Mohamed Risme Rasheed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 321/2018

[2020] HKCFI 2050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 321 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be granted.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong legally on 9 August 2005 and thereafter overstayed.  He was arrested by the police on 24 July 2007.  The applicant submitted a torture claim under Part VIIC of the Immigration Ordinance, Cap 115, by way of written representation on 5 August 2007. On 22 January 2010, the applicant was convicted of breach of condition of stay by taking unapproved employment and was sentenced to three months’ imprisonment.  His completed torture claim form was submitted on 21 June 2013.

2.The applicant attended a screening interview on 22 August 2013.  The Director of Immigration (“the Director”) dismissed his claim by Notice of Decision (“the Decision”) on 19 September 2013 in respect of that claim.  In respect of BOR 3 and persecution risk, the applicant was notified of the refusal of his claim by Notice of Decision on 16 July 2015 and thereafter by Notice of Further Decision (re BOR 2) on 2 December 2016 (“the Further Decisions”).  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), dealt with his appeal, in respect of his torture claim, on the papers and refused it on 14 March 2014.  The applicant appealed the two Further Decisions which were heard by Mr Yu Cheuk‑man (“the 2^nd Adjudicator”) on 28 February 2017.  The 2^nd Adjudicator considered his appeal on all surviving applicable grounds including BOR 2 and refused his appeal on 22 February 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Sri Lankan national and a Muslim.  He was born on 21 August 1977, in Colombo.  He received 11 years of formal education and thereafter worked as a driver.  In 2004, the applicant says that he met a group of Tamils on the beach and became friendly with them as he spoke Tamil and Sinhalese.  He later met up with them in Kilinochi and they took him to the camp of the Liberation Tigers of Tamil Eelam (“LTTE”).  The applicant presumed they were members of LTTE but nothing more happened and he arranged to meet his Tamil friends again when they came to his home area.  They did this in July 2004 and indicated they would visit again on a regular basis.  At this point, the applicant became concerned about their affiliation with LTTE and the possibility that the authorities would connect him to them.  The applicant therefore moved to Akurana, which is some three hours by bus from his home.  Whilst he was away from home, the Tamils did not visit and so, in October 2004, he returned home.  Nothing happened until July 2005 when the police and army made enquiries locally about his association with LTTE although they did not seem to have approached the applicant directly.  Nor did he approach them to explain the situation.  Instead, he decided to leave Sri Lanka and come to Hong Kong via Thailand and Mainland China.  The applicant maintains that he was wanted for questioning as a terrorist and also he is likely to be persecuted by Buddhist nationalists for being a Muslim.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

7.The applicant is out of time for seeking judicial review of the Decision of the Adjudicator Mr Wesley Wong and has not sought an extension of time to do so and so this application is dealt with on the basis that it is a review of the Decision of the 2^nd Adjudicator Mr Yu Cheuk‑man dated 22 February 2018 and who dealt with all matters.  Despite the fact that the applicant’s torture claim had already been disposed of, the 2^nd Adjudicator analysed the applicant’s claim on all grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  Not surprisingly, the 2^nd Adjudicator did not find that the facts as established by the applicant reached the requisite standards for torture, CIDTP or BOR 2.

8.As for persecution risk, he appears to have dealt only with the claim arising from the applicant’s association with the LTTE members.  He does not seem to have considered the claim in respect of the Buddhist nationalist violence against Muslims in Sri Lanka.  In respect of LTTE, he found that the applicant had made a bare assertion as to his involvement (or lack of it) and also in respect of being wanted by the authorities, which was based solely upon hearsay evidence.  Although this issue has arisen since the applicant came to Hong Kong, it is a matter which should have been considered.

Leave to apply for judicial review

9.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decision of the 2^nd Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.There were very limited grounds of review which amounted to the adjudicator being unreasonable and him relying upon web reports without going to relevant sources.  The applicant has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers and grounds carefully.  I have looked in particular inter alia, into the suggestion that the applicant may be at risk of persecution as a result of his faith.  In my judgement, there is a reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there is a realistic prospect of success if he were to be granted leave.  I therefore grant leave for judicial review.

Dated the 26^th day of August 2020.

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