill him because they knew he had filed a complaint against them.

8.  On the following day, his shop manager informed him that the same 10 to 12 BBS members had been to the Shop while he was away. They were angry because he had contacted the police, but they left without harming anyone. Around 15 days later, when he was working at his Shop, his wife called him and informed him that 10 to 12 BBS members had gone to their home to abuse her and threatened to kill him for filing a complaint against them with the police. He told her to move to her sister’s home in Warakapola with their children for safety reasons.

9.  The next day, he went to the police headquarter in Colombo to file a report. Although the affairs register his complaint, no follow-up action was taken. Then, he went to stay with his brother in Malwana. His brother advised him to go to Hong Kong for protection. Towards the end of April or the beginning of May 2017, his shop manager informed him that the Shop had been burnt down completely. The BBS members had taken no action against his other two shops. Nevertheless, he asked his brother to close them down.

10.  The Applicant came to Hong Kong in June 2017. While in Hong Kong, he learnt from his shop manager that the BBS members continued to threaten to kill him upon his return to Sri Lanka. He claimed that because of his worries for the safety of his family, his mood was low and he lost concentration from time to time. He was admitted to Pok Oi Hospital on 21 August 2018 and discharged on 25 August 2018.

11.  The Applicant claimed that state protection was not available because the BBS might have connection with the police in Sri Lanka. He does not believe internal relocation viable, as Sri Lanka is a very small country where news travels fast and people could be easily located.

The finding of the Board

12.  The Applicant testified before the Board. The Board drew adverse inference against his credibility because he did not claim protection as soon as practicable after arriving in Hong Kong. He represented to the immigration officer upon landing that he came to visit Hong Kong for business purpose. He was allowed to stay for three days until 8 June 2017. During the screening interview, when asked what he did during those three days, he said he just stayed inside a hostel doing nothing. It was not until ten months later on 31 May 2018 that he lodged the non-refoulement claim. The Board considered such intentional delay in making a claim detrimental to his credibility.

13.  The Board found his evidence confusing, inconsistent, contradictory and had serious doubts as to his circumstances in Sri Lanka, in particular his claim that he had operated three shops there. The Board considered it unconvincing that he could not produce any documentary evidence about the three shops that he had operated or evidence of the arson. It noted he had been hospitalized in Hong Kong for four days, diagnosed to have adjustment disorder, low mood and impaired concentration, and was prescribed medication for four weeks, but did not require follow up treatment. However, the Board considered his psychiatric condition could not explain the inconsistencies and contradictions in his evidence. Hereunder are some of his inconsistent and contradicting evidence.

14.  In his NCF, the Applicant said he opened his shop in 1999. However, he told the Board that he could not recall the year when he established his first shop. He said it was opened about six months after his marriage. Yet, he could not recall the year when he was married. He added that his daughter was born two years after his marriage and was nine as at the date of the hearing. Based on that information, the Board inferred that his first shop was established in 2008. Still, he was unable to confirm that was the case, due to his poor memory.

15.  He told the Board that the BBS members had not visited his house before his Shop was burnt down. But in his NCF, he said 10 to 12 BBS members had looked for him at his house before his shop was burnt down. When confronted with the inconsistency, he said he had poor memory and impaired concentration.

16.  In his NCF, he said he fled to his brother’s place in Malwana in the end of April 2017 before the Shop was burnt down, and that he was informed by his shop manager about the fire afterwards. However, he told the Board that after he received the news from his shop manager about the arson, he returned to the Shop, spent four hours there before moving to his brother’s home. When asked to account for the discrepancy, he again put the blame on his impaired concentration. The Board also found it remarkable that he did not report the arson to the police because of his belief that the police sided with the BBS members.

17.  As for the threats by the BBS members, it is his evidence that before he registered a complaint with the police, he had contact with them in person only on two occasions when they were extorting protection money from him. Although they visited the Shop and his house after that, they caused no trouble. The Board found there was insufficient evidence to support his assertion that the BBS members intended to cause him serious harm for his non-Buddhist religious belief. It is also his own evidence that they harassed him for protection money at first, and later avenged against him personally because he filed a complaint against them with the police. Hence, in the absence of any injury to him and his family, the Board did not accept that the BBS members had threatened or had genuine intention to kill him.

