Jl v. Torture Claims Appeal Board

HCAL 1479/2019

[2021] HKCFI 2177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1479 of 2019

BETWEEN

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 counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  leave to apply for Judicial Review granted;

2.  costs be in the cause; and

3.  the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Sri Lanka who arrived in Hong Kong on 17 November 2004 with permission to remain as a visitor up to 17 December 2004 when he did not depart and instead overstayed, and was arrested by police on 12 October 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the Sri Lankan authorities who suspected him to be involved with the Tamil military organization known as Liberation Tigers of Tamil Eelam (“LTTE”) or its breakaway faction Karuna group which were both considered as terrorist groups by the Sri Lankan government and/or due to his ethnicity/religion as a Tamil. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant, an ethnic Tamil, was born and raised in Jaffna, Kulammangal, Mallaham, Sri Lanka where his two maternal uncles had joined LTTE in their fight for an independent state of Tamil Eelam, and with many of his fellow students also eager to join LTTE including 4 of his closest classmates.

3.After leaving school the Applicant worked in the field of computer engineering, and in 1998 he moved with his family to the town of Chilaw as his parents did not want him to follow his 4 classmates to become involved with the LTTE in Jaffna.

4.In 2004 his grandmother who lived in his former district of Jaffna was sick and the Applicant was sent by his mother to Jaffna to look after his grandmother, during which he met up with his 4 former classmates who told him that they had left LTTE and were no longer involved in their activities. They continued with their chats into the evening when the Applicant then brought them to stay over at his grandmother’s place. 

5.However, on the following day some armed men in plain clothes came to his grandmother’s home when his classmates fled from the back of the house while those armed men gave chase. After a while those armed men came back and took the Applicant away blind folded in a vehicle to a place where he was kept in a room and was interrogated about his former classmates’ activities in LTTE and was threatened that he would be killed if he did not tell them the truth, during which he was told that his 4 classmates were suspected to have left LTTE to join its breakaway faction led by a former LTTE leader known as Karuna.

6.At night after those men had left the room, the Applicant managed to make his escape and fled to Chilaw but without returning to his home as he was warned by his mother that some armed men had come looking for him there, and as he suspected that they were either from the Sri Lankan authorities looking for him as he was thought to have been involved either with the LTTE or the Karuna group after his meeting with his classmates, or that they were LTTE people looking for him for information as to his classmates who had left them for the Karuna group, he therefore hid in the home of another relative in Chilaw, but as he remained fearful for his life, he departed Sri Lanka on 17 November 2004 for Hong Kong where he made a refugee application to the UNHCR, and after it was rejected he then raised his torture claim with the Immigration Department later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 18 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 30 October 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds under the Unified Screening Mechanism (“USM”) including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed ill-treatment from the Sri Lankan authorities would materialize in the absence of any evidence that those armed men who abducted him were from the Sri Lankan authorities other than his own speculation and the fact that he was able to leave Sri Lanka without any problem, that in any event LTTE had since been defeated by the Sri Lankan government and with no further activities in Sri Lanka that there will not be any risk of the Applicant being arrested by the authorities upon his return to Sri Lanka, and that he does not fit the profile of anyone of interest to the Sri Lankan authorities or a target of the government that there is no risk of any ill-treatment from the government that his claim for non-refoulement protection failed on all applicable grounds.

9.By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

10.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 13 November 2015, and for which he attended an oral hearing on 5 September 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 2 May 2019 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found some of the Applicant’s assertions of fact which formed the core of his claim inherently implausible and based on hearsay and second-hand hearsay which undermined his general credibility, that during the interviews he was unable to adequately explain or clarify the many contradictions and extraordinary inconsistencies in his evidence that it was not persuaded that he had given a truthful or reliable account of past events in which he said he was personally involved or had witnessed that it was unable to attach any weights to his assertions of fact which relate to his claimed past experiences in Sri Lanka, and the fact that he was able to have his passport renewed before his departure from Sri Lanka indicates that the Government of Sri Lanka did not have any adverse interest in him that it concluded that the Applicant had failed to establish that he would be subjected to ill-treatment of any sort if refouled to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.     

12.On 31 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision (“Decision”), and put forth the following grounds, as amended after he was subsequently granted Legal Aid, for his intended challenge:

(1)  Illegality: Failure to provide adequate reasons for the decision;

(2)  Illegality: Error in law/misdirection in law in assessing the credibility of the Applicant; and

(3)  Illegality: Failure to consider all bases of the Applicant’s non-refoulement claim.  

