V v. Torture Claims Appeal Board

HCAL 113/2017

[2022] HKCFI 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 113 of 2017

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 March 2020 granted;

2.  leave to apply for Judicial Review of both the decisions of Torture Claims Appeal Board dated 22 December 2016 and 27 March 2020 respectively granted;

3.  costs be in the cause; and

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

Observations for the Applicant:

Introduction

1.The Applicant is a 44-year-old national of Sri Lanka who last arrived in Hong Kong on 30 May 2005 as a visitor with permission to remain up to 29 June 2005 when he did not depart and instead overstayed, and on 16 November 2006 he surrendered to the Immigration Department and 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 police, military and authorities for being perceived or suspected to be a member of or being involved in the activities of the terrorist group Liberation Tigers of Tamil Eelam (“LTTE”)  and/or persecution by the government as a Tamil and/or by LTTE and their related Karuna Group for refusing to pay them extortion money. He was subsequently released on recognizance pending the determination of his claim.

Background and Non-Redoulement Claim

2.The Applicant was born as a Tamil and raised in Village Munneithivu, District Batticaloa, which was in the northeastern part of Sri Lanka and a stronghold of LTTE then fighting for an independent state of Tamil Eelam in the north, and to monitor their activities, the Sri Lanka authorities set up an Army camp in the surroundings of the Applicant’s home village.

3.One day in October 1992 the LTTE launched a bomb attack against the Army camp, and as a result the Army set up many check-points in the Applicant’s home village. A few days later while he was passing through one of the check-points, the Applicant was detained by the soldiers for being suspected to be a LTTE member and was taken to the Army camp during which he was stripped naked and tortured by beating with wooden sticks all over his body including the soles of his feet, and was for days deprived of food and water.

4.Two days later 2 officers from the Criminal Investigation Department (“CID”)  arrived to interrogate him about his involvement in the previous bomb attack by LTTE of the Army camp, and when he denied to have anything to do with the bombing or with the LTTE, the officers for days punched and kicked him all over his body, and the beating only stopped after the International Committee of the Red Cross (“ICRC”)  had come to visit him, and after more than 10 days and after his mother had paid a bribe to the police that he was eventually released.

5.Upon returning home the Applicant sought medical treatments for his injuries in particularly to his badly wounded soles that it took him almost one year to be able to walk without pain before he was eventually able to return to work in 1993 in a goldsmith shop in Negembo.

6.One day in 1996 a bomb exploded in Colombo, and after the arrested Tamil driver of the lorry which carried the bomb disclosed the Applicant’s name to the police, the Applicant was arrested by CID officers for interrogation for suspicion of being involved in the bombing incident including using the lorry for the transport of the bomb, during which he was tortured with daily beatings, which only subsided after the Red Cross had sent delegates to visit him and after having gone on a hunger strike together with other detainees for 5 days.

7.Eventually the Applicant was transferred to the Kirulapona Police Station where he was detained for another 2 months before being sent back to Colombo for further interrogation by the CID office during which the beatings resumed.

8.Two months later he was taken to Kalutura Prison where he again participated in hunger strikes with other detainees, and 3 months later he was transferred to the Bindunuwewa Youth Rehabilitation and Training Centre where he was assigned to work in the kitchen.

9.Eventually in August 1997 he was released from the Centre and was allowed to return to his home village where he spent one year in recuperation before resuming his job as a goldsmith in Colombo.

10.With the money earned as a goldsmith, the Applicant later purchased a coach with which he hired a driver to carry passengers and goods between Batticoloa and Colombo for additional income, but one day in 2003 while it was on its way from Colombo to Batticoloa, the coach was confiscated by a group of LTTE members for their use in their activities against the government, and it was only 4 months later when the Applicant was able to recover the coach which he later sold to avoid any suspicion of being involved with the LTTE.

11.One day in late 2004 the Applicant was abducted by some unknown men whom he suspected were members of the Karuna group which had split from the LTTE, and was brought to a deserted place where he was demanded to pay them money, and when he was unable to do so, he was kept for 5 days before being released. Thereafter the Karuna people would continue to come to his workplace to demand for money with threats to kill him if he failed to pay them.                           

12.Fearing such persistent threats from the LTTE and Karuna groups as well as the CID and the Sri Lankan authorities, the Applicant decided that it was no longer safe to remain in Sri Lanka, and so on 30 May 2005 he departed for Hong Kong where he subsequently overstayed, during which he applied to the UNHCR for a refugee status, and after it was refused, he then surrendered to the Immigration Department and raised a torture claim later taken as a non-refoulement claim, for which he completed a Torture Claim Form (“TCF”)  on 23 January 2014 and a Supplementary Claim Form (“SCF”)  on 28 November 2014, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

13.While released on recognizance pending the determination of his claim, the Applicant in 2006 received a telephone call from his brother VN that he had earlier been detained and tortured by the Sri Lankan Army also for suspicious of being involved with the LTTE, and upon his subsequent release VN also fled to Hong Kong to apply for a refugee status from UNHCR, and in 2012 his application was successful, and as a result VN was allowed to settle in New York.