18.  Given the state of the evidence, including the lack of documentary evidence about his operation of the three shops and the arson, the Board found the Applicant incredible and rejected his evidence. It did not accept his claim that he had operated three shops one of which was burnt down by the BBS members. It considered it incredible that the BBS members, who allegedly wished to extract protection money from him would burn down his shop, as that would destroy the Applicant’s means to pay them. It also rejected his claim that the BBS members were backed by the local government. If it were, after knowing he had registered a complaint against them with the police, they would have acted with impunity and immediately avenged against him by vandalising his house and shops, and would not have delayed burning down the Shop.

19.  The Applicant said police protection is not available in Sri Lanka. The police either did not accept his complaint or did not take follow-up action. On his evidence, though Moratuwa Police Station did not accept his complaint, Mount Lavania Police Station did. In response to his further complaint, the Police Headquarters in Colombo also followed up his complaint by asking Mount Lavania Police Station about the progress. It was the Applicant’s own evidence that he believed the police would not take any action and hence did not follow up his complaint or attend the police station. There was no follow up because of lack of cooperation from the Applicant.

20.  On the basis of the objective country of origin information (“COI”), the Board accepted that though there are police failures and corruption in Sri Lanka, the same COI also suggested that there are objective indications that the Sri Lankan government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. Having regard to the above, the Board also considered that reasonable state protection is available to the Applicant in Sri Lanka.

21.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to Sri Lanka. Applying the law applicable to the non-refoulement protection under the USM to the above finding of facts, the Board found that 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. Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

22.  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[5].

Grounds for judicial review

23.  The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he stated that the Board did not understand his problem in his home country, and that he was unable to produce evidence to prove his case because he did not have enough time.

24.  After the legal principles in the preceding section and the Board’s finding of fact have been explained to him, the Applicant said he understood the Board’s Decision but disagreed with its finding of fact. He reiterated that he had explained his problem to the Board, but the Board did not give him any solution. He put the blame on his loss of memory. He said he had a medical report from the Hospital Authority which could explain his condition and asked for time to produce the report. In essence, he is challenging the finding of fact by the Board which is not permissible in an application for judicial review.

25.  In addition, the Applicant raised a new issue. He said that back in 2018, his wife told him that two warrants had been issued against him because he had disappeared and she was arrested. He said he had to return to Sri Lanka to appear before the court in Colombo on 24 April 2025 to answer the two warrants. He said he had not given this information to the court (presumably meaning the Board) before. What he said did not fit in with his claim that he was fleeing from Sri Lanka from risk of harm from the BBS. Whereas what he now says is that he is wanted in Sri Lanka for some, possibly, criminal proceedings. The fact that he was wanted in Sri Lanka and at risk of harm or ill-treatment for that reason was never raised before the Board or the Director. For what his submission was worth, the Court decided to err on the side of generosity and stood down the hearing until the afternoon for him to produce the medical report and such other documentary evidence as he wished this Court to consider.

26.  In the afternoon, the Applicant produced: (i) a Psychiatric Outpatient General Adult New Case Triage Form dated 25 August 2018; (ii) a document from the Sri Lanka Police Headquarters in Colombo, bearing reference number IGP/PAC10506/17 and dated 5 May 2017; and (iii) three documents from Sri Lankan Police asking him to attend the police station. Items (ii) and (iii) are in Tamil and he did not provide any translation. The above description of the documents was provided by him. Actually, the Board seemed to have considered the same or similar medical reports and documents: see paragraph 16 of the Board’s Decision.

27.  Item (i) is probably the same document as Item (a) described in paragraph 16 of the Decision as “Psychiatric Outpatient General Adult New Case triage Form” but allegedly dated 21 August 2018 (but the actual copy has not been discovered from the Director or the Board). It appears from the Decision that the contents of Item (i) and Item (a) are the same, except for the date. According to Item (i) and the description in Item (a) in the Decision, the Applicant scored five points and was categorised under Category 3, which is the lowest priority in the triage category. An identical copy of Item (i) dated 25 August 2018 is found attached to the copy of the Applicant’s NCF discovered from the Director. It would also have appeared in the hearing bundle before the Boar. Thus, it is obvious that this document had been presented before and considered by the Director and the Board.

