Ds v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1109/2021 on BabelCite. This High Court CFI judgment was delivered on 15 June 2023.
1. This is an ex parte application where the applicant applies for leave to apply for judicial review of the Decision dated 7 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
Cited by 2 cases · Cites 9 cases
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HCAL 1109/2021 [2023] HKCFI 1534 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1109 of 2021
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.This is an ex parte application where the applicant applies for leave to apply for judicial review of the Decision dated 7 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 2.The applicant is represented by Ms Michelle Wong, Counsel, instructed by Daly & Associates. 3.Upon applicant’s application, leave was granted to the applicant to amend his Form 86 and to file affirmations in support of the amended Form 86. 4.The hearing took place before this Court on 19 May 2023. The applicant 5.The applicant is a national of Sri Lanka. He last entered Hong Kong on 16 June 2003 on the strength of a Sri Lankan passport bearing a false identify and was allowed to remain in Hong Kong as a visitor until 16 July 2003. He did not depart and had overstayed since 17 July 2003. On 30 March 2004, he was arrested by the Hong Kong police. On 15 November 2004, he raised a torture claim. His torture claim was rejected by the Director on 26 October 2012 and the subsequent appeal was dismissed by the Board on 18 June 2014. On 11 January 2013, he lodged his non-refoulement claim, which was assessed on all applicable ground other than that on torture risk[1]. 6.The applicant claimed that, if refouled, he would face risk of harm from captain Ranjith and Jothi, as well as their affiliates or gang members. He also feared that he would be arrested, detained and tortured by the Sri Lankan Police, the Terrorist Investigation Department (“TID”), and/or Criminal Investigation Department (“CID”). 7.The applicant was born in Negombo, Western Province, Sri Lanka. He belonged to the Sinhalese ethnic group. From 1997 to 1998, he worked as a taxi driver in the airport. In 1995, there was a judgment handed down against minister Jeyaraj Fernandopulle, prohibiting him from monopolizing the airport taxi services. However, Fernandopulle did not comply with the judgment and continued to extort from the other taxi drivers, including the applicant. Captain Ranjith and Jothi were body guards to Fernandopulle and they handled the extortion work for him. According to the applicant, if the taxi drivers refused to pay these illegal fees, Ranjith and Jothi would harm them. 8.On 3 March 1998, the applicant’s taxi was intercepted by Jothi and two armed men. He was forced to drive to Jothi’s house where three more armed men boarded his vehicle. Thereafter, the applicant was coerced to drive them to an unknown address. Shortly after, three persons were kidnapped by Jothi and his men and forced into the applicant’s vehicle. They were also beaten by Jothi and his men. Yet, at that time, a police car was approaching. Jothi and his men immediately fled the scene. The victims rushed to the police car and the applicant was arrested. He was later charged for this kidnap incident. 9.The applicant stated that, when he was arrested, he was abused by around five police officers for information about the kidnappers. They tied him to a lamppost with rope and beat him with bare fists. His right leg was also burned with a burning charcoal. The abuse lasted for an hour and the applicant gave them Jothi’s name. After that, the applicant was detained in Negombo police station. He was demanded to provide the information of the kidnappers at the presence of one CID officer, and the younger brother of Ranjit who was one of the victims. He was further assaulted by the police officers as he was tied to a pulley system installed in the celling and placed upside down. The police officers hit his head with batons and cricket bats, his heels with a hard rubber pipe for his confessions. He repeated that he only knew Jothi. Meanwhile, he was denied water and medical treatments. The same evening, he was taken to appear before a judge. 10.After the court appearance, the applicant was remanded in the Negombo prison. In the prison, the applicant encountered Ranjith and Titus who were also in the prison for different matters. Ranjith threatened to cut off his leg as Ranjith’s brother was one of the victims in the kidnap incidents. As the applicant was deprived of medical treatments, he protested and was transferred to Mahara prison in Colombo before he obtained bail on 17 March 1998. He lived with his friend in Matara and stayed for around four to five months. While he was away, his mother informed him that Ranjith and Jothi harassed her and his sister on various occasions. Ranjith threatened to kill the applicant because he kidnapped Ranjith’s brother whilst Jothi went after him for his betrayal. In one incident, the applicant’s mother was hit on her leg with a pistol. His mother sought to file a complaint to the police stations but all failed. Thereafter, the applicant moved his sister to stay with an uncle in Kotugoda. Meanwhile, he continued to stay in Matara under the name of Mahinda. His mother also informed him of the police visits as he failed to comply with his bail condition to appear before the court. 