Mst v. Torture Claims Appeal Board

HCAL 465/2020

[2022] HKCFI 2769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 465 of 2020

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.  extension of time be granted to the Applicant to apply for leave to apply for Judicial Review of the decision of the Torture Claims Appeal Board dated 13 November 2019;

2.  leave be granted to the Applicant to apply for Judicial Review of the decision of the Torture Claims Appeal Board dated 13 November 2019 on Grounds (2), (3) and (5) as per the Call-1 Form;

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:

1.The Applicant is a 40-year-old national of Sri Lanka who last arrived in Hong Kong on 11 May 2004 as a visitor under the passport of a different identity and was granted permission to remain in Hong Kong up to 10 June 2004 when he did not depart and instead overstayed, and was arrested on 4 August 2005 for using a false travel document and making a false representation to an immigration officer, for which he was subsequently convicted and sentenced to prison for 14 months. Upon discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the political parties People’s Alliance Party (“PAP”) and United People’s Freedom Alliance (“UPFA”) as he supported their rival United National Party (UNP”) and/or by the Sri Lankan Army/Police for having repeatedly raped him during their raids of the Buddhist Temple where the Applicant was being trained to be a monk and where he and many of his fellow monks supported UNP and engaged in their political activities. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ratnapura, Sri Lanka to Buddhist parents, and at the age of 11 he was sent by his parents to a Buddhist Temple in Kadawatha City known as ‘Abhinawaramaya’ to be trained as a monk and where many of the monks there were politically active and supported UNP under the influence of the chief monk known as the Teacher who was also a senior member of UNP.

3.In 1999 at the age of 18, the Applicant followed the footsteps of his fellow monks to support UNP and was able to work closely with the Teacher actively assisting him in organizing meetings and rallies for the party in various towns in their campaign for the 2000 presidential election, during which the Applicant and his fellow monks and UNP supporters frequently came under violent attacks by supporters of rival political parties PAP and UPFA who would throw stones at them and even a bomb on one occasion, and that the Applicant would also receive threats warning him to stay away from UNP activities.

4.After PAP won the 2000 presidential election and became the ruling party, the Applicant and some of his fellow monks hid in a friend’s place in Hihare of Galle District for fear of reprisal attacks by the PAP people for more than a month before they dared to return to the Temple.

5.However, soon some of the police and soldiers who were stationed in the same area came to the Temple to investigate the political activities of the monks during which the Applicant was seized by them and was repeatedly raped on numerous occasions that he became traumatized, but of which he was not allowed by the senior monks to disclose to outsiders for fear of tarnishing the Temple’s reputation.

6.As the Applicant suspected that those rapes were instigated by one of his fellow monks Dayala jealous of his close relationship with the Teacher and who was trying to wrestle the power from the Teacher to take over the Temple, and fearing that he would as a result become the victim of their power struggle, the Applicant decided that it was not safe to remain in the Temple or in Sri Lanka, and so on 6 January 2003 he departed the country for China, and from there he later sneaked into Hong Kong where he stayed in a temple in Tai Wo for 2 weeks before returning to the Temple in Sri Lanka.

7.As he was still fearful for his safety, the Applicant again departed Sri Lanka several weeks later on 20 February 2003 for Hong Kong under a different identity when he subsequently overstayed, during which he sought refugee status from UNHCR, and when his application was unsuccessful, he was repatriated back to Sri Lanka on 27 March 2004.

8.After returning to his home district, the Applicant was told by his family that some unknown men had come looking for him, and as he feared that they were either PAP people or the police or soldiers who had raped him in the past, he therefore departed Sri Lanka again on 11 May 2004 for Hong Kong under another identity where he again overstayed, and more than one year later was arrested by police on 4 August 2005 for using a false travel document and making false representation to an immigration officer, and for which he was subsequently  convicted and was sentenced to prison for 14 months.