28.  Item (ii) was mentioned in paragraph 16 of the Decision as item (c). According to the Decision, a copy of that document together with an uncertified translation allegedly prepared by the Duty Lawyer Service representing the Applicant before the Director had been presented to and considered by both the Director and the Board. In paragraph 6.52 and 6.53 of the Director’s Notice, the immigration officer noted that Item (ii) was issued by the Sri Lanka Police Headquarters in Colombo and that the Applicant said it was issued by the Police Headquarters to the Inspector General of Police (“IGP”) of Mount Lavania Police Station asking why no action had been taken on his complaint. It was probably issued to the senior officer in charge of Mount Lavania Police Station as there could only be one IGP in the entire Republic of Sri Lanka and not one in each of its many police stations.

29.  The Applicant repeated that he had to appear before the court in Colombo on 25 April 2025. He said if he is to be refouled to Sri Lanka before that date, he would be arrested at the airport and brought before the court, but he is mentally unstable to attend court. However, he said that if he is to be refouled on 23 April 2025, he could arrange to have a lawyer to meet him at the airport and accompany him to court. He believes the present Sri Lankan government will be more reasonable and will listen to him. He specifically said he would be happy to return to Colombo on 23 April 2025, but not before or after. He was advised to inform the Immigration Department of his above request as soon as possible after the hearing and to make his travel arrangement.

30.  Item (iii) is of little significance to the Applicant’s non-refoulement claim and to his hearing before the court in Colombo on 25 April 2025. It is probably the other documents considered by the Director in paragraph 6.52 of the Notice, ie the record of his complaint made in Mount Lavania Police Station.

31.  Summing up, the documents provided by the Applicant in the afternoon supported his claim about his impaired memory, that he had made a complaint to Mount Lavania Police Station about threat from the BBS members and also to the police headquarters in Colombo. Obviously, both the Board and the Director had considered these evidence. There is nothing to suggest that the Board and the Director disbelieved these aspects of his case. But the Board found as a fact on the totality of the evidence that the Applicant is not credible. It was unable to accept that his mental condition was such as could explain the inconsistencies and contradictions in his evidence. Because of the state of the evidence, it was not satisfied that he had operated three shops and had been threatened by members of the BBS and that his shop in Mount Lavania had been burnt down, though he made complaints about threats by the BBS members (but not about arson). On the contrary, the documents support the Board’s finding that adequate state protection is available. Though Moratuwa Police Station did not accept his complaint, Mount Lavania Police Station did. In response to his further complaint, the Police Headquarters in Colombo followed up his complaint by pressing Mount Lavania Police Station about the progress. It was the Applicant’s own evidence that he did not cooperate by following through his complaint because of his belief that the police sided with BBS and would not take any action. All these are finding of facts within the realm of the Board.

32.  As for his claim about the on-coming hearing in the court of Colombia on 25 April 2025, it is something new. But as explained in paragraph 25, it is difficult to see the nexus between that hearing and his non-refoulement claim. This Court has no power to make any finding of fact in relation to that issue. It could only bring the Applicant’s wish to the attention of the Director when he comes to make arrangements for the Applicant’s refoulement.

Overall scrutiny

33.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

34.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analyzed the evidence properly, tested it against common sense and inherent probability and gave detailed reasons for its finding. It found on the totality of the evidence that the Applicant is incredible and that his evidence is only party credible but partly not. It gave comprehensive reasons why it found the Applicant incredible and why despite medical evidence about his impaired concentration, it rejected the Applicant’s explanation for the inconsistencies and contradictions in his evidence. It was on that basis that the Board found the Applicant had failed to prove he had three shops one of which was burnt down by the BBS members pursuant to their threat. In other words, the Board found the Applicant had failed establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused.

35.  A copy of this decision is forwarded to the Director with a request that he considers the Applicant’s wish as expressed in paragraph 29 when making his refoulement arrangements.

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