11.In around October or November 1998, the applicant saw Ranjith’s driver in Matara. He then fled to Colombo. A week later, he was informed by his friend that the police went to Matara to look for him. Later on, the applicant escaped to Hong Kong for the first time. On 5 December 1999, he was arrested by the police and served 6-month imprisonments. 12.On 27 April 2000, the applicant returned to Sri Lanka. As he believed that there was an arrest warrant against him, he asked his mother to bribe the police at the airport. Upon arrival, he moved to Kurunagala and stayed with his friend. As he filed a motion through his lawyer informing the court that he was unable to appear before the court due to the death threats, Ranjith knew about his return. He threatened the applicant’s mother for the applicant’s whereabouts. On 27 July 2000, the applicant attended the Negombo courts with his lawyer. He was released on personal bail with his mother as guarantor. Yet, he failed to attend the subsequent court hearings. 13.In December 2000 or January 2001, the applicant started working for someone with a nickname of “Black Cat” at a funeral home. Black Cat told the applicant that he knew Ranjith and he had solved the applicant’s problem with Ranjith. One night in January 2001, the applicant’s colleague Kalithe asked him out for a drive. It turned out that Kalithe went to kill a man. Later, Kalith and Black Cat were arrested by the CID but were released three days after bribing the police officers. Kalith threatened the applicant to confess for the murder in exchange for a settlement of dispute between the applicant and Ranjith, as well as Jothi. Otherwise, he would kill the applicant. The applicant then escaped to Galgamuwa. 14.In February 2001, the applicant fled to Hong Kong again. Two or three months after his arrival, his mother informed him that Titus was killed and he was falsely accused of involving in Titus’s murder. Meanwhile, Ranjith’s gang kept harassing his mother. 15.In February 2003, the applicant returned to Sri Lanka for his mother as his failure to attend court hearings would result in his mother’s imprisonment. On 18 February 2003, the applicant attended the court hearing and was granted another bail. In June 2003, fearing that he would be located by Ranjith and Jothi, he fled to Hong Kong again and have not returned to Sri Lanka since then. In 2008, the applicant was informed that the owner of the vehicle used in the kidnap incident was killed, as well as two other persons related to his case. He further added that the last harassment happened in August 2017 when Jothi sent his people to threatened the applicant’s mother. Details of the applicant’s claim, his supporting documents, as well as the country of origin information (“COI”) submitted by him or his duty lawyer could be found at paragraph 8 of the Notice of Decision dated 25 January 2018 by the Director (the “Director’s Decision”). The Director’s Decision 16.The Director considered the applicant’s claim in relation to the following risks:
17.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the inconsistencies in the applicant’s claim cast serious doubts on his credibility [17]-[18]; (ii) state protection would be available to him [19]-[28]; and (iii) internal relocation was a viable option [29]-[34]. The Board’s Decision 18.The applicant appealed the Director’s Decision to the Board. The oral hearing of his appeal was held on 3 October 2019, 25 October 2019, 6 January 2020 and 30 June 2020 respectively, during which the applicant and the Director were both legally represented. 19.The Board summarized the applicant’s evidence stated in the previous statements and clarified with him on the material aspects during the oral hearing. It also examined the documents produced by the applicant [16]-[77]. Having considered all the evidence, the Board cast doubt on the applicant’s credibility for the following reasons [78]. 20.First, the Board refused to accept the occurrence of the kidnap incident. The Board noted there were seven participants from Jothi’s gang involved in the kidnap incident, as well as a van. Adding one stranger, namely the applicant, into the plan would increase the level of uncertainties and it was suspicious to use the applicant’s van containing a conspicuous identification number printed on the sideboards [79]. In particular, the Board found that the applicant’s evidence as to why Jothi would target and force him to join the illegal operation kept changing [80] and that his explanation of why Jothi needed his taxi (which he later described as a van) was unreasonable and not persuasive [81]. Also, the Board found it hard to believe that the applicant did not notice the firearms brought into his van by Jothi and his men as, according to his own evidence, the length of the weapons were at the length of his arm [82]. 