Application for Non-refoulement Claim

9.Upon his discharge from prison and was referred to the Immigration Department for deportation, the Applicant then raised a torture claim which was rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”), but his subsequent challenge by way of judicial review was successful and that his non-refoulement claim was to be re-assessed under the Unified Screening Mechanism (“USM”) which came into effect on 3 March 2014 on all the applicable grounds other than torture risk, for which he completed a Supplementary Claim Form (“SCF”) on 5 September 2015 with legal representation from the Duty Lawyer Service (“DLS”), but failed to attend any of the scheduled screening interviews before an immigration officer due to alleged medical reasons.

Director’s Decision

10.By a Notice of Decision dated 11 June 2018 the Director rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

11.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and considered his previous entries into Hong Kong under different false identities, his failure to first raise his claim upon his last entry in Hong Kong until more than one year later of his arrest by the police as well as his repeated failure to attend the scheduled screening interviews before an immigration officers as evasive and uncooperative behaviors which undermined the credibility of his claim, that in any event in the absence of any evidence of official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Sri Lanka, 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 22 million people spread across a vast territory of more than 64,000 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 the country away from his home district in large cities such as Kandy where it would be difficult if not impossible for anyone to locate him.

Torture Claims Appeal Board’s Decision

12.On 15 June 2018 the Applicant lodged an appeal to the Board against the Director’s decision, and for which he attended 2 oral hearings on 14 June 2019 and 29 August 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board, and with submissions made on his behalf by his lawyer. On 13 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board found the Applicant’s evidence unreliable and illogical in that being only a junior monk and a low-tier worker that he could have received life threatening phone calls or that he could have been raped due to his political affiliation, that his behavior including coming to Hong Kong under other identities and failing to raise his claim until some 2 years later and only after his arrest by the police is inconsistent with someone who wanted to seek non-refoulement protection and which further undermined his credibility, that relevant COI showed that reforms had been on-going in Sri Lanka and that the government had taken steps and actions to protect the rights of its citizens with alternate avenues to seek justice in Sri Lanka, that the UNP which he belonged to is now the majority party in the government, that Buddhism is the prevailing religion and the majority of Sri Lanka that there is little risk to the Applicant upon his return to Sri Lanka, and that if necessary state protection as well as reasonable internal relocation would be available to him if needed upon his return that his claim for non-refoulement protection failed on all the applicable grounds.

Application for Judicial Review

14.On 20 March 2020 the Applicant upon obtaining Legal Aid filed his Form 86 as amended for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  Illegality/irrationality in failing to properly consider and/or sufficiently inquire into all relevant grounds of the Applicant’s non-refoulement claim;

(2)  Illegality/procedural unfairness/irrationality in failing to apply the relevant principles pertaining to assessment of credibility of non-refoulement claimants;

(3)  Illegality/procedural unfairness in applying the wrong test for state protection and/or to give adequate reasons for its conclusion on COI;

(4)  Illegality in failing to properly consider the ground of sexual orientation or identity in rejecting the Applicant’s claim; and

(5)  Illegality/irrationality in misinterpreting and/or wrongfully applying the relevant authorities in its consideration of the Applicant’s claim.

Late Filing of Form 86

15.As can be seen from the above that the Applicant’s Form 86 was filed outside the period under Order 53 rule 4(1) of the Rules of the High Court, Cap 4A which requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.As the last day of the three-month period for him to file his Form 86 fell on 13 February 2020, the Applicant was therefore slightly over one month late with his application, and in considering whether 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.

17.In the Applicant’s case, a delay of more than one month must be considered as substantial, for which he explained in his 2^nd Affirmation of 17 March 2020 (BD1/7/83) that after receiving the Board’s decision, he immediately on 26 November 2019 applied for Legal Aid to seek judicial review of the decision, and on 10 January 2020 he was required by the Legal Aid Department to submit his proposed grounds for judicial review for their consideration, and while he was eventually given Legal Aid, there was a temporary closure of the Courts and the Registry due to the Covid-19 pandemic (“GAP”) from late January 2020 to early May 2020, and as his lawyers also had to first seek an anonymity order from the Court which he subsequently obtained on 20 March 2020, and on the same day he filed his Form 86 which accounted for the delay.