13.At the hearing of his leave application, the Applicant was represented by Mr Francis Ngan of Counsel assigned by the Director of Legal Aid and with submissions made on his behalf in respect of each of the proposed grounds for his intended challenge, of which I shall next consider, starting first with Ground (2) regarding the Board’s assessment of credibility which would in my view be relevant before turning to Ground (1) as to its failure to provide reasons for the Decision.

Ground (2) – Illegality: Error in Law/Misdirection in assessing Credibility of Applicant

14.For its assessment of the Applicant’s credibility, the Board made the following findings in the Decision:

“Credibility of the Claimant

43.  The core of the Claimant’s case is based on assertions of fact by the Claimant, some of which are inherently impossible, and which are based on hearsay and second-hand hearsay, that his general credibility is seriously undermined.

44.  Much of the Claimant’s evidence relating to events which he claims are within his own knowledge upon even cursory questioning turns out to be second-hand hearsay based on what the Claimant says his grandmother heard from other people.

45.  During the interviews, the Claimant was unable to adequately explain, or clarify, the many contradictions and extraordinary inconsistencies in his evidence. The Claimant’s evidence which relates to the core of his case is inherently improbable and lacks credibility to such an extent that it defies common sense.

46.  On the totality of the evidence, I am not persuaded, on the balance of probability, that the Claimant is giving a truthful, or reliable, account of past events in which he says he was personally involved, or which he claims to have witnessed.

47.  The general credibility of the Claimant has been undermined to the extent that I am unable to attach any weight to the Claimant’s assertions of fact which relate to his claimed past experiences in Sri Lanka, and upon which the core of the Claimant’s application for non-refoulement protection is based.

48.  The fact that the Claimant was able to have his passport renewed before his departure from Sri Lanka indicates that the Government of Sri Lanka did not have any adverse interest in the Claimant.

49.  I am satisfied that the Claimant has invented the whole of the factual basis of his claim in the hope of advancing his claim and I am unable to attach any weight to the Claimant’s evidence.”

15.Based on such findings as to the general credibility of the Applicant, the Board proceeded to reject his claim of past events in Sri Lanka or of any real risk of him suffering any ill-treatment of any sort if refouled to Sri Lanka for the following reasons:

“50.  Based on my findings in relation to the general credibility of the Claimant, I am not persuaded, on the balance of probability, that the classmates of the Claimant had joined the LTTE at any stage and I am not persuaded that the Claimant was abducted, as he claims, by the 3 unknown men who the Claimant says were members of the LTTE, or at all.

51.  Neither am I persuaded that the Claimant’s uncles J and uncle C were members of the LTTE as the Claimant asserts, or that they were, in any way, associated with the Karuna faction of the LTTE.

52.  A great deal of the Claimant’s evidence amounts to nothing more that speculation which is, in turn, based on hearsay and second-hand, or even third-hand, hearsay.

53.  While hearsay is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced. Hearsay evidence cannot prove the truth of facts assertesd by way of such evidence. Speculation can rarely advance any element of the Claimant’s case.

54.  In the circumstances, I attach no weight to the Claimant’s evidence which is based on hearsay when it is not supported by any other credible evidence. I attach no weight to the Claimant’s assertions which are based solely on speculation.

55.  The political situation in Sri Lanka has changed considerably since the Claimant left the country. The LTTE have been defeated and are no longer active in Sri Lanka.

56.  On the totality of the evidence, I am not persuaded, even in the low standard applicable, that there is a real risk, or a real chance, that the Claimant would suffer ill-treatment of any sort at the hands of the Government of Sri Lanka, or any other state authority, if he is refouled to Sri Lanka.”      

16.Of those findings by the Board, the Applicant complains that it had erred in law in assessing his credibility without any proper analysis or explanation as to which parts of his case or which assertions of fact made by him were inherently implausible, or which part of his evidence were based on hearsay or second-hand hearsay and why were they not acceptable, or what was it in his interviews that he was unable to explain or clarify of what contradictions or inconsistencies in his evidence, or what past events that the Board was not persuaded that the Applicant had given a truthful or reliable account.

17.Mr Ngan also submits for the Applicant that the Board’s rejection of the Applicant’s hearsay evidence in its entirety without considering the substance of such evidence is a wrong approach to dealing with hearsay evidence and is also inconsistent with the legal principles and in the context of non-refoulement claims.

