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

HCAL 407/2017

[2018] HKCFI 201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 407 OF 2017

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review of a Torture Claims Appeal Board decision. This applicant, “S” is a Sri Lankan national who entered Hong Kong illegally on 20 September 2006. On 21 September 2006, the applicant registered his case with the United Nations High Commissioner for Refugees (“UNHCR”). On 17 April 2007, he was arrested for remaining in Hong Kong illegally and lodged a non-refoulement protection claim several days later.

2.  This claim was rejected by the Director of Immigration (“the Director”) on 7 August 2015 and 25 October 2016.  The applicant filed an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which heard his appeal on 23 January 2017 and rejected it on 13 April 2017.  The applicant filed a notice of application for leave to apply for judicial review on 14 July 2017.

3.  His application for leave, under Order 53 Rule 4(1) should be made within three months of the TCAB decision.  This application is one day late.  There is an explanation in the amended Form 86 at Part IV from paras 76 - 78.  The legal principles for extension of time have been set out in AW v Director of Immigration & anor CACV 63/2015, 3 November 2015, §27, “while in the public law field, it is essential that the courts should scrutinise with care any delay in making an application…  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled”.  Significant factors that require consideration include the length of delay, the explanation offered for the delay, the merits of the substantive application and the question of prejudice to the applicant as well as public administration.

4.  In this case, from the papers it is obvious the applicant was clearly not sitting back; he was proactively pursuing this application.  The delay of just one day was de minimis and of little prejudice.  Moreover, as I go on to decide, his application had merits.  Therefore, an extension of time for the application for leave to apply for judicial review will be granted.

Background

5.  The applicant was born in 1983 in Jaffna, Sri Lanka which was under the control of the Liberation Tigers of Tamil Eelam (“LTTE”) who are also known as Tamil Tigers.  In about 1990, the Sri Lankan army captured Jaffna; there was civil war and it was very intense and violent.  The army assumed that everybody in the area were Tamil Tigers.  The applicant’s family moved away to another village to try and live a normal life.  In 1995, the applicant’s elder brother was forcibly recruited by the Tamil Tigers, his family could not stop it.  To date, they do not know if he is dead or alive.

6.  In 1998 when the applicant was 16 the army captured that village.  The army were targeting young men of around that age; they were often arrested and even killed.  The applicant decided to leave alone and went to a village where his grandmother lived but he supported himself and worked in a garage.  The Tamil Tigers wanted to help young Tamils work or study and offered opportunities.  The garage was owned by the LTTE and he worked there for three years.  He became a driver for them in 2001, transporting food between camps and although not a member he was allowed to enter camps which meant he had to have some sort of identification document.  He did take orders from a few people and he assumed they were probably LTTE members.

7.  In June 2002 peace talks began between the army and the LTTE.  Young people began to travel more freely around the country and the applicant worked for an Indian company as a driver in an army controlled area between 2003 and 2006.  He then bought his own vehicle and started work as a driver for hire during the holidays.

8.  However in 2006 conflicts resumed between the army and the LTTE.  A co-worker who he met when they were drivers for LTTE was shot dead by, they suspected, the army and he died.  People from LTTE controlled areas would be targeted so the applicant did not return to his house and fled back to his previous home and garage where he used to work and resumed working as a driver for the LTTE.  His parents told him that some unknown people had gone to their home looking for him.  He assumed they were from the army.

9.  About two months after he went back to the garage, the LTTE sent him to work with others at what turned out to be a training camp.  The applicant had no real affiliation with LTTE until then but now had no choice and had to stay at the camp and train for two to three months.  It was enclosed, surrounded by a wall topped with barbed wire and gated.  The applicant was made to train, sing LTTE anthems and read their material but he often made mistakes and was beaten frequently with wooden sticks.  He did not want to join their movement and eventually escaped one morning with another man.  He made it home to his parent’s village and stayed there for two months.