18.According to the official record, it is true that the GAP did span through the relevant period within which the Applicant was required to file his Form 86. As such and in the circumstances of his case, I accept that the Applicant has provided a valid reason for his delay.

19.As for the merits of his intended application, before proceeding to consider the Applicant’s proposed grounds for his intended challenge, it would be relevant to first set out the Board’s findings on the Applicant’s evidence for his claim as stated in its decision.

The Board’s Evaluation of Evidence

20.In its decision the Board made the following evaluations of the Applicant’s evidence:

“22. There were at least 2 oral hearings. After hearing the oral evidence and all documentary evidence, I find that the Petitioner’s evidence is unreliable and that some were illogical. Coupled with the political situation now in Sri Lanka, I am of the view that the Petitioner has not made out a case where he should be given non-refoulement protection.

(i)  He was only a junior monk headed by the Teacher who was a senior member of the UNP. He joined UNP and worked with the Teacher during the 1999 presidential election. He organized meetings, political gatherings, distributed leaflets to households and asked them to join the party. His work was that of a low-tier party member who could not have any influence. It si extremely unlikely that such a low-tier worker could have received life threatening phone calls. If there were life threatening calls, it should be his Teacher who received them.

(ii)  (a) At Supplementary Claim Form, he stated he was raped because of his political affiliation. It was unlikely that a low-tier worker was raped while the coordinator was not raped.

(b) It was only his speculation that Dayala orchestrated the rape because Dayala was jealous of his close relationship with his Teacher.

(c) He was reluctant or refused to disclose details of the rapes

(d) Dr Tang Man Ho on 11 November 2017 stated “He continued to encounter his major stressor of prolonged investigations for asylum status since 2017. The major stressor that he has been facing is the prolonged investigations for his asylum status since 2017. During the investigations, he had to recall a lot of traumatic experience that he encountered in Sri Lanka in his teenage life. Additionally he also had to face the uncertainty whether he could stay with his wife and 3 young children …”

(e) The post traumatic stress symptom (PTSR) could be triggered by many factors anytime, anywhere. There is no complete cure.

(iii) His behavior is inconsistent with someone who really wanted to have non-refoulement protection in that:

(a) On 6 January 2003 he first came to Hong Kong and stayed in a Thai temple for 2 weeks. He did not apply for protection and went back to Sri Lanka and resumed his duty in the Temple. Nothing extraordinary happened.

(b)  1) In respect of his second trip, he came back to Hong Kong on 20 February 2003. He returned to the Thai temple.

2) Without any bona fide intention, he used a passport bearing another person’s identity. He had not taken the earliest opportunity to unveil his true identity. It was not until he was arrested and under investigation that his true identity was unearthed. There was no explanation or justification as to why he used a passport which bore another person’s identity.

3) That casts doubt on his credibility.

(c)  1) In May 2004 he arrived in Hong Kong for the third time.

2) He did not seek non-refoulement protection as soon as practicable.

3) He only raised his torture claim in May 2006 which was 2 years after he arrived.

4) He raised this non-refoulement claim only because he was in the pipeline of being sent back.

5) Thus it was never his intention to apply for non-refoulement protection.

(iv) In 2018 DFAT Report, it stated that the UNP secured the most votes in the recent parliamentary election in August 2015. Given that he was an UNP supporter in Sri Lanka, it is unlikely that he is personally at risk of torture upon his return to Sri Lanka.

(v) His refusal to attend interviews and refusal to answer written questions, his evasion in evidence created doubts in his evidence.

23. For all reasons above, he has not made out a case where he needed non-refoulement protection.”

21.It is not quite apparent from this evaluation of what were exactly the Board’s factual findings on the Applicant’s claim, but it seems clear that the Board rejected his claim essentially on the credibility of his allegation of being raped and sexually abused due to political reason, and hence it would be relevant to first deal with Grounds (2) and (5) of the Applicant’s complaints regarding the way that the Board dealt with the issue of his credibility.