Director’s First Decision                   

14.Meanwhile, by a Notice of Decision dated 5 March 2015 the Director of Immigration (“Director”)  rejected the Applicant’s claim on all then applicable grounds 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”).

15.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the LTTE and Karuna people upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that the civil war in Sri Lanka ended with the defeat of LTTE in 2009 that there is no indication that LTTE is still having any significant influence in the country, that the behavior of the LTTE and Karuna people show no real intention to seriously harm or kill the Applicant before he left the country, nor had he encountered any further action from the Sri Lankan police or authorities since he was last released in 2005, that in any event state or police protection from any harm from the LTTE or Karuna people upon his return to Sri Lanka would be available to him if resorted to, and that reliable and objective Country of Origin Information (“COI”)  show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 21 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from his home district in large cities such as Colombo where it would be difficult if not impossible for those LTTE or Karuna people to locate him (“Director’s First Decision”).

16.On 17 March 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”)  against the Director’s decision, and for which he attended an oral hearing on 15 October 2015 with his lawyer from DLS before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicators for the Board and with submissions made on his behalf by his lawyer. On 22 December 2016 his appeal was dismissed by the Board which also confirmed the decision of the Director.

Board’s First Decision

17.In its decision the Board identified the Applicant’s sources of fear of risk of being harmed or killed by the LTTE and Karuna people and of ethnic discrimination for being a Tamil, but found in the light of the relevant COI that it was not accepted by then in 2016 that there would still be such risk of harm to the Applicant upon his return to Sri Lanka whether from LTTE or the Karuna group when both are now defunct after the defeat of LTTE in May 2009 which ended the civil war, and hence there was no more basis to fear the CID or the Army to torture him arising from any suspicion of him being involved with LTTE, while the fact that he is an ethnic Tamil that discrimination per se is not a basis for non-refoulement, and that in any event the relevant COI show that his alleged fear had no factual basis to support it, and concluded that his claim for non-refoulement protection failed on the applicable grounds (“Board’s First Decision”).   

18.On 22 March 2017 the Applicant through his present solicitors on Legal Aid applied for an order that his identity not be disclosed in his proposed application for leave to apply for judicial review of the Board’s decision, and upon being granted the anonymity order, he then formally filed his Form 86 for his intended challenge on 3 April 2017.       

19.Meanwhile on 15 March 2017 the Director on his own initiative in writing invited the Applicant to submit any 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”), whereupon the Applicant made further submissions of inter alia fear of risk of arbitrary deprivation of his life under BOR 2 Risk by the Sri Lankan Army and police due to the facts that he is a male Tamil from the northeastern part of Sri Lanka and a suspected/perceived supporter or member of LTTE, that he had previously been arrested detained and tortured by the Sri Lankan Army and police, and his link to other members of his family including his brother VN who had also been arrested and detained by the Sri Lankan authorities for suspicious of being involved with LTTE, and of his subsequent departure from Sri Lanka to seek asylum and non-refoulement protection that he would be regarded or perceived by the Sri Lankan authorities as being involved in post-conflict Tamil separation in the diaspora and/or renewal of activities in Sri Lanka and would be immediately arrested if refouled to his home country.

Director’s Further Decision      

20.By a Notice of Further Decision dated 28 April 2017 the Director rejected the Applicant’s BOR 2 Claim on the basis of relevant COI showing that Sri Lankan government have carried out reforms on its police and security agencies and to provide a fair and proper judicial process to its citizens including the Applicant, and that state and police protection would be available to the Applicant from any perceived risk of harm from the LTTE or Karuna Group upon his return to Sri Lanka that it was concluded that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2 being violated upon his return to Sri Lanka, and that in any event the facts of his case did not engage the BOR 2 ground (“Director’s Further Decision”).

21.On 12 May 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and as a result Deputy High Court Judge Woodcock on 21 December 2017 adjourned his leave application for judicial review of the Board’s First Decision pending the outcome of this second appeal of the Applicant, for which the Applicant attended another oral hearing on 5 June 2019 with his lawyer before the Board during which he gave further evidence and answered questions raised of his claim by the same Adjudicator for the Board, and with submissions made on his behalf by his lawyer.

Board’s Second Decision

22.By a decision dated 27 March 2020 the Board dismissed the Applicant’s appeal regarding his BOR 2 Claim upon finding that his thesis of risk under BOR 2 based on arrest on repatriation to Sri Lanka was just speculation, that such arrest would lead to imprisonment was also speculation, and that his fear of dying in prison due to diabetes and psychological situation were further speculation made unlikely from the Applicant’s testimony at the appeal hearing, which was further eroded by his medical report that his mood was stable and that he was not suffering from psychosis or any idea of committing suicide (“Board’s Second Decision”).   