18.The principles and methods for establishing and assessing a claim are well established. While the burden of proof lies on an applicant to establish his claim, it is for the adjudicator charged with determining his status to assess the validity of the evidence and the credibility of the applicant, as set out in UNHCR’s Handbook and Guidelines on Procedures and Criteria For Determining Refugee Status, reissued in December 2011 (“UNHCR Handbook”) as follows:

“B. ESTABLISHING THE FACTS

(1)  Principles and methods

195.  The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.

196.  It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be an exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at this disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit.

197.  The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198.  A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speal freely and give a full and accurate account of his case.

199.  While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201.  very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” …

202.  Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an “undeserving case”.

(2)  Benefit of the doubt

203.  After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204.  the benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”  

19.It is also critical to recall that the two-tier screening process under USM of a non-refoulement claim is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or strive with zeal to identify indicators of a lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and decision taken objectively and impartiality, as emphasized by the UNHCR Report Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013 (“UNHCR Report”) at p 37 as to the importance of Article 8 (2) (a) of the Asylum Procedures Directive (“APD”) as follows:

    “Article 8 (2) (a) APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectively and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background, or circumstances.”

20.The UKHCR Report also noted that the challenges of the credibility assessment in the asylum procedure on decision-making are compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for international protection is examined, the amount of time that has elapsed between these facts and screening of the case, as well as the psychology of the applicant and the interactions between him and the decision-maker are all relevant to the credibility assessment, as it stated at p 31:

    “The psychology of the applicant, the interviewer and, if different, the decision-maker, as well as the interactions between these persons are all relevant to the credibility assessment. A wide-range of factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions about behavior, values, attitudes, perceptions of and responses to risk, and about how a truthful account should be presented. Hen providing statements, applicants are also required to recall relevant past and present facts to substantiate their applications. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

    …

    The evidential challenge inherent in the process of fact-finding are even more acute and formidable in the examination of applications for international protection. There may be no third party evidence from, for example, witnesses, family, acquaintances, and members of the applicant’s community, or there may be doubts about the reliability of the existing evidence.”    

21.In the Applicant’s case, as noted above the Board found his general credibility had been seriously undermined in that the core of his claim is based on assertions of fact which are inherently implausible or based on hearsay or second-hand hearsay, but it is not clear in the Decision which of his assertions that the Adjudicator found to be inherently implausible, or which is hearsay or second-hearsay, or what contradictions or inconsistencies in his evidence that the Applicant was unable to explain or clarify during his interviews.  

22.To take an example, of the Applicant’s alleged abduction by armed men, their subsequent interrogation of him for information about his classmates’ involvement with the Karuna group, and his eventual escape back to Chilaw, I am unable to see from the Decision what is it that the Board found to be inherently implausible, nor can I as regard its disbelief that the Applicant’s classmates or his two uncles had ever joined the LTTE or were associated with the Karuna faction of LTTE. The Board simply did not explain any evidential basis for his such findings against the credibility of the Applicant.       

23.As pointed out in the UNHCR Report, multi-lingual and cross-cultural communication in asylum procedure increases scope for misunderstandings and errors, and though interpreters may help to overcome the linguistic barriers, decision-makers’ lack of familiarity with the cultural backgrounds of applicants as well as social mores gender norms of their societies or origin may still pose a challenge to assessment of credibility, as Lord Justice Keene of the UK Court of Appeal has stressed in the case of Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at §25:

    “An English judge may have, or think that he has, s shrewd idea of how a Lloyds Broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.”

24.Furthermore, given the considerable difficulties applicants normally face in gathering evidence to support their claims, the principle of the benefit of the doubt should often be applied in appropriate cases, as stated by the UNHCR Handbook above which recognizes that notwithstanding the efforts of an applicant, and indeed also of the determining authority, to gather evidence pertaining to the material facts asserted by the applicant, there may still be some doubt regarding some of the facts, in which case the need for the principle is reinforced by recognition of the fact that an applicant’s life and/or integrity may be put at grave risk if non-refoulement protection is wrongfully declined, as it was emphasized by the European Court of Human Rights in R.C. v Sweden, no. 41827/07 (Judgment), ECtHR, 9 March 2020 at para. 50:

    “The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof.”