21.Secondly, the Board considered the alleged assaults, the one happened at the scene of his arrest and one that happened in the Negombo police station. It found that the applicant’s alleged injuries were not supported by the magistrate’s notes dated 4 May 1998 submitted by the applicant [85] and that his evidence on whether he was assaulted in the police station was also changing [86]. Further, the Board noticed that the police investigation record on 24 May 2001 did not support the applicant’s claim that he gave Jothi’s information to the police right after his arrest. In the police investigation record, the names of Jothi and one Chamila were added two years after the kidnap incident. Meanwhile, if, as alleged by the applicant that Jothi was active in the airport extortion business, he could have been tracked down by the police earlier [87]. In addition, the Board noted that his mother’s address was different in the police investigation report from that in his questionnaire [88]. 22.Thirdly, the Board refused to accept the applicant’s evidence on the involvement of his former employer Gamini in the kidnap incident. It considered that the applicant’s evidence on this matter was confusing and constantly changing so as to adapt to the documentary evidence. The fact he presented two versions further undermined his credibility and reliability [89]-[95]. Further, his version that Gamini was killed in 1998 could not stand as Gamini’s name remained as a defendant in accordance to the magistrate notes in 2003 and the police investigation report in 2001 [96]-[98]. 23.In these premises, the Board concluded that the applicant’s evidence was inherently inconsistent, and that the court documents submitted by him could not advance his case or contradict with his claim [102]-[103]. As a result, the Board found that the applicant’s claim lacked credibility. 24.In any event, the Board noted that the alleged incidents occurred some twenty years ago with no evidence of latest progress [106]-[108]; that, after considering the relevant circumstances and the COI, state protection would be available to him [109]-[115]; and that it was unlikely that the applicant would face risk of harm because of the kidnap incident as the case had passed to court and the police investigation was over. The Board also noted that he had twice gone back to Sri Lanka since then without encountering any problems [119]. 25.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal. Application for leave to apply for judicial review of the Board’s Decision 26.The applicant has filed Form 86 dated 6 August 2021, as amended by an Order of the Court on 16 May 2023, for leave to apply for judicial review of the Board’s Decision. 27.The applicant has submitted 5 grounds in support of his application.
DISCUSSION 28.The preliminary features in this case are that the applicant was represented by Mr Daly before the Director and the Board. The hearing had lasted for 4 days between 3 October 2019 and 30 June 2020. The Director was represented by government counsel and one outside counsel before the Board. The Board compiled the Board’s Decision on 7 May 2021, having taken about 11 months. 29.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). 30.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 31.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
Ground (1) 32.The applicant submits that the Board’s ways of dealing with the applicant’s evidence by way of microscopic examination, selective focus on trivial inconsistencies, ignoring the consistent details and unreasonable demand of original corroborative evidence, are not in line with the established legal principles that all evidence has to be considered in the round and the applicant should be afforded the benefit of the doubt. 33.The applicant has set out various paragraphs (§22 to §88) in the Board’s Decision to illustrate the issues. 34.As the Director was legally represented by 2 counsel at the hearing, the applicant’s evidence must have been vigorously cross-examined by counsel acting for the Director. The Board was duty-bound to set out the applicant’s evidence in the Board’s Decision. At paragraph 16 of the Board’s Decision, the Board said:
35.From paragraph 17 onwards to paragraph 77 of the Board’s Decision, they are the evidence stated in the applicant’s previous statements. Starting from paragraph 78, the Board assessed the credibility of his evidence. 36.The applicant complains that the Board had deliberately disregarded the parts in the documentary evidence which are consistent with the applicant’s claim. References were made to the following documents:
37.The Board had, in the Board’s Decision, taken those documentary evidence into consideration, as shown by the paragraphs within brackets above. As to what weight the Board had given to the documentary evidence, it is a matter at the Board’s discretion, which this Court should not intervene as held by the Court of Appeal in the Kartini’’s case. 38.The applicant’s final complaint under this ground is that the Board unreasonably demanded corroborating evidence and even the original thereof to substantiate the applicant’s case, referring to the Kidnap Press Report. 39.This issue arose under the circumstances as described in paragraph 75 of the Board’s Decision:
40.It seems clear that it was the applicant’s duty lawyer’s choice not to produce the original Kidnap Press Report to prove his case. The applicant is not allowed to make a complaint for his lawyer’s own choice. 41.Apart from the Kidnap Press Report, the Board had also mentioned the Police Investigation Reports, which formed part and parcel of the Magistrate’s Notes. The quality of this documentary evidence is poor, with unknown identity of the person who typed out the document; unknown identity of the person verifying the typing; unknown identity of the Magistrate(s) etc. See paragraph 77 of the Board’s Decision. The Board finally found:
42.Therefore, ground (1) fails. Ground (2) 43.Counsel for the applicant submitted that had the Board conducted a holistic assessment of all the evidence rather than taking a separate and compartmentalized approach, it might have come to a different conclusion as to the credibility of the applicant’s claims. Counsel for the applicant referred to the Kidnap Report, the Court Documents, the Murder Press Report and the Mafia Press Report; the latter two were not even mentioned at all in the Board’s Decision. 44.Counsel further submitted that the Board ought to have evaluated each piece of documentary evidence with care and in light of all the other evidence and explained why some documents were accepted as genuine while others were not accepted. 45.The Board had considered carefully the evidence in this case. From paragraphs 40 to 48, it set out the documentary evidence. It went on to set out other evidence on the facts of the applicant’s case, interfacing with the relevant documents, giving reasons and comments on them before it came to the overall assessment of credibility of the applicant. When it came to the conclusion on the credibility of the applicant’s evidence, it set out a summary of the reasons for its assessment at paragraph 103:
46.The applicant has not disputed the above findings of the Board. 47.Counsel for the applicant complains that the Board had not considered or taken into account all the evidence, cherry-picking bits of evidence that support the applicant’s claim for its overall assessment of the applicant’s evidence. Had the Board done so, it should have come to a different conclusion. 48.It is trite that where a tribunal has to make assessment of the evidence in its fact-finding exercise, it has the discretion to make evaluation of the evidence before it and selects such evidence that it considers relevant and reliable and rejects the other evidence which it finds unreliable. The Court of Appeal in Wong Kin Kwok Michael v The Dental Council of Hong Kong CACV 183/2014, Hon Yuen, Kwan and Chu JJA, 20 May 2015 held:
49.The wide discretion of the Board in selecting evidence is further demonstrated by Mr Recorder Stewart Wong SC in Leung Wan Kee Shipyard Limited v Dragon Pearl Night Club Restaurant Limited and Chan Siu Tung HCA 1288 of 2010 referring to Mr Mortimer J in All Best Wishes Ltd v Commissioner of Inland Revenue (1992) HKTC 750 at 773:
50.This Court, as guided by the Court of Appeal in the Kartini’s case, should not interfere with the Board’s discretion in its assessment of the evidence before it. 51.Ground (2) fails. Ground (3) 52.The applicant argues that having found that no weight could be given to the Court Documents and the Kidnap Press Report, it defies logic for the Board to keep going back to rely on those rejected documentary evidence to conclude that the applicant’s account of events is inconsistent or implausible. Counsel submits that this is not a proper assessment of the evidence, and the Board has erred in arriving at the adverse credibility findings based on such flawed reasoning. 53.The analysis under Ground (2) have shown the wide discretion of the Board in its assessment of the evidence. To say that the Board rejected the documentary evidence and then referred to them to contradict the applicant’s evidence defies logic cannot be accepted. In my view, the contrary is true. The Board did not refuse to admit the documentary evidence, but only gave no weight to the documentary evidence in support of the applicant’s claim because the evidence is inconsistent with, or even contradictory to, the applicant’s oral evidence. This supported the Board’s conclusion that the applicant’s evidence was not reliable. On this basis, the Board may determine the applicant’s claim. 