Application for Judicial Review of Board’s Decisions   

23.On 3 March 2022 the Applicant was allowed by this Court to re-amend his Form 86 to include an application for leave to apply for judicial review of the Board’s Second Decision regarding his BOR 2 Claim, and hence with additional grounds for his intended challenge, which together with those listed against the Board’s First Decision are summarized and set out as follows, with the first 6 grounds concerning the First Decision, and the last 2 concerning the Second Decision:

(1)  Misdirection as to the Applicant’s source of fear;

(2)  Failure to make findings of facts;

(3)  Procedural unfairness in failing to order a medical examination of the Applicant;

(4)  Error of law in its decision-making;

(5)  Failure to take into account relevant evidence and/or cherry-picking of COI materials;

(6)  Procedural unfairness in relying on certain COI materials without giving the Applicant an opportunity to respond;

(7)  Misdirection as to the Applicant’s source of fear in its decision regarding BOR 2 Risk; and

(8)  Failure to take into account and/or cherry-picking of COI materials regarding the Applicant’s BOR 2 Risk.  

24.Given the prevailing Covid-19 pandemic situation at the relevant time, the Applicant through his lawyer agreed that his leave application be dealt with by the Court on paper, and for which his counsel Ms Allison Wong has filed two skeleton submissions on his behalf.

Application for Extension of Time regarding Board’s Second Decision

25.Before proceeding to consider those grounds in details, I should mention that for his intended challenge of the Board’s Second Decision regarding his BOR 2 Claim, the Applicant was late with his application and has applied for extension of time, as Order 53 Rule 4(1)  of RHC requires that such applications be filed promptly or within 3 months when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application should be made.

26.In considering whether there is good reason to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

27.In the Applicant’s case, as can be seen from above that the delay for his intended challenge of the Board’s Second Decision regarding his BOR 2 Claim was very substantial in excess of one year, but given the facts that it was obviously within the ongoing process of his earlier application against the Board’s First Decision and that he subsequently had had to apply for extension of his legal aid for his intended challenge of the Board’s Second Decision,  I propose to focus on the merits of his intended application by reference to his proposed grounds as stated above, of which I shall for obvious reasons consider Grounds (1), (2)  and (7)  together.

Grounds (1), (2)  & (7): Misdirection and/or failure to make findings of facts

28.Under these grounds the Applicant argues that the Board erred in failing to properly identify his fear of ill-treatment by the Sri Lankan authorities and its proxies in respect of which protection could be granted in either of its First or Second Decision, and/or to properly deal with such fear as set out in his Grounds of Appeal/Petition and his submissions in both of his appeals before the Board, and/or to make proper findings of facts in relation thereof in its decisions.  

29.Ms Wong for the Applicant submits that such misdirection is fundamental as it tainted the Board’s assessment of the Applicant’s claim in all areas, as in its First Decision it led to a failure to correctly assess the Applicant’s risk profile, his risk for future harm, and the relevance and availability of state protection and/or internal relocation, while in its Second Decision it led to erroneous assessment as to the Applicant’s BOR 2 risks, the relevance of extended state acquiescence, as when the persecutor or source of fear involves state agents or their proxies, the question of state acquiescence and/or state protection should not even be engaged, and that the proper approach would be to consider the state’s intentions. As such Ms Wong submits that the fundamental misdirection would be sufficient to render both decisions of eth board unlawful.

30.In addition, Ms Wong submits that in either decisions the Board merely repeated the Applicant’s evidence of ill-treatment without making any findings of fact, and while it did mention the Applicant’s psychological report, it failed to address the issues of credibility, nor did it find any crucial facts in issue or to assess the credibility of witnesses either, or even indicate what evidence was accepted and what was not, contrary to the requirement to give adequate reasons as held in AM v Director of Immigration [2014] 1 HKC 416.

31.In its First Decision, the Board identified the basis of the Applicant’s claim in paragraph 2 as follows:

“The Appellant says he has 2 sources of fear: (1)  he fears being harmed or killed by the Liberation Tigers of Tamil Eelam (“LTTE”)  and the Karuna Group because he had refused to give them money, and (2)  he fears ethnic discrimination because he is a Tamil.”

32.The Board then proceeded to set out in paragraph 3 the Applicant’s evidence as to his account of events occurred in Sri Lanka prior to his departure of the country in 2005, and found on the basis of the relevant COI that there was no longer any such risk of harm to the Applicant on his return to Sri Lanka, as it stated as follows:

“13. In light of the COI, we do not accept that in now 2016 there is any more risk of harm to the Appellant on his return to Sri Lanka whether from the LTTE or from the Karuna Group and consequently, no risk of harm from the CID or the Army.

14. As to the Appellant’s alleged 2^nd source of fear, viz the fact that he is an ethnic Tamil, discrimination per se is not a basis for non-refoulement. Further and in any event, the COI above (especially the latter half of the articles)  shows the alleged fear has no factual basis to support same.

15. We find there are places in Sri Lanka where the Appellant can safely reside and work without any significant risk of harm, nor as a 38-year-old and able-bodied man he will experience any undue hardship. And this is another reason for the appeal to fail, independent of what was stated in paragraphs 7 to 11 above.”  

33.It is on these bases that the Board concluded that the Applicant’s claim failed on all the then applicable grounds of Torture Risk, BOR 3 Risk and Persecution Risk.  

34.In its Second Decision regarding the Applicant’s BOR 2 Risk, the Board relied on the same bases of facts of his case as stated in its First Decision which it added should be read together ([2] and [5.1] of Second Decision).