Grounds (2) & (5): Multiple errors in assessing the credibility of the Applicant’s claim and/or failure to apply the relevant principles in determining the claim

22.Mr Francis Ngan of assigned counsel for the Applicant submits that the Board in criticizing the Applicant’s evidence as unreliable or illogical, it failed to properly indicate or identify which part of the evidence as such, contrary to its duty to give adequate reasons.

23.In particular, Mr Ngan submits, that it appears from the decision that the Board did not reject all the factual assertions put forward by the Applicant, at least in respect of the following:

(1)  his political background and involvement in Sri Lanka;

(2)  his experience of being sexually in Sri Lanka;

(3)  his relationship and dealings with the Teacher and Dayala in Sri Lanka; and

(4)  his traumatic stress symptoms.

24.If so, Mr Ngan submits that the Board should have considered all such accepted matters in the round when considering the Applicant’s claim, and to apply all the relevant principles in its assessment of the credibility of the claim, rather than making unwarranted speculations which is not permitted in the context of non-refoulement claims, and that there was no evidential basis or at all for the Board to make the following remarks or comments, and for which it gave no or no adequate reasons, in its decision:

(1)  that Dayala did not orchestrate the rape incidents (see [22(ii)(b)] of the decision);

(2)  that it was unlikely that the Applicant, being a low-tier worker only, received any threat or harm in respect of his political involvement ([22(i)] & [22(ii)] of decision);

(3)  that the Applicant’s PTSD could be triggered by many factors anytime anywhere ([22(ii)(e)] of decision) which is contrary to the medical evidence before it;

(4)  that nothing extraordinary happened to the Applicant after he had returned to Sri Lanka in January 2003 ([22(iii)(a)] of decision) which is factually incorrect as the Applicant’s evidence is that he continued to be sexually abused after his return;

(5)  that the Applicant’s behavior in Hong Kong was inconsistent with a genuine asylum seeker ([22(iii) of decision] by failing to raise his non-refoulement claim prior to 2006 when in fact the Applicant did make an asylum claim to UNHCR in Hong Kong in 2003; and

(6)  that there was evasion in evidence on the part of the Applicant ([22(v)] of the decision] but without indicating what such evasion was or give reasons why it was.

25.The principles and methods for establishing and assessing a non-refoulement claim are well established. While the burden of proof lies on an applicant to establish his claim, it is for the decision-maker charged with determining his status to assess the validity of the evidence and the credibility of the applicant, and in doing so, all of the evidence both oral and documentary must be considered and assessed, and not just selected portions of the evidence which must all be considered together, and not just parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants, as the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued in December 2011 (“UNHCR Handbook”) elaborated as follows:

“(1) Principles and methods

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 many 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 many cases, it may be for the examiner to use all the means at his 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 eth 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 in. 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 speak 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 “underserving 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 of 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.”

26.In other words, the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim, and that the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated.

27.As credibility findings have to be explained and supported by the evidence, and where the decision-maker finds a lack of credibility, there must be a basis or foundation in the evidence, which derives from the requirement that such assessment must be individual, impartial, and objectively based on the examination of the statements of the applicant and the documents submitted in support of his claim, and speculation will occur when a decision-maker reaches subjective conclusions without relying on supporting evidence, and adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition, or gut feelings: see UNHCR’s ‘Beyond Proof: Credibility Assessment in EU Asylum Systems’, May 2013, at p 41.

