Badurjeman Mohamed Ajmeer v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1213/2019

[2023] HKCFI 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1213 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 13 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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

The applicant

4.The applicant is a national of Sri Lanka. He came to Hong Kong as a visitor in April 2005 and was allowed to stay in Hong Kong until 5 May 2005. He overstayed since 6 May 2005. He had made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He withdrew his claim on 23 May 2011. On 17 April 2013, he lodged a non-refoulement claim. On 17 July 2018, he lodged a supplementary claim form. His application was considered on all applicable risks other than torture risk.

5.The applicant claims that, if refouled, he will be harmed or killed by the Sri Lankan Army (“SLA”); paramilitary groups associated with the SLA and the Government of Sri Lanka; the Criminal Investigation Division (“CID”), cadres and former cadres of the Liberation Tigers of Tamil Eelam (“LTTE”); and former members of the Tamil Makkal Viduthalai Pulikai (“TMVP”). The applicant claims that this is due to his previous membership of the LTTE and desertion from that group.

6.Briefly stated, according to the applicant, in December 2014, two of his friends, Elil Venthan (“Elil”) and Ramesh, invited him to visit an LTTE camp in Nilaveli area, where he stayed for 5 days. He attended some training programmes and class for LTTE cadres. He was told to become a suicide bomber for the LTTE by the Chief of the camp. He refused and escaped by going through a jungle and wading across a river. Two days later, members of the LTTE went to his house to look for him. They brandished their knives in front of his parents. He managed to escape to the jungle and hid himself in a cemetery. He returned home after those people had gone. His father advised him to go to live in his uncle’s home in Colombo. He went there and lived for 3 months. One night in 2015, he was confronted by a group of around 10 persons on a road. He thought they were members of the LTTE. He managed to run away though he was chased by those people. A week after this confrontation, his uncle arranged him to come to Hong Kong. He left Colombo on 4 April 2005 and arrived in Singapore Changi Airport in transit, and then flew to Hong Kong the next day. Details of his story are set out in paragraph 10 of the Director’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 the applicant’s claim as the level of risk of harm was assessed to be low [23]. In essence, the Director found that (i) his perceived fear of risk from LTTE was speculative and unsupported by any objective evidence [24] – [31]; his family members were also not threatened by LTTE [32] – [33]; it was not accepted that he was a target of the SLA, CID, police, state/non-state actors and the government [34]; state protection would be available to him [36]; and internal relocation would be a viable option open to him [39].

The Board’s Decisions

9.The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter.

10.The Board considered the applicant’s evidence and found that he should have attended the LTTE camp at the invitation of his friends. But it did not accept that he was told to be a suicide bomber; that he was the target of the LTTE; that members of the LTTE had gone to his family’s house to look for him and that he was confronted by about 10 people of the LTTE, which are the main facts in support of his claim [49] – [50].

11.For the above 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

12.The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of this application, he said he fears to return to Sir Lanka because his enemies may kill him and they may also file fake charges against him.

DISCUSSION

14.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).

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

16.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.”

17.The Board did not accept the facts in support of his claim. See paragraph 10 above. There is no valid ground from the applicant to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 8^th day of August 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