35.It seems therefore by identifying the Applicant’s only sources of fear of harm from LTTE/Karuna Group and ethnic discrimination as a Tamil, the Board failed to consider his claimed fear of harm from the Sri Lankan authorities including the police, CID and the Army, of which the Applicant did specifically refer to throughout the process of his claim, starting first in his TCF dated 23 January 2014 when he answered the following questions raised therein (BD2/15/235):

“Q33: When and why did you leave the torture risk State?

A33: Please refer to the additional sheets.

Q34: What do you fear may happen to you if you return to the torture risk State?

A34: I fear that I would be tortured and killed by the Sri Lankan police and army, details please refer to Ans. 33.”

36.In his additional sheets in answer to Question 33, the Applicant stated his fear of torture by the Sri Lankan police as follows (BD2/15/253-260):

“1. I make a torture claim since I was and am in fear that I would be tortured and killed by the police on my return to the original country due to my problem there. I am not confident that the government would render assistance to me on my return to Sri Lanka as racial discrimination against Tamil, by the government and the majority of the citizens, is widespread all over the nation…”

37.The Applicant then went on to give details of such claims under the subtitles of “Threat 1: Being suspected to be the culprits of an attack and was tortured by the police”, “Threat 2: Being suspected to be involved in a bomb blast and was detained and tortured”; and “Threat 3: Harassment and death threat from LTTE-related group”, of which the Board summarized in a single paragraph 3 in its First Decision, and upon which the Applicant explained why he decided to leave the country:

“40. Under fear of the potential harassment of the Karuna Group, coupled with the previous experience of torture by the police who bore grudges against Tamil, I felt my life at risk if I continued to stay in Sri Lanka. After discussion with my family members regarding the situation, I was advised to leave the country.”

38.The Applicant concluded in his Answer 33 of his fear to return to his home country for the following reasons (B2/15/263):

“50. Given the unfair and undesirable conditions for Tamils in Sri Lanka and in light of the previous torture against me by the police for suspecting me for causing attacks, I strongly feel that I was not welcome by the Sri Lankan authority who would initiate torture against me upon my return to Sri Lanka. In this connection, I cannot return my country of origin where no state protection is available to me.”

39.In his subsequent SCF dated 28 November 2014 which he submitted at the request of the Immigration Department, the Applicant in his answer to Question 35: When and why did you leave the Risk State, again stated his fear of harm from the Sri Lankan authorities as his reason for fleeing the country, as he stated as follows (BD2/17/303, 315):

“Please refer to Torture Claim Form …

Since the submission of Torture Claim Form to Immigration department in this January 2014, I scarcely contacted my family members as my parents have passed away and I did not want to trouble my siblings. Although I did not receive much updates regarding the situation in Sri Lanka, I still firmly believe that I would be arrested and detained by the authority given their discrimination against Tamils and their suspicion of me to be an LTTE group member.

                 Because of the previous torture befallen on me, I have been leading a miserable life as the torture has caused me adverse physical and mental effect. At this moment, I maintain contact with my brother who is now in America. My brother advised me not to return to Sri Lanka and to continue with my Non-refoulement Claim …”        

40.In his subsequent appeal to the Board against the Director’s decision, the Applicant again stated his fear of harm from the Sri Lankan Government, both before and after his departure of the country, in his Notice of Appeal/Petition dated 17 March 2015 as follows as well as citing more than 20 COI in support (B2/19/335 - 338):

“RISK OF HARM (TORTURE, CITDP, PERSECUTION)

…

7. The Claimant faces a real and personal risk of harm on one (1)  or more applicable grounds due to the following factors:-

a)  Perceived/imputed political opinion against the Government of Sri Lanka (“GOSL”);

b)  perceived membership in/support for and/or cadre of LTTE;

c)  family links to persons who are perceived/imputed involvement in LTTE;

d)  as a victim of human rights violations and/or as a family member of victims seeking justice …

8. The Appellant faces a real and personal risk of harm on one (1)  or more applicable grounds, including torture, CIDTP and/or persecution due to his membership in a particular social group, race and/or imputed or perceived political opinion, due to the following factors:-

a)  male Tamil from North/East Sri Lanka

b)  Tamil ethnicity;

c)  suspected LTTE supporter and/or member and/or cadre of LTTE;

d)  fail to comply with bail conditions/reporting requirements and/or absconding

e)  presence of scarring (or other marks/indicia of torture); and/or

f)  having made an asylum claim abroad

g)  having relatives/family members in or suspected to be involved in the LTTE

…

10. The Appellant further faces a real and personal risk of harm within categories (a)  as a person perceived to be a threat to the integrity of Sri Lanka due to, inter alia, his perceived involvement in post-conflict Tamil separatism due to his extended stay abroad/outside Sri Lanka and/or due to his or his family’s real or imputed involvement with LTTE; and/or due to his family’s complaints to the International Committee of the Red Cross (“ICRC”).

