Mohamed Naseer Mohamed Asmi and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1406/2018 on BabelCite. This High Court CFI judgment.
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicants’ claim of non-refoulement protection.
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HCAL 1406/2018 [2021] HKCFI 966 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1406 OF 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge C P Pang:
Observations for the applicants: Introduction 1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicants’ claim of non-refoulement protection. 2.The applicants are husband, wife and their two sons (who are minors). They will be referred to as A1, A2, A3 and A4 below, or collectively as the applicants. A1 is a national of Sri Lanka. A2 is a national of Indonesia. Their two sons are holders of Indonesian passports with residence visas to remain in Sri Lanka. A1 considered that sufficient and did not think it necessary for them to apply for Sri Lankan passports. A3 was born on 7 May 2006 in Sri Lanka and A4 on 25 January 2012 in Hong Kong. The whole family left Sri Lanka for China on 7 February 2015 and then sneaked into Hong Kong by boat unlawfully on 8 March 2015. In April 2015, the family surrendered to the Immigration Department and then lodged a non-refoulement claim. They were subsequently released on recognizance. 3.The facts of the case and the basis for the applicants’ non-refoulement claim are summarized at para [1-5] and chronology of events at [47] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicants would be harmed by the Islamic Trustee Board (“TB”) of the home town of A1 in Sri Lanka. A1 is a Muslim/ Moor and A2 also converted from a Christian to a Muslim in 2005. They were targeted by TB because A2 refused to follow straight Islam disciplines of wearing the abaya and hijab. Nor can A2-A4 return to Indonesia because A2’s parents are angry that A2 has married a man of different race and religion and they will harm her and her family, including her children, if they return to Indonesia. 4.The primary events alleged by A1 and A2 span over a number of years and succinctly summarized by the Adjudicator of the Board. I can do no better than quoting the chronology of events set out at [47]:
5.In brief, A1 and A2 met in Hong Kong in 2002. A2 previously worked in Hong Kong as a domestic helper. They got married in Sri Lanka in September 2005. A2 converted her religious belief to Islam. However, A2 found it hard to adapt to the Islamic tradition of wearing the abaya and hijab. Instead, she wore short dresses. This antagonized the TB of the town. After people of the TB visited the family to advise A1 to change A2 and A1 told them not to come again, there was a public denouncement at the mosque that A1 had married an Indonesia national who had been living in a way contrary to Islamic believes and urged the people to take appropriate action. Since then, the family received unnecessary bothers from “unwanted people”. A1 did not know these people. The events included a fight between these people and A1 and his friends, an attack to A1, an attempted kidnapping of A3 from his school, and window smashing and visits at the matrimonial home. A1 to A4 had previously lodged a torture claim but they withdrew their application in 2013. They were repatriated to Sri Lanka and Indonesia respectively. They came back illegally in March 2015 and later applied for non-refoulement claim. The Director’s decision 6.By a notice of decision dated 24 April 2017, the Director rejected the applicants’ non-refoulement claim. The Director found there were no substantial grounds for believing that there would be any real risk of their being harmed or killed upon return to Indonesia or Sri Lanka. He also found that the availability of reasonable state protection and internal relocation option in Indonesia and Sri Lanka would further lower or negate the perceived risk of harm. The decision covered torture risk[21], BOR 2 risk[22], BOR 3 risk[23], and persecution risk[24]. The applicants lodged an appeal/ petition to the Board against the Director’s decision. The Board’s decision 7.A hearing was conducted before the Board on 20 December 2017 and 5 January 2018. A1 and A2 gave evidence at the hearing. 8.By a decision dated 2 May 2018, the Board rejected the appeal/ petition of all applicants confirming the Director’s decision. The Board’s decision covered all applicable grounds. 9.The Board gave very detailed reasons for rejecting the applicants’ claim at paragraphs [56-161] of its decision. 10.In a nutshell, the Board’s reasons can be summarized as follows:
11.Accordingly, the Board dismissed all the applicants’ appeal on all applicable grounds. Application for leave to apply for judicial review 12.The applicants filed a Form 86 on 17 July 2018 for leave to apply for judicial review of the decision of the Board. In the form, A1 only put down his name as the applicant. However, he deposed in his affirmation that he was authorized by A2 to A4 to make the application. I therefore amend the Form 86 to include A2 to A4 as the applicants. 13.There has been no request for oral hearing. The application is therefore considered on the papers. 14.The applicants attached to the supporting affirmation their “Grounds of Appeal”. The grounds can be summarised as follows:
Discussion 15.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board. 16.When the applicants pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision. 17.In the present case, the Board in fact rejected all 4 applicants’ appeal/ petition mainly on the ground that it disbelieved the evidence of A1 and A2. The Board rejected their accounts of primary facts based on the major irreconcilable inconsistencies in the evidence of A1 and A2. Having carefully and meticulously evaluated all the evidence, it found that they are not truthful witnesses. On the factual findings, there would be no factual basis in support of any of the applicable grounds. And even if their accounts of events were accepted, the Board found there would be no real risk that the applicants would be subjected to any of the proscribed harm for international protection. Further, state protection will be available to them in their respective countries. They can also relocate to other parts of Sri Lanka. 18.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so. I found the grounds of review unmeritorious. 