28.Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general COI and/or the claimant’s own evidence about what happened to him or her, as provided by the UK Home Office in its guidelines set out in Asylum Policy Instruction: Assessing Credibility and Refugee Status, version 9.0, 6 January 2015 at Section 5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

29.In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behavior and responses on the part of the claimant which run counter to what would be expected, as observed by Keene LJ at §25:

“There seems to me to be very little dispute between the parties in the legal principles applicable to the approach which an adjudicator, now known as an immigration judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by IAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

“An English judge may have, or think that he has, a 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 reaction 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, experience, 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 is reasonable man would have done. ”

30.In ST v Betty Kwan [2014] 4 HKC 419, the Court of Appeal identified such dangers of adopting personal assumptions, conjecture or speculations in assessing a protection claim when its screening process is not an adversarial one but rather in the nature of a joint endeavor, as Cheung CJHC (as he then was) in giving judgment of the Court explained at §43:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is “common” sense in Hong Kong could be “uncommon” sense in another place, and vice versa. As for the deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavor.”

31.Furthermore, given the considerable difficulties that 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 eth 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 RC 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.”

32.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’.”

33.As pointed out in UNHCR Beyond Proof, 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 it so stated 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.”

34.In the present case, while the Board was entitled to take the various behavior of the Applicant into account under Section 37ZD of the Ordinance as damaging his credibility, there does not appear to be any proper evidential basis in the first place for it to make those statements in its decision as noted in [24] above, such as Dayala did not orchestrate the rape incidents or that it is unlikely for the Applicant to be raped or to receive threats due to his low-ranking in the Temple, nor does it appear to have made any factual findings as to which part of the Applicant’s evidence is unreliable or which is illogical as it so stated in [22] of its decision, and that if it did so, it does not appear to have applied the correct principles or methods in its assessment of the credibility of the Applicant’s evidence and/or to have given any or adequate reasons for such assessment.

35.In the premises, and for the reasons given, I am of the view that these grounds of the Applicant are reasonably arguable for his intended challenge.

Ground (1): Illegality/irrationality in failing to properly consider all relevant grounds of the Applicant’s claim

36.Under this Ground, the Applicant’s case is that his non-refoulement claim consisted of 3 bases as follows:

(a)  His political opinion;

(b)  His religion and subsequent abandonment of monkhood; and

(c)  His experience of being sexually abused and raped.

37.These bases, Mr Ngan submits, had clearly been set out from the very beginning of the presentation of the Applicant’s claim as evidenced in the following:

(a)  His written representation dated 6 May 2006 of his claim to the Director (BD1/21/185);

(b)  His Answer 34 to the Director’s Questionnaire of 2 June 2006 (BD1/21/211-213);

(c)  His SCF dated 5 September 2015 (BD2/31/292-295);

(d)  His Grounds of Appeal set out in his Notice of Appeal dated 15 June 2018 (BD2/40/362-372);

(e)  His Skeleton Arguments dated 6 June 2019 for his appeal before the Board (BD3/43/511-521);

(f)  His Closing Submissions dated 26 September 2019 for his appeal before the Board (BD3/52/611-612).

38.Mr Ngan submits that despite all these clear presentation of the bases of the Applicant’s claim in his appeal, the Board’s focus was in his experience of being raped and sexual abuse by the soldiers and police, i.e. of the same sex when in Sri Lanka where homosexual acts were illegal and punishable with lengthy imprisonments, and considered his claim as one based upon his sexual orientation or gender identity which is nonsense and fundamentally wrong, and which was clearly not the basis of the Applicant’s claim that he had been ill-treated including but not limited to being raped in Sri Lanka due to his political affiliation with UNP.

39.As such, Mr Ngan submits that the Board had failed to properly consider and assess the Applicant’s political background based on his experience in Sri Lanka, what political enemies that he had, and what risk that he might face from such political enemies if refouled to his home country.

40.It is true that the Applicant in his written presentation of his claim to the Director did give details of being threatened and raped by army and police officers in Sri Lanka, and in his more comprehensive SCF he also stated to have well-found fear of being persecuted for reasons of his political opinion due to his membership in UNP in which he stated (BD2/31/310):

“1. If I am forced to return to Sri Lanka, I face a real, genuine and substantial risk of being tortured and/or subjected to T/CIDTP by the officers of the Sri Lankan Army (“SLA”), Sri Lankan Police, party members of the United People’s Freedom Alliance (“UPFA”, People’s Alliance Party forms part of this coalition) with the acquiescence of the Government, including members of the police and/or military and/or security forces and/or its agents.