…

14.  Subsequent to the election of the new President, Maithripala Siriscna on 8 January 2015 and the positive changes espoused by the new President, there continue to be serious concerns as to, inter alia, the military’s presence and role in the North, the Government’s continued ban on a large number of Tamil diaspora groups, arrest and detention of Tamils in Sri Lanka, surveillance and monitoring of Tamils in the North and East and of Tamils returning from abroad, widespread powers of detention under the PTA as well as ethnic and religious violence and discrimination…”  

41.Perhaps most significantly of all, and which would by then have been abundantly clear to the Board, when the Applicant specifically put forward the same complaint against the Director as his main ground of appeal in which he stated as follows (BD2/19/344 – 347):

“FAILURE TO IDENTITY THE PRINCIPAL AGENT OF HARM/PERSECUTION & FAILURE TO INVESTIGATE RISKS ASSOCIATE WITH PERCEIVED/IMPUTED LINKS TO LTTE

15. The Director failed to identify the agents of harm, including persecution and/or serious ill-treatment (such as torture and CIDTP)  as set out by the Appellant. Despite the Appellant’s indication that he feared harm from the Sri Lankan police and Army (see Answers 34, 39 & 41 of TCF and Additional sheets to Answer 33 attached to TCF), the Director mischaracterized the basis of the Appellant’s claim as follows at para. 5 of the Director’s decision …

16. The Director’s analysis of the Appellant’s non-refoulement claim is permeated by the mischaracterization of the perpetrators of harm and/or persecution. This is despite the detailed background provided by the Appellant in regard to his previous arrests, detention and torture by Sri Lankan security forces, including police and Criminal Investigation Department (“CID”)  and the Army. In failing to turn his mind to the risk of harm arising from eth principal agent of harm/persecution, i.e. the State, the Director improperly concluded that state protection would be available to the Appellant and that internal relocation would be a feasible option for the Appellant (see § 17-21 and §22 of the Director’s decision).

17. The Director was required to consider any ground of persecution or harm presented on the evidence regardless of whether it was specifically identified by the Appellant. Insofar as the Appellant included in the TCF his fear of harm from the Sri Lankan authorities as well as past torture, persecution and ill-treatment by the Sri Lankan authorities on his suspected involvement with the LTTE and/or involvement in bombing attacks against the SLA and/or Government, the Director failed in his duty to consider risk of harm to the Appellant by the State should he be returned to Sri Lanka.”    

42.The Applicant further stated in his Notice of Appeal that in failing to properly identify the Sri Lankan authorities as the principle agent of harm and persecution in his case, the Director also misdirected himself and erroneously found that both state protection and internal relocation were available to the Applicant upon his return to Sri Lanka so as to negate his claimed risks of harm and torture (BD2/19/348 – 362):

“24. The Director improperly and without basis concludes that the torture and ill-treatment suffered by the Appellant by the CID and SLA cannot be attributed to the Government of Sri Lanka. In doing so the Director without basis discounts COI available to him (and some of which he refers to)  indicative of the widespread use of arbitrary arrests and detention by SLA and police against Tamils, as well as systemic use of torture and CIDTP by GOSL (including the SLA)  in order to extract confessions and obtain information from suspected LTTE supporters and members.

25. The flawed approach of the Director in failing to impute repeated and serious harm caused by State actors (SLA and/or CID/Police)  to the GOSL further improperly props up the Director’s finding that state protection will be available to the Appellant on his return to Sri Lanka. The Director ignored evidence related to and failed to investigate the risk of harm arising from the State itself and the consequent lack of state protection available.

26. Up to date COI indicates a continued risk of serious harm to persons of interest to the Government of Sri Lanka, including Tamils with imputed links to LTTE and/or their family members (see also paragraphs 7-14, 28. 42). The Appellant’s risk profile is further heightened by his brother’s (Veerakuddy Nagulesan)  previous arrest and detention by the Sri Lankan authorities on suspicion of terrorist activities or crime in 2006 and contacts with the LTTE. The Appellant intends to submit further evidence in regard to the matters referred to herein.

27. The Director erred in failing to consider relevant COI in considering whether state protection would be available to the Appellant …

…

39. As the agent of the feared harm of torture, CIDTP and/or persecution upon return is the State, there is no state protection available to the Appellant nor is internal relocation a viable option. As noted above, the country of origin information indicates the widespread and routine use of torture and serious ill-treatment by police and Sri Lankan authorities against detainees and persons in custody.

40. Furthermore, the Director failed to clearly raise the issue of internal relocation to the Appellant and/or his legal representative, including identifying specific places that would provide an internal relocation option and/or materials the Director was relying on in relation to this issue. The Director’s vague and general comment during the only screening interview conducted as to the general population and geographic size of Sri Lanka does not constitute sufficient notice of the issue and the specificity required as to actual internal relocation destinations required in accordance with the high standards of fairness. [see screening interview dated 28 January 2015 at Q54, A54)

41. In assessing internal relocation, the Director erred in suggesting that internal relocation to “all other places in Sri Lanka, except your home village Galagedara, such as Colombo”, would be feasible. [see §22(b)  of the Director’s decision] …”

43.These complaints of the Applicant were then set out and elaborated in his Closing Submissions dated 5 November 2015 to the Board, in particularly as to his risk profile on an individual and cumulative basis of his claimed fear of harm from the Sri Lankan authorities (BD3/25/470–474, 480–488), and in support of his appeal his lawyer also submitted an additional list of relevant COI which he claimed to show continued oppressive presence and actions of the Sri Lankan government and military in the Northern and Eastern parts of the country, with arbitrary arrests and detentions of Tamils in Sri Lanka, serious mistreatments and harm to detainees, disproportionate surveillance and monitoring of Tamils in the North and East Sri Lanka as well as those returning from abroad, and with widespread powers of detention under the Prevention of Terrorism Act (“PTA”), as well as generally ethnic violence and discrimination against Tamils in the country (BD3/26/489 – 829).       