10.  The applicant was arrested by the police on 2 August 2006 whilst at home and detained at the police station and then a prison until 1 September 2006.  He was told the police suspected him of being a LTTE member.  The conditions in prison were truly horrendous and he was interrogated once a day; told to confess he was a LTTE member.  He was often beaten, kicked and hit with the butt of guns. His mother hired a lawyer who managed to have him released on bail on 2 September 2006 and he had to report back to court in November 2006.  However, as soon as he was bailed out his family arranged for him to leave Sri Lanka for Mainland China on 9 September 2006.  He did not use his own passport because they were worried his name was on a stop list at the airport.

11.  After he left Sri Lanka, several arrest warrants were sent to the applicant’s home and people continued to come on several occasions in 2007 as well as in 2008 searching for the applicant.  The applicant’s mother ended up living in a camp run by the United Nations before living with her brother.  Because of threats to arrest her other children if the applicant did not surrender, his mother sent his two younger brothers away as well and they are currently in Switzerland.  Only his two younger sisters remain in Sri Lanka.

The TCAB decision

12.  The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A (2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

13.  The adjudicator of the TCAB is required to treat the appeal/petition as a rehearing.  It requires a fresh and independent decision of the claim by the adjudicator; X v TCAB HCAL 143/2013, 4 September 2014 Zervos J §29.  The adjudicator does not discharge an appellate role.  The adjudicator does correctly set out the law and key legal principles relevant to the four applicable grounds in her decision.

14.  During the oral hearing the applicant answered questions and gave evidence.  The adjudicator found inconsistencies when she compared this with his documentary evidence.  She made a finding that “these major discrepancies casted grave doubts on S’s credibility”.

15.  She considered Country of Origin (“COI”) information that relate to the Tamil Tigers, the end of the civil war, the country information and guidance on Sri Lanka and Tamil separatism, the safety of returned asylum seekers to Sri Lanka and lastly religious and ethnic discrimination suffered by Tamils.  Despite her finding about his credibility, she did go on to apply his claim and his evidence to all four applicable grounds and concluded “S” had not substantiated a case on any of the applicable grounds.

Leave to apply for judicial review

16.  The test in granting leave for judicial review proceedings is whether the judicial review grounds are reasonably arguable with a realistic prospect of success.

17.  The court plays a supervisory role and will consider several crucial issues:

(a)   were there any errors of law;

(b)   did the procedures adopted at the hearing the petition/appeal satisfy the high standard of fairness required; and

(c)   did the substantive decision satisfy the enhanced Wednesbury test.

18.  The standard of review is that of “rigourous examination and anxious scrutiny” to ensure that the required high standards of high fairness have been met.  (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 45).

19.  The amended notice sets out three grounds;

(1)   illegality/irrationality; the adjudicator committed errors of law and/or misdirected herself in law;

(2)   irrationality/procedural irregularity; failure to make sufficient enquiry into the country conditions relevant at the time of the appeal; and

(3)   further or in the alternative; illegality/irrationality; on the information before the board, the adjudicator failed to take into account relevant factors and/or took into account irrelevant factors so assessment was still flawed.

Ground 1

20.  Ground 1 can be divided into three parts.  The adjudicator made an error in relying on the guarantee of the Sri Lankan Minister of External Affairs given during an interview with an Australian media outlet on 25 June 2013 when rejecting the applicant’s claim.  He guaranteed the safety of people returning to Sri Lanka after they have failed in their asylum claims in countries such as Australia.  She fully accepted the guarantee at its face value without any assessment as has been considered necessary by the UNHCR, the European Court of Human Rights as well as the Federal Court of Canada.  References to those bodies and cases from those courts are set out in detail in the amended Form 86 under Ground 1, paras 118‑129.