2. I have a well-found fear of being persecuted in Sri Lanka for reasons of my religious belief (real or perceived) of Buddhism and/or my political opinion (real or perceived) due to my membership with United National Party (“UNP”) and/or membership of a particular social group (real or perceived) as a result of my identity of a monk at ‘Abhinawaramaya’ temple (the ‘Temple’) and that my life or freedom would be threatened in account of the same.”

41.In his subsequent appeal to the Board, the Applicant also included as part of his grounds of appeal that on the basis of the history of his sexual assaults by the Sri Lankan Army and police officers, the Director had failed to take account that when the State was the persecutor, state protection and internal relocation would not be available to negate such risk (see BD2/40/366-367).

42.In the Board’s decision, however, it is clear to me that the Applicant’s case and bases therefor had been fully and properly set out in [21] including his fear of violence from people opposing UNP especially those from opposition party PAP after the latter had won the election, and that notwithstanding its rejection of the Applicant’s claim as to his credibility, the Board did also proceed to consider whether state protection and internal relocation would be available to negate such risk to the Applicant, and while its such assessments may be open to criticisms, and which is in Ground (3) of the Applicant’s complaint, I do not agree that the Board had incorrectly identified the Applicant’s claim as one based upon his sexual orientation or gender identity only, and that I do not find this ground of the Applicant reasonably arguable for his intended challenge.

Ground (3): Failure to apply the relevant test for the availability of state protection

43.As noted above, it is the Applicant’s case that the Board failed to apply, or properly apply, the relevant test for state protection, and also failed to accordingly give adequate reasons for its conclusion on the relevant COI.

44.After considering some downside of the Sri Lanka authorities, Mr Ngan submits that the Board merely referred to the facts that the Constitution of Sri Lanka protects the rights of its citizens, that the police maintained an official website as an avenue for complaints, and that US State Department reported the existence of law and organizations in Sri Lanka protecting human rights, and proceeded to conclude that reasonable state protection would be available to the Applicant if refouled to Sri Lanka, of which Mr Ngan submits is a wrong approach to proper consideration of COI and hence the relevant country condition, as it is necessary to also consider the effectiveness of the domestic laws and measures of state protection, as the question is not whether some progress has been made or whether some protection exist, but that whether the state is able and willing in practice to provide effective protection.

45.In the UNHCR’s Guidelines on International Protection No. 9, HCR/GIP/12/09, 23 October 2012 at [35]-[37], it is stated that even in situations where the harm is from non-State actors, persecution can be established where the State is unable or unwilling to provide protection against such harm, such as those against LGBTI individuals in the country of origin, and even where the legal and socio-economic situation of those individuals is improving, the availability and effectiveness of State protection needs to be carefully assessed based on reliable and up-to-date COI information that such reforms are not just transitional, or that they may not impact in the immediate or foreseeable future as to how society generally regards such individuals, as the existence of certain elements such as anti-discrimination laws or the presence of LGBTI organizations do not necessarily undermine the well-foundedness of the applicant’s fear, as social attitudes may not be in line with the law and prejudice may be entrenched, with a continued risk where the authorities fail to enforce protective laws, as a de facto, not merely de jure, change is required and an analysis of the circumstances of each particular case is essential.

46.In the present case, the Applicant’s claim of fear of harm is based on past violent incidents of sexual abuses and rapes by army and police officials who are clearly regarded as State actors or at least appeared to be so even if they might have only been instigated by the Applicant’s fellow monk Dayala who was also said to be a UNP supporter trying to get control of the Temple for his own political ambition, and hence by merely stating that UNP having won the parliamentary election in 2015 and that the Applicant being also an UNP supporter to conclude that it is unlikely that he will be personally at risk of torture upon his return to Sri Lanka (at [22(iv)] of the decision), it seems to me reasonably arguable that the Board had failed to conduct the necessary or sufficient inquiry and analysis on the relevant COI and/or to give any or adequate reasons for his such conclusion on COI.