44.As noted above the Board in its decision identified only LTTE/Karuna Group and ethnic discrimination against Tamils as the 2 sources of fear of the Applicant, and it appears that no mention at all had been made of the Sri Lankan authorities as a source despite the abundance of clear representations made by the Applicant throughout the entire process of his non-refoulement claim before both the Director and the Board.               

45.While the Board did upon referring to what it considered as the relevant COI find that in 2016 there would not be any risk of harm to the Applicant on his return to Sri Lanka from LTTE or the Karuna Group, and “consequently no risk of harm from the CID or the Army”([13]), it seems also reasonably arguable that the Board failed to make any or sufficient findings for making the assessment of no further risk of harm from the Sri Lankan authorities.

46.Similarly for his BOR 2 Claim, the Applicant in his further submissions to the Director dated 12 April 2017 stated that his fear of harm under BOR 2 Risk was primarily also from the Sri Lankan authorities, as recorded in the Director’s Further Decision at [6(i)]:

“6. In your Present Submissions, you stated that:

(i) If you are forced to return to Sri Lanka, you face a genuine and substantial risk of serious harm arising from violation of “Art. 2 BOR and/or violation of other absolute and/or non-derogable rights (including persecution and/or torture and/or CIDTP)”, including:-

(a)  arbitrary deprivation of your life “contrary to Art.2(1)  BOR” due to:-

1)  as a male of Tamil ethnicity from an Eastern province of Sri Lanka;

2)  as a suspected/perceived LTTE supporter and/or member and/or combatant of LTTE;

3)  due to your previous arrests, detention and/or torture and/or serious ill-treatment by the Sri Lankan Army and Police;

4)  due to your family links to persons who were or are perceived/imputed to be involved in the LTTE (including your brother (VN)  who is or is likely to be on a computerized watch list or stop list);

5)  as a person perceived to be involved in post-conflict Tamil separation in the diaspora and/or renewal of activities in Sri Lanka;

6)  repeated attacks and/or threats on you from the Karuna Group;

7)  as a failed asylum seeker/non-refoulement claimant and/or due to your absence from Sri Lanka for over 10 years; and

8)  section 1a of the Country Reports on Human Rights Practices for 2016 – Sri Lanka issued by the United States Department of State on 3 march 2017 (“USSD 2016 Report”)  was quoted to support your claim;

(b)  arbitrary arrest and detention “contrary to Art. 5 of the BOR” …

(c)  deprivation of your right to a ‘fair and public hearing by a competent, independent and impartial tribunal’ contrary to Art. 10 of the BOR” …

(ii)  You are informed by your duty lawyer and verily believe that recent reports from United Nations bodies, indicate – among other things – continued arbitrary killings, use of torture by law enforcement and other state actors and impunity for same, arrest and detention of Tamils; militarization of and surveillance and harassment in the North and East of Sri Lanka (i.e. where you would be compelled to return to as you are from the Eastern Province); cruel, degrading and inhumane detention conditions and enforced disappearances…”

47.As noted above in its Second Decision, the Board again did not appear to have taken any of these into account or made any findings of any of them, and relied mainly on those COI about reforms undertaken by the Sri Lankan government and that there was no suggestion of discrimination against the Tamils by the Sri Lankan community, and rejected and dismissed the Applicant’s appeal regarding his claimed fear of harm under BOR 2 Risk based on his arrest on his repatriation to Sri Lanka as well as his imprisonment and death in prison as mere speculations.

48.In the premises, and for all the reasons given, I am of the view that these grounds are reasonably arguable for the Applicant’s intended challenge of both decisions of the Board.

Grounds (5)  & (8): Failure to take account of relevant COI and/or cherry-picking of COI materials

49.Following on my view as to the Applicant’s complaint over the Board’s failure to identify the Sri Lankan authorities as his main source of fear of future risk of harm arising from his particular risk profile and as a Tamil from the northeaster part of Sri Lanka, it would be relevant to go next to his complaints under Grounds (5)  and (8)  about the Board’s assessment of the COI upon which it arrived at its conclusion of no substantial ground of foreseeable risk to the Applicant because both LTTE and Karuna Group are now defunct, as it stated at [9] of its First Decision as follows:

“The crucial issue is whether there is a future risk of torture or CIDTP or persecution. Even if the Appellant’s “mental suffering” has been serious (which for the above stated reasons we do not accept it to be), for reasons seen below there is no future risk of harm from the LTTE or from the Karuna Group because both are now defunct. And as a necessary corollary, there is no more basis to fear the CID or the Army to torture him as a result of suspecting him to be involved with the LTTE.”