54.Ground (3) fails. Ground (4) 55.The applicant argues that the Board’s credibility assessment is erroneous in that the Board relied on peripheral inconsistencies in the applicant’s oral and documentary evidence in arrive at an adverse finding of credibility against him. 56.The Board has given its reasons in paragraph 103 of the Board’s Decision, supra. The applicant has not been able to refute the reasons. Nor has the applicant explained why he considers that those were only minor inconsistencies. The Board had the conduct of the investigation and the hearing had taken 4 days, with oral evidence from the applicant and legal submissions from legal representatives of both parties. In any event, this Court has no jurisdiction to interfere with the Board’s finding of the facts, absent any ground of administrative law as held by the Court of Appeal in the Kartini’s case, supra. The applicant makes reference to the case of KM v Director of Immigration [2020] HKC 608. It is accepted that it is wrong if the Board made its finding of facts based upon its misunderstanding of the evidence, speculation or conjectures, which will be wrong in law and/or Wednesbury unreasonable. However, the applicant has not been able to show that the reasons given by the Board in paragraph 102 of the Board’s Decision fall into any of such categories. 57.Ground (4) fails. Ground (5) 58.The applicant complains that the Board did not deal with any grounds of appeal raised in the Notice of Appeal/Petition, but directly considered the applicant’s case afresh, relying upon the decisions made by the Court in Rahman Mohammad Arifur v Li Kwok Wai [2018] HKCFI 2726. 59.In that case, the Board heard the case afresh under the following circumstances:
60.This Court held:
61.In this case, the Board had, in paragraph 11 of the Board’s Decision, set out the 5 grounds of appeal, viz. the errors of the Director in assessing the credibility of the Petitioner which included that the documentary evidence produced by the Petitioner were erroneously dismissed and that the Director had erred in not seeking further clarification from the Petitioner etc. In my view, it is appropriate for the Board to hear the evidence afresh instead of embarking on legal analysis of the appropriate ways of assessing the evidence, which will be a waste of time and cost. 62.This ground has no merit and fails. State protection 63.The Board had also found that state protection would be available to the applicant [109] – [115], to which the applicant has raised no objection. This will effectively alleviate his risk of going back to Sri Lanka. OBSERVARTION ON COSTS ON COI 64.I have noticed that the COI materials in this case are altogether 20 items, covering from page 752 to 816, with small font and closely packed presentation. The cost for the preparation and printing of all of these materials will be considerable. The materials dated from 2013 to 2019. The deportation order was made on 24 March 2000[4]. The Legal Aid Service is funded by the public fund, which should be spent scrupulously. 65.I have, in another case NP v The Torture Claims Appeal Board/Non-refoulement Claims Petition Office with the Director of Immigration as interested party, HCAL 1513 of 2019, discussed this issue, which is also applicable to this case. I shall recap the discussion here. 66.The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, CJ Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ held:
67.The purpose of making reference to the COI is for assessment of the real risk of the applicant being subjected to the applicable risks upon refoulement. The COI should be those that have come to light after the deportation decision was taken. Other outdated COI or irrelevant COI should not be submitted to the Board for the purpose of saving time and cost for the proceedings. The legal representatives before the Board have a duty to ensure compliance with this requirement as they have the duty to uphold the CJR in all civil legal proceedings in Hong Kong. This Court has the power to supervise their professional conducts and ethnics and to ensure their compliance by way of case management and making the orders of costs for the proceedings before the Board and the Court under Order 1B, rule 1 of the RHC. 68.For the above reasons, I shall make an order below that the costs of the applicant should be taxed in accordance with the Legal Aid Regulations, disallowing any costs incurred for the COI which are deemed irrelevant to the proceedings before the Board and/or before this Court. CONCLUSION 69.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. 70.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review. DISPOSTION 71.The Court shall make an Order in terms as follows:
Dated the 15th day of June 2023
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Form CALL-1
[1] risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115. [2] Section 37ZQ(2) of the Ordinance: The function of the Appeal Board is to hear and determine— (a) an appeal made under section 37ZR [3] Section 18(1)(a) of the Ordinance (1) In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider— (a) the same evidence that was before an immigration officer; [4] Paragraph 10 of the Director’s Decision at page 109 of Vol. 1 of the Bundle of Documents |
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