21.  Mr Ngan, counsel for the applicant, submits the concept of “diplomatic assurances” is well-established in international human rights law and should only be relied upon if properly assessed and considered reliable.  The adjudicator here seems unaware of the principles regarding diplomatic assurances and the factors that a receiving State should take into account when considering whether such assurances can be relied upon and if she does, she has certainly not made reference to them.  He submits that to place any weight on that guarantee in rejecting the applicant’s claim is a material error.

22.  The second part to ground 1 is a submission that the adjudicator failed to apply the relevant legal principles when assessing the applicant’s credibility.  She made a finding that major discrepancies casted grave doubts on his credibility. However, Mr Ngan identifies only one discrepancy and that is the applicant gave conflicting explanations as to how he escaped from the LTTE training camp in early 2006.

23.  A reading of the TCAB decision shows this comes from para 43 where the adjudicator identifies this inconsistency between his evidence in his non‑refoulement claim form and record of screening interview evidence.  However, if one reads para 42 as well as 44 then, it would seem the adjudicator has identified more inconsistencies. Unfortunately, the way it has been phrased and set out in paragraphs may explain Mr Ngan’s confusion.

24.  Alternatively, if Mr Ngan’s interpretation of the decision is correct and indeed the only inconsistency is whether the applicant escaped the LTTE camp where he had been forcibly recruited to because his training officer was late on that occasion or when he had been sent out to collect firewood then it is indeed a minor inconsistency that should not undermine the credibility of the asserted fact.  It is certainly not a major discrepancy that should cast grave doubt.

25.  In any event, I see no reference to the legal principles and relevant authorities that are very specific to assessing the credibility of asylum seekers and this is in fact a criticism from the applicant.  It may be that the adjudicator is well aware of them but there is no evidence of this in her decision.

26.  There is also no evidence in the decision that the adjudicator addressed these major discrepancies with the applicant and asked for an explanation.  In accordance with the principle of the high standard of fairness required, the applicant should have been given an opportunity to explain any evidence considered inconsistent by the adjudicator before it is weighed against him.  Then, the adjudicator should explain why she does not accept any explanation offered.

27.  There is another reference to his credibility and that is the adjudicator does not believe what he says and that is he was arrested by the police on suspicion of being a LTTE member.  She bases this on the police report dated 1 September 2006 and its contents.  There is a sentence she quotes, “so far the enquires is carried out reveals from the information gathered that this person is unimportant for any offences is suspected of being connected”.  This leads her to find that “this refuted S’s claim that he was arrested on suspicion of being a core LTTE member…  The fact there were warrants issued for his arrest arose out of his failure to answer bail, and not on suspicion of his being a LTTE member.  This is a predicament of S’s own making.”

28.  However, that finding is contradicted by Mr Ngan in his submissions.  Having seen in the amended Form 86 more of the said police report quoted at para 180, it is without a doubt a fact the applicant was arrested on suspicion of being a LTTE member.  That sentence quoted by the adjudicator was to inform the court during the applicant’s bail application that to date, so far, the police investigations had not yet revealed he was an important person.  Apparently the investigation was ongoing and hence the need for bail.  It is a misunderstanding by the adjudicator which is serious.

29.  There is an allegation that the adjudicator kept on stating that she did not accept some of the applicant’s factual assertions because he had not adduced any evidence which was inconsistent with legal principles for assessing the credibility of refugees but I am unable to find those many statements in her decision.

30.  The third part to ground 1 is a submission that the adjudicator erred in finding the applicant had not been subjected to ill-treatment or conduct which attains the necessary minimum level of severity.  The applicant’s claim was that he had been tortured and had scars on his body and his fingers showed physical problems yet no one went into detail as to how the scars were obtained.  No medical examination was considered.  Mr Ngan submitted the Istanbul protocol was not followed and the adjudicator did not investigate his injuries to consider whether or not he had been tortured or ill-treated in the past.  The finding that he had not been subjected to conduct or act which attained the level of severity in pain or suffering was made without thorough investigation.