50.The Board then proceeded to set out a summary of its listed COI as the basis for its such conclusion, of which Ms Wong submits were either inaccurate or misleading if not entirely irrelevant, and more significantly that it also totally ignored those COI which contradicted its such findings, citing the following illustrative examples:

(a)   The Board’s description of item (i)  of the COI, Country Report on Human Rights Practices of Sri Lanka 2013 issued by the USSD, of which it spoke about the creation of the Ministry of Law and Order to enforce criminal laws and enhance public safety, but which Ms Wong submits as misleading when it failed to note the findings of the report of “Widespread impunity persisted, particularly for cases of torture, corruption, human rights abuses, and attacks on media by police, military, and pro-government paramilitary forces.” (BD7/57/1270);

(b)    The Board ignored the COI materials provided by the Applicant that threats of detention and torture by the authorities had continued since the defeat of LTTE in May 2009 including the article Tainted Peace: Torture in Sri Lanka since May 2009 by Freedom from Torture, August 2015 which provided updated information on incidents of torture in Sri Lanka from May 2009 to 2015, and observed inter alia that “the profile factor – other than ethnicity – that was reported by the vast majority of people to have led to detention and torture by state authorities due to their actual or perceived association with the LTTE (BD7/66/1388 – 1464).   

51.In determining whether there are substantial grounds for believing that a claimant would be in danger of being subjected to torture or ill-treatment if removed to the risk State, Section 37ZI (5)  of the Immigration Ordinance stipulates that all relevant considerations are to be taken into account as follows:

“In determining whether there are substantial grounds for the belief referred to in subsection (3), all relevant considerations are to be taken into account, including, where applicable, the following matters in relation to the conditions in the torture risk State –

(a)   whether there is a consistent pattern of gross, flagrant or mass violations of human rights in the torture risk State; and

(b)   whether there is any region within the torture risk State in which the claimant would not be in danger of being subjected to torture.” 

52.This duty or requirement is then set out in the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), September 2016 at [20], and in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR, 187 at 204, the Court of Final Appeal elaborated on this requirement as follows:

“52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1)   The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2)    Has the potential deportee been tortured in the past and how recently;

(3)   Is there medical or other independent evidence to support the claim of past torture?

(4)   Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5)   Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by the persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. For example, …

55. Thirdly, an understanding of country conditions at eth 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-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”    

53.As noted above, high standards of fairness would require the Board to take into account of all the relevant COI materials before it in its determination of the Applicant’s claim in accordance with the policy, which is plainly one of momentous importance to the Applicant given his claimed history of torture and detention by the Sri Lankan authorities and his particular risk profile of past suspicion of being associated with or involved in the LTTE, and of which the Board never made any adverse finding in its decision.   

54.While the Board did correctly observe from the relevant COI that the LTTE is a spent force after it was defeated in May 2009 which ended the Sri Lankan civil war, and the government of Sri Lanka has since made dramatic progress in terms of post-war reconstruction ([12(vi)] & [12(xvi)]), there were clearly also information before the Board that its government’s present security objective is to identify remaining and scattered Tamil activists to prevent the resurgence of the LTTE or any similar Tamil separatist groups or the rival of civil war within the country, as it was so held by the UK Upper Tribunal in the case of GJ & Ors v Secretary of State for the Home Secretary [2013] UKUT 319, 5 July 2013, which was also produced by the Applicant to the Board, about the claims of post-civil war returnees to Sri Lanka, in which the Upper Tribunal considered the change in the GOSL’s approach towards its security, reframed its risk analysis for the political situation in Sri Lanka with categories of persons at real risk of harm or persecution from the authorities on return to Sri Lanka including individuals suspected or perceived to have been associated with or involved in past or post-conflict activities of the LTTE, and set new country guidance as follows:

“354. The LTTE is a spent force within Sri Lanka and considered unlikely to rise again from within the unitary Sri Lanka, which is tightly controlled by the Sri Lankan security forces. The perceived risk against which the GOSL works now concerns the possibility of LTTE resurgence and efforts to restart the internal armed conflict, from outside Sri Lanka, led by diaspora activists. The GOSL no longer relies principally on checkpoints and searches; its approach is intelligence-led and it has sophisticated, extensive intelligence as to those who are seeking to destabilise the unitary state, within the diaspora and in Sri Lanka itself.

…

355. Having considered and reviewed all the evidence, including the latest UNHCR guidance, we consider that the change in the GOSL’s approach is so significant that it is preferable to reframe the risk analysis for the present situation in Sri Lanka. We give the following country guidance.

(1)  This determination replaces all existing country guidance on Sri Lanka.

(2)  The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

(3)  The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilize the unitary Sri Lankan state enshrined in Amendment 6(1)  to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a)  the resurgence of the LTTE or any similar Tamil separatist organization and (b)  the revival of the civil war within Sri Lanka.

(4)  If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

(5)  Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.

(6)  There are no detention facilities at the airport. Only those whose names appear on a “stop” list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.

(7)  The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

(a)  Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

(b)  Journalists (whether in print or other media)  or human rights activists, who, in either case, have criticized the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

(c)  Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

(d)  A person whose name appears on a computerized “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at eth airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

(8)  The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.