47.In fact, the requirement for the Board to give reasons in an appeal of this nature is fundamental, as it was stated by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at para 51:

“ … 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.”

48.In the premises, and for the reasons given, I agree that this ground of the Applicant is reasonably arguable for his intended challenge.

Ground (4): Failure to properly consider the ground of sexual orientation in the Applicant’s claim

49.In its assessment of the Applicant’s claim under Persecution Risk, the Board stated in the decision at [45] as follows:

“His fear of ill-treatment does not fall within the definition of persecution in that:-

(i)   In the case of LH v IP, the Upper Tribunal in UK ruled that homosexuals do not come within the definition of a particular social group within the Refugee Convention. In any event according to him, he was not a homosexual. That excluded him from being within that group.

(ii)  The dispute he had with Dayala was only a personal dispute and did not come within the definition of persecution.”

50.Mr Ngan for the Applicant submits that the Board was wrong to find that homosexuals do not come within the definition of a particular social group by misinterpreting LH & IP (gay men: risk) Sri Lanka CG [2015] UKUT 00073 (IAC) as that case involved gay men in civil partnerships or persons in gay marriages, that it also failed to apply the relevant legal principles when assessing a claim based upon homosexuality, or the perceived sexual orientation or gender identity of the Applicant as shown by its remark that the Applicant had denied to be a homosexual, while its criticisms of eth Applicant’s reluctance to give details of the rape incidents notwithstanding the medical evidence before it are also inconsistent with how a decision-maker on non-refoulement claim should deal with the evidence of a homosexual claimant.

51.While there is no doubt that gay men and women may be considered to be a particular social group for Convention reasons for persecution: see Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629 at 643-644 in which it is clearly recognized that a group based on a common characteristic of sexual orientation may be included in a particular social group that is in need of internal protection, it is however in my view not necessary to consider whether the Board had indeed failed to apply the relevant principles for assessing the Applicant’s claim based on homosexuality, as that was never the basis of his claim, and as found by the Board that the Applicant had never claimed to be a homosexual or that he feared of persecution as such if refoueld to Sri Lanka.

52.As noted above at [37], that was not how the Applicant had based his claim for protection, and as correctly pointed out by the Board that he had never claimed to be a homosexual, nor is there any evidence that any such ‘perceived’ sexual orientation of him might have arisen or existed after those incidents of him being raped by army and police officers, as it was his own evidence, and as recorded by both the Director and the Board in their decisions, that he was told by the Teacher to keep those rape incidents a secret so as not to bring the reputation of Buddhist religion and/or the Temple into disrepute, and in the absence of any evidence that those rape incidents had subsequently been exposed, there is simply no evidential basis or reason for the Board to find it necessary to consider any perceived sexual orientation or gender identity that might have as a result arisen.

53.While it was the Applicant’s evidence that he had later been informed by his family that some men had come to his home looking for him, again it is his evidence that it was his suspicion that they were army or police officers who had previously raped him rather than a fear of persecution due to any perceived sexual orientation or gender identity on his part.

54.As such, I am not satisfied that this ground of the Applicant is reasonably arguable for his intended challenge.

Conclusion

55.In the premises, and for the reasons given, I am satisfied that there are merits in the Applicant’s intended application for judicial review of the Board’s decision on the basis that Grounds (2), (3) and (5) are reasonably arguable for his intended challenge, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

56.Accordingly, I extend time to his application, and grant leave to the Applicant to apply for judicial review of the Board’s decision based on those grounds, and direct that he shall file his originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, with costs to be in the cause, and that his own costs to be taxed on Legal Aid Regulations.

Dated the 7^th day of September 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