19.I will deal with the “Grounds of Appeal” by categories generally. The first category relates to the assessment of credibility and the complaint that it was not a fair assessment. I cannot agree that the Board predetermined A1 or A2 on their credibility with bias. The Adjudicator of the Board only reached her findings on their credibility after careful and meticulous examination of their evidence and pointing out the material inconsistencies and implausibility in their evidence. Credibility issue is a case specific finding within the province of the Board. Nor do I accept that it is reasonably arguable that the reasoning in the decision is defective. On the evidence, the findings are plainly open to the Board and I do not find any flaws in the reasoning or bias in its decision. 20.As regards the complaints in respect of the findings of availability of state protection and internal relocation alternative, the argument would not assist the applicants as the Board rejected their appeal mainly on the finding that the applicants failed to prove the alleged primary facts in support of their claim. In any event, the Board came to its findings after thorough consideration of relevant objective Country of Origin Information and circumstances of the applicants. The fact that A2 was an Indonesian and the personal circumstances of her two sons including their place of birth and that they are half Sri Lankan speaking English language were clearly known to and considered by the Board. The findings of the Board about the availability of state protection and internal relocation are entirely within the province of the Board and in my judgment not unreasonable on the evidence of the case. Indeed, even in their own case, the single objection of the TB was that A2 did not wear abaya and hijab when she was much younger. It is not their case that they were targeted for practicing their religious belief. I do not see any real risk that they would be pursued and harmed, if refouled, because A2 had worn short dresses more than 15 years ago. 21.I do not accept that the Board had failed to consider or properly consider relevant matters as alleged in the grounds of review. 22.I do not find any reasonable arguable basis to challenge the decision of the Board in relation to A1 and A2. Accordingly, I refuse to grant leave to them to commence the judicial review application. 23.I am conscious of the fact that A3 and A4 are minors. Their cases should be considered separately. The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971 and the Court’s subsequent cases. I will not repeat everything that has been said by the Court of Appeal. Suffice it to note firstly that non‑refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children. Ill‑treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child. 24.Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation. 25.A3 and A4’s claims were premised fundamentally on the parents’ claims that they would be harmed by the TB and parents of A2. A1 and A2 also sought to support the claimed risk to the children with the allegation that there had been an attempt to kidnap A3. 26.However, the Board after carefully considering the evidence of A1 and A2 separately and together disbelieved their evidence and the claimed primary events both in Sri Lanka and Indonesia. There would be no factual basis in support of the children’s claim on any of the applicable grounds. In any event, even if the alleged events were accepted, the Board found there is no real risk that the applicants would be subjected to any of the proscribed ill-treatment either in Sri Lanka or Indonesia. The Board referred to the personal circumstances of A3 and A4 including their place of birth, their Indonesian nationality and right of residence in Sri Lanka, and the language they speak. It emphasized that it realized the far-reaching impacts of its decision on the children’s lives. It is plain that the Board had effectively and specifically considered the case made in support of the parents’ and the children’s claim individually and rejected each of them in the way as they were advanced. I am of the view that A3 and A4’s non-refoulement claim in the present case had been properly dealt with by the Board. It had achieved high standards of fairness in dealing with their claim consistently with the propositions stated in Fabio. 27.Further, I have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of lack of legal representation before the Board. There is indeed no factual basis found by the Board in support of their claim. The “Grounds of Appeal” are also devoid of merits for A3 and A4. 28.In the premises, I also find that the two minors’ intended judicial review has no arguable merit. I will therefore treat the absence of legal representation for the two minors in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented as required under Order 80, rule 2 of the RHC given the lack of merits in their intended judicial review. 29.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in their decisions for each of the applicants. Nor do I see any failure on their part to apply high standards of fairness. 30.For the reasons given, there is no prospect of success in all the applicants’ intended application for judicial review. Disposition 31.Accordingly, I refuse to grant leave to A1 to A4 each to apply for judicial review. Dated 15 April 2021
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 [1] HB/172-173, §39: He claimed to have lost that passport near Hung Shui Kiu, Yuen Long, 10 days after he arrived in Hong Kong. HB = Hearing Bundle [2] HB/317 [3] HB/2, §4 [4] HB/334-336 [5] HB/95 [6] HB/110 [7] HB/323 [8] HB/96 [9] HB/120 [10] HB/3, §5 [11] A1 was issued a passport on 21 August 2013 but he claimed to have also lost it. [12] A2- HB/309, A3- HB/317, A4- HB/323 [13] See A2’s passport – HB/313; A1 lost his 2013 passport, but told me at the Hearing that he accompanied A2 on the trip. [14] HB/302 [15] HB/307 [16] HB/305 [17] HB/3, §7 [18] HB/97 [19] HB/121 [20] HB/290-293 [21] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. [22] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [23] This refers to the 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, Cap 383. [24] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. |
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