31.  The adjudicator is also said to have erred in finding that the consequences that might happen to him when refouled to Sri Lanka “arose only from, inherent in or incidental to lawful sanctions” which is excluded from the definition of torture.  This means that he deliberately failed to answer bail and fled the country so the consequences are of his own making. Mr Ngan submits the application of the lawful sanctions exception is used rarely, controversially and in this case wrongly, considering the COI information she should have taken into account (more of this in ground 2) as well as the legal principles he quotes from a UN Commission on Human Rights report dated 10 January 1997, see para 135 of Form 86.  He submits if she had considered relevant and up-to-date COI information she would not have considered the application of lawful sanctions.

32.  After hearing submissions on the three areas highlighted in ground 1, I find merit in this ground; it is reasonably arguable.

Ground 2

33.  Ground 2 is a criticism of the adjudicator failing to make sufficient enquiry into the COI information and country conditions relevant at the time of the appeal.  This failing was a procedural irregularity.  Essentially there was long time gap between the determination of the Director and that of the adjudicator and this is significant.  In her decision, the adjudicator considered and referred to two reports published by the Department of State of the government of the United States of America in July 2014 and June 2015.  She also relied on the Country guidance published by the Home Office of the UK government dated 28 August 2014 as well as the Country information reports published in July 2013 by the Department of Foreign Affairs and Trade of the Australian government.

34.  It was submitted that the adjudicator was relying on these reports but they were outdated at the time of her decision. Both reports of the USA government had been materially updated in 2016 and 2017 between the Director’s decision and her decision.  The UK Home Office report had been updated twice, the last time on 28 March 2017.  The Australian Government Department of foreign affairs and trade report was updated in January 2017.  In the Form 86 the updated material has been set out.

35.  The updated material reports that torture remains a common practice in both criminal and national security cases and was used to extract confessions.  The reported victims discussed were Tamil men.  There was concern that the Sri Lankan authorities were abusing the Prevention of Terrorism Act under which arrest, detention and ill-treatment were made was on the rise since 2014 in particular against Tamils suspected to have a connection with LTTE.  The Australian government report opined that the “Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country.”  It referred to evidence from an expert given in the UK’s Upper Tribunal of the authorities collecting and maintaining intelligence on former LTTE members and supporters from stop and watch electronic databases.  Stop lists include names of those individuals that have an extant court order, arrest warrant or order to impound their Sri Lankan passport.  There are media reports that individuals, mostly Tamils, travelling from the UK have been detained on arrival at the airport.  This applicant is potentially such an individual with arrest warrants issued in his name.

36.  The applicant argues that this updated material is highly relevant to him (as a Tamil male previously arrested as a suspected LTTE supporter) and his claim and should have been considered by the adjudicator.  This COI information was not updated in the hearing bundle and not updated during the adjourned period before her determination date by the adjudicator.  This updated information all came to light after the country guidance case of GJ (post-Civil War: returnees) Sri Lanka.  It is submitted that if this significant updated information was not considered then the adjudicator’s assessment cannot be safe and should not stand.

37.  COI information is updated from time to time but normally not too drastically or materially.  However, in the case of Sri Lanka, there must have been obviously reasons for the updates to be material and significant.  I am sure it is unusual for so much COI information to be updated but it would be prejudicial to the applicant who was in person if the adjudicator did not ensure the information she relied upon was the most recent.  A check online would ensure this was the case and an up-to-date list of COI information in the appeal bundle should be endeavoured to be provided to both the applicant and the adjudicator.

38.  In light of the number of publications updated and in light of the material updates themselves, the second ground is reasonably arguable and has merit.

Conclusion

39.  As a result of my finding above, it is not necessary to go into the merits of ground 3 which essentially was an alternative ground to the second.  There is a reasonably arguable case on the first two grounds.  Therefore, as there is a realistic prospect of success I grant leave to apply for judicial review of the decision of the TCAB dated 13 April 2017.