Habeebulla Faiz v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1112/2019

[2022] HKCFI 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1112 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Sri Lanka. He entered Hong Kong on 5 March 2005 as a visitor and was permitted to stay until 4 April 2005. He did not depart and had overstayed since 5 April 2005. On 12 March 2006, he was arrested by the police. On 8 May 2006, he lodged a torture claim which was withdrawn on 8 October 2012 and deemed closed on 18 October 2012. On 25 October 2013, he lodged a non-refoulement claim. Since he had withdrawn his torture claim, his non-refoulement claim was assessed by the Director on all applicable grounds other than torture risk[1].

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the Liberation Tamil Tigers Elam (“LTTE”). He also feared that he would face the risk of harm as he was a minority Muslim. The stories presented to the Director could be summarized as follows. In 1997, the applicant and his sister returned to Mannar where the LTTE would extort money from the Muslims as taxes, take away their vehicles and kidnap the children. The applicant and his family did not choose to leave Mannar as he was positive about the peace negotiation. In around 2003, the applicant was nominated to be an informant for the Sri Lanka Army (“the Army”). His exercise of duties led to a successful arrest of a LTTE member. Later in August 2004, the LTTE extorted money from him but he did not comply. The government and the Army did not take any actions against the LTTE.

6.In September 2004, the applicant was abducted by the LTTE members for being an informant for the Army. During detention, he was tortured by the LTTE members for information he had given to the Army. After his release, in February 2005, he encountered his kidnappers and notified the Army. One of the kidnappers was shot and arrested. As a result, the LTTE kept looking for him. Meanwhile, the applicant also complained that there were increasing attacks against the Muslims in his home country. Thus, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 9 August 2018 by the Director (the “Director’s Decision”) and paragraphs 51 to 87 of the Board’s Decision.   

The Director’s Decision

7.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By way of the Director’s Decision, the Director dismissed his claim on the basis that no substantial grounds were present to believe that he would face any real risk of harm upon refoulement. In elaboration, the Director found that (i) his behavior of returning home after the kidnap incident was inconsistent with his perceived lethal threats from the LTTE members and the long lapse of time indicated that the LTTE no longer had interest in him [14]; (ii) he had never been attacked for being a minority in Sri Lanka [15]; (iii) state protection would be available to him [16]-[19] and (iv) internal relocation was a viable alternative [20]-[25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 20 February 2019, the Board conducted an oral hearing for his appeal.

10.Having considered all the evidence, the Board made the following findings. First, the Board found that, between 2003 to 2004, the applicant was only extorted money and threatened by the LTTE. He was not physically harmed [108]. Secondly, the applicant claimed that he was tortured by the LTTE members. However, the Board considered the methods adopted by the LTTE during the said detention, such as the duration, weapons used, injuries sustained and treatments received, and found that the LTTE members had no real intention to kill the applicant. They simply wanted to revenge against the applicant for being an informant [113]. Meanwhile, the Board also noticed that the applicant returned home, where he was abducted, after the kidnap incident [115]. Thirdly, the medical examination the applicant had undergone in Hong Kong in 2007 did not assist his claim [116]. Fourthly, despite knowing that the LTTE members were looking for him, he still returned home after staying in his relative’s for three days, which showed that he was not afraid of the possible reprisals from the LTTE. Besides, the LTTE did not inflict any harm on his family during the visits [117]-[122]. Simply put, despite acknowledging that the applicant was a victim of assault, the Board refused to accept that the LTTE intended to seriously harm or kill the applicant [123]-[138].

11.Insofar as his fear that he would be harmed as a minority, the Board found that, according to the country of origin information (“COI”), the violence against the Muslims was restricted to certain areas and the fact that the applicant’s family were still living in the same area unharmed indicated that he would not face any real risk of harm if returned [139]-[151].

12.Further, upon a close examination of the COI, the Board found that state protection would be available to the applicant [152]-[184] and that internal relocation was also a viable alternative [185]-[197].

13.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 25 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affirmation in support of his application, the applicant said he disagreed with the Board and that he still had problems in his country.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.Those grounds above are not valid reasons to challenge the Board’s Decision.

20.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 7^th day of July 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