(9)  The authorities maintain a computerized intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilize the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.

(10)  Consideration must always be given to whether, in the light of an individual’s activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2)  of the Qualification Directive). Regard should be had to the categories for exclusion set out in the “Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, published by UNHCR on 21 December 2012.”

55.In its assessment of the relevant COI, it does not appear that the Board had taken any of these COI which were available before it and/or relied on by the Applicant for his appeals before the Board, and that if it did consider them the Board did not appear to have made any findings or assessment of them, or to give any reasons for such findings or assessment in either of its First or Second Decision.         

56.As such, and for the reasons given, I am also of the view that these grounds of the Applicant are reasonably arguable for his intended challenge of both decisions of the Board. 

Grounds (3)  & (6): Procedural Unfairness in failing to order medical examination or to give the Applicant an opportunity to respond to certain COI 

57.Under Ground (3)  the Applicant complains that the Board refused his repeated request for a medical examination which was crucial to his claim, as his physical and mental sufferings were in dispute in the Director’s decision ([12]), and hence the Board should have directed medical examinations but did not, and therefore failed to take an “active role” in the “joint endevour” of establishing the claim, and that having accepted that the Applicant had a degree of Post-Traumatic Stress Disorder (“PTSD”), the Board made no further inquiries into the cause and extent thereof, thus failing to fulfil its duty to gather necessary information.

58.I note that the Applicant did produce to the Board for his appeal a psychological evaluation report dated 10 October 2015 from a clinical psychologist Dr Shroff as to his mental health and assessment of PTSD and correlation of medical findings with his claim of torture and/or ill-treatment in the past in Sri Lanka, of which the Board did not appear to have alluded to in any specific details in its decision, but it did accept that there was “a degree of PTSD” in the Applicant in its assessment of his claim under torture risk, and was of the view that it was not necessary to seek any further medical report as it would only “delay finalizing an already very old case” which would not justify incurring unnecessary manpower and expenses ([8]).

59.Given the age of the Applicant’s alleged injuries inflicted by the Sri Lankan authorities, and as the Board had taken all his factual assertions of those treatments as true or undisputed in his claim, I am not persuaded that a medical examination would have taken the Applicant’s case any further, or that there was any procedural unfairness in the Board’s exercise of its discretion in refusing the Applicant’s request, and I do not find this ground reasonably arguable for his intended challenge.

60.As for his Ground (6), the Applicant complains of not being given an opportunity to respond to certain COI relied on by the Board in its decision, namely under paragraph 12 (ii), (iii), (iv)  and (xxiii)  thereby depriving him the right to rebut those materials that may prejudice him.

61.Having considered them in details, and of which the Board referred to the first 3 items as articles about commitments made by the Sri Lankan police towards upholding the law, preserving public order and preventing crimes and terrorism (§12(iv), while the last item (xxiii)  was about the population and housing in Sri Lanka prepared by the Department of Census in June 2014 of which the Board did not make any comment at all, and in the absence of any evidence or suggestion as to how any of them would so prejudice the Applicant’s case or what response or rebuttal he would have made had those items been raised by the Board at the hearing so as to advance his case any further, I do not find this complaint reasonably arguable for his intended challenge either.

Ground (4): Error of law in failing to apply correct legal principles on torture, CIDTP and persecution risks                

62.Under this ground the Applicant complains that the Board wrongly concluded in its First Decision that the Applicant had not been the subject of serious harm and/or ill-treatment within the meaning of torture, CIDTP and/or persecution when it failed to direct itself to the correct legal principles and in particular to have regard to the Istanbul Protocol.

63.Ms Wong for the Applicant further submits that there had been a complete absence of discussion on whether the ill-treatment experienced by the Applicant in 1992 and 1996 which led to the subsequent development of his PTSD symptoms could be inhuman or degrading treatment or punishment for the purpose of CIDTP.

64.Ms Wong then submits that the Board also erred in law in regarding the tests of CIDTP and persecution as virtually the same, that such approach adopted by the Board clearly goes against the legal principles that it does not require that there must be “serious harm” in establishing persecution risk, and consequently the Board failed to consider whether detention upon return coupled with the Applicant’s past experience of being arrested and detained for his perceived and/or imputed involvement in LTTE would amount to persecution.

65.Given the fact that the Board rejected the Applicant’s claim essentially on its findings of no future risk of harm from the LTTE or the Karuna Group and hence no more basis for him to fear the Sri Lankan authorities for suspecting him of being involved with the LTTE, whatever error of law that the Board might have made in applying the legal principles in torture, CIDTP or persecution would not in my view advance or assist the Applicant’s case, and I do not find it necessary or relevant to consider this complain of the Applicant under Ground (4)  for the present purpose.

Conclusion  

66.In the premises, and for the reasons given, I extend time for the Applicant’s intended application as regard the Board’s Second Decision, and grant leave for him to apply for judicial review of both decisions of the Board on the bases of Grounds (1), (2), (5), (7)  and (8), and accordingly direct that he shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as the respondent and the Director as the interested party.

67.Lastly, there be costs in the cause, with Legal Aid Taxation for the Applicant’s own costs.  

Dated the 22^nd day of June 2022.

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