25.The application of the principle of the benefit of the doubt therefore allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012 at para. 4.3.4:

    “[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision maker must come to a clear finding as to whether the fact can be accepted or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

26.As pointed out by the UNHCR Report, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators, as appropriate in light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt, as the UNHCR Report went on to state at p 50:

    “If, following such assessment, there is nevertheless an element of doubt in the mind of the decision-maker as regards the credibility of some asserted relevant facts, and there is no other evidence to support that fact, the decision-maker should consider whether it is appropriate, in all the circumstances, to apply the principle of the benefit of the doubt. The application of the principle of the benefit of the doubt, as explained in the UNHCR Handbook, allows the decision-maker to accept an asserted material fact as credible even though there may be no evidence other than the applicant’s statements to support the fact, and thereby, reach a clear and unambiguous conclusion regarding the asserted facts of the application.”

27.On the bases of these well-established principles and guidance for proper credibility assessment, and in view of the Board’s findings as regard the credibility of the Applicant’s claim as noted above, it seems reasonably arguable that the Board erred in law or misdirected itself in law in failing to apply those principles regarding the credibility assessment of the Applicant’s claim, which thus bring me onto Ground (1) of the Applicant.

Ground (1) – Illegality: Failure to provide adequate reasons for the decision

28.Following its adverse findings against the credibility of the Applicant’s claim as above, Mr Ngan argues for the Applicant that the Board failed to provide any or adequate reasons for the Decision in dismissing his appeal including the following matters;

(a)  Which part of his assertions was ‘inherently improbable’;

(b)  Why such assertions were ‘inherently improbable’;

(c)  What those ‘many contradictions and extraordinary inconsistencies’ were;

(d)  Why such inconsistencies were ‘extraordinary’;

(e)  Which part of the Applicant’s assertions relating to the core of his case lacked credibility to such an extent that it defied common sense;

(f)  Whether or not the Applicant had not been given a reasonable opportunity to explain or clarify the matters stated above;

(g)  If yes, why the Applicant’s explanations or clarifications were ‘inherently improbable’ or lacked credibility;

(h)  If not, why the Applicant had not been given any reasonable opportunity to explain or clarify; and

(i)  How the Applicant’s general credibility was ‘seriously undermined’.  

29.Mr Ngan submits that such failure on the part of the Adjudicator was pivotal to the validity of the Board’s Decision because:

(a)  The Adjudicator, based upon his criticism of the Applicant’s evidence but without given specifics, proceeded to reject his general credibility; and

(b)  Based upon his rejection of the Applicant’s general credibility, the Adjudicator proceeded to reject the Applicant’s other factual assertions in respect of which the Applicant had personal experience or knowledge.

30.Mr Ngan submits that absent any adequate reasons from the Adjudicator for his rejecting of the Applicant’s general credibility and the relevant assertions, the Applicant simply did not know why he was disbelieved and hence why his claim was rejected, which is a blatant violation of the principle of high standards of fairness.

31.Similarly, the Applicant complains that no adequate reasons had been given by the Adjudicator for his assessment of the present and future risk of harm to the Applicant in the Board’s Decision, in particularly as to one of the factual bases of his claim of fear of persecution or ill-treatment on the ground of his ethnicity as a Tamil, of which the Adjudicator only stated his conclusion on the country condition of Sri Lanka without going into any details or providing any reasons for such condition, and hence it is again not clear how the Board arrived at such conclusion, and what Country of Origin Information (“COI”) that it had considered or relied upon.

32.Firstly, there can be no question that the Board must give its decision with reasons in writing, as required by section 24(3) of Schedule 1A to the Ordinance, and which is reproduced in section 22.3 of The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”), 5^th edition, September 2016.

33.This is because the context within the decision is the exercise of the power to deport, which is one of momentous importance to the individual applicant concerned, and hence high standards of fairness are demanded in the making of such a determination, as it was held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at para 44:

    “ … The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”

34.As to what high standards of fairness require, the Court elaborated at paragraph 51:

    “In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary… (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

35.Secondly, the reasons must be adequate, as it was observed by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279, when Li CJ held that not only do the requirements of fairness demand that the tribunal should give reasons, but when there is a duty to do so, it must be discharged by giving adequate reasons at p 290J to 291D:

    “Where there is a duty to give reasons, it must be discharged by giving adequate reasons. What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.

    …

    We are concerned with the duty to give reasons by the tribunal which operates in the context of the statutory framework in the ordinance. In my view, the following general observations could be made as to the reasons that should be given by the tribunal.

    First, the reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision …”    

36.In AM v Director of Immigration [2014] 1 HKC 416, McWalters J (as he then was) also stressed the importance of adequacy of reasons to be given by the decision-maker, as he stated at para 107:

    “ … any set of reasons which purports to make findings relevant to a conclusion on a core part of a claimant’s claim, and here that was the issue of State acquiescence, would have to address comments of the kind found in these reports so that a claimant could understand why, notwithstanding the existence of such comments, his claim ultimately failed. Thus, the issue is not just one of Wednesbury unreasonable but also one of adequacy of reasons provided by the decision-maker.”

37.Furthermore, in assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered by the decision-maker, including the conditions in the country concerned: see Prabakar at para 52, and at para 55 the Court further elaborated:

    “ … an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-government organizations. The Secretary should obtain any such information and materials and take them into account.”

38.Following on this last point, while the Board did, as noted above, state in the Decision that the political situation in Sri Lanka had changed considerably since the Applicant left the country and that the LTTE had been defeated [55], as pointed out by the Applicant, it only stated its conclusion on country conditions and did not appear to have provided any reasons or adequate reasons for such conclusion.

39.It also appears that the Board had only taken into account those COI relied upon by the Director in his decision back in 2015 and provided in the hearing bundle before the Board in its assessment of the political situation of Sri Lanka, but arrived at its own conclusion in the Decision almost 4 years later in May 2019, when according to the Applicant there have been significant changes in the relevant political situation in Sri Lanka since 2015 as shown in those COI referred to in his skeleton submissions ([26] – [27]) which he describes as deteriorations in both the application of torture by the authorities and the treatments towards the Tamils in Sri Lanka, of which he complains that the Board had failed to take proper account of its own more current and relevant COI before arriving at his conclusion that the political situation there had indeed changed considerably for the better to the Applicant, whether regarding his ethnicity/religion as a Tamil or his real or perceived affiliation with the LTTE.        

40.Given the way that the Board rejected the Applicant’s claims of past events as well as his fear of future risk as noted above in the Decision, I agree with the submissions of Mr Ngan for the Applicant that it is reasonably arguable that the Board had failed to provide adequate reasons for its decision.

Ground (3) – Failure to consider adequately or at all the Applicant’s claim of risk of persecution or ill-treatment due to his ethnicity/religion as a Tamil

41.In the Decision, and before it started its discussion on credibility, the Board identified the core of the Applicant’s claim at [42]:

    “The Claimant says that, if he is refouled to Sri Lanka, he will suffer serious harm, even death, because the Government of Sri Lanka suspect that the Claimant is a member, or associate of the LTTE. According to the Claimant, all Tamils in Sri Lanka are suspected by the government of supporting the LTTE, which might, at any time, renew its attack against the state.”

42.The Board then proceeded to find, as noted above, on the totality of evidence that it was not persuaded that there is any real risk that the Applicant would suffer ill-treatment of any sort at the hands of the Sri Lankan government or any other state authority if refouled to his home country [56] as already noted.

43.It appears that the basis for the Board to arrive at such conclusion, apart from the issue of the Applicant’s credibility, is as noted above that the political situation in Sri Lanka has changed since the Applicant’s departure as LTTE have been defeated and are no longer active in Sri Lanka, and therefore the Board was of the view that there would be no further reason for the authorities to have any adverse interest in the Applicant upon his return to Sri Lanka.

44.Apart from what seems to me too simplistic a view to hold of the policies of the Sri Lanka Government on former associates of LTTE or people previously suspected of such involvement or connections in the past without taking into account of or at least referring to the relevant COI in support of such view, it is clear that the Board had not, as complained by the Applicant, considered his future risk due to his ethnicity/religion as a Tamil, of which he did raise during his first-tier screening before the Director and submitted those documents listed and discussed in the Director’s decision in paragraph 7 in support of his claim of fear of persecution and ill-treatment by the majority Sinhalese population of Sri Lanka against the Tamils and other minorities due to their different ethnicity and religious faith, and which the Applicant believes to have been approved or even instigated by the Sri Lanka Government.     

45.As such it also seems to me reasonably arguable that the Board failed to consider adequately or at all the Applicant’s claim of fear of risk of persecution or ill-treatment on the ground of his ethnicity/religion as a Tamil if he returned to Sri Lanka.        

Decision        

46.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I grant leave for the Applicant to do so on the basis of his proposed grounds as stated above.

47.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of this decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs be in the cause and his own costs to be taxed on Legal Aid Regulations.

Dated the 3^rd day of August 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