V v. Torture Claims Appeal Board

HCAL 308/2017

[2023] HKCFI 2677

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 308 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;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A);

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party;

4.  Costs be in the cause; and

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

Observations for the Applicant:

1.The Applicant is a 65-year-old national of Sri Lanka who first arrived in Hong Kong on 24 December 1999 on a passport with another identity as a visitor with permission to remain as such up to 24 January 2000. On 15 January 2000 he informed the Immigration Department that he had lost his passport and was applying for a replacement from the Sri Lankan Consulate in Hong Kong for his departure before the expiration of his visiting visa, but thereafter he did not depart and therefore overstayed in Hong Kong until some 11 months later on 24 November 2000 when he tried to depart at the airport on a passport bearing yet another identity, he was detained by the Immigration Department for investigation, and was subsequently on 13 February 2001 repatriated to Sri Lanka.

2.Some 5 years later in August 2006 the Applicant sneaked back into Hong Kong, and was arrested by police on 23 January 2008. After he was referred to the Immigration Department for investigation, he revealed his real identity 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 at risk of being discriminated or persecuted or tortured by the majority Sinhalese population and the Sri Lankan police and authorities due to his Tamil ethnicity, his past arrests and detentions for suspected involvement in or connection with the terrorist group Liberation Tigers of Tamil Eelam (“LTTE”) and as an unsuccessful asylum-seeker/returnee. He was subsequently released on recognizance pending the determination of his claim.

Factual Background of Claim

3.The Applicant is a Tamil born and raised as a Christian in Badulla District, Uva Province, Sri Lanka where the majority population is Sinhalese. After receiving 5 years of education, he worked as a salesman, cashier and bus conductor in Colombo to make his living.

4.In 1989 he moved to Negambo and worked in similar jobs. In 1994 he married his Sinhalese wife and moved to her home village in Alutkuruwa outside Negambo where they raised a family with a daughter.

5.One day in May 1995 the Applicant was arrested by police on suspicion of being a member of LTTE after the Colombo Central Bank was bombed by LTTE. The Applicant was detained together with many other Tamils in the Negambo Police Station for interrogations during which he was denied food and was beaten by police officers who were trying to extract a confession from him, and was only released a week later without charge after he was told to sign on some documents written in Sinhalese which he could not read, and due to the beatings he had since suffered chronic pains to his right shoulder.

6.Since then the vilification and discrimination against him by the majority Sinhalese villagers in Alutkuruwa became worse when he was called a “Tiger” referring to the LTTE and other derogatory and humiliating terms, and there were 7 or 8 incidents when he was subjected to physical violence.

7.One evening in 1996, several villagers armed with knives and wooden sticks came to the Applicant’s home threatening to kill him in revenge for the many Sinhalese people being killed by LTTE, but the Applicant managed to make his escape through the back door and went into hiding until those villagers had left.

8.From that day on the Applicant would go to work real early in the morning and to return home only through the back door after 11 pm at night away from the crowd or attention to avoid further threats.

9.Still the threats and intimidations persisted when the villagers would throw stones at his house when passing through, and when he ran into them on the streets, those villagers would yell at him as “Tiger”, grabbed and beat him and took his money.

10.One day in late 1999 his wife was shock to receive an anonymous letter threatening to kill her and the family if the Applicant did not leave the village. Fearing for his life and his family, the Applicant decided to leave the country on a passport with a different identity provided by his agents to avoid security check upon departure, and arrived in Hong Kong on 24 December 1999.

11.However, shortly thereafter he lost his passport, and upon receiving news that his wife and daughter had fallen seriously sick, he decided to return to Sri Lanka, and so he obtained another passport with another identity, but when he tried to depart at the airport on 24 November 2000, he was stopped and detained by the Immigration Department on suspicion of using a fake passport, for which he was subsequently convicted and sentenced to prison for 4 months, and was thereafter repatriated to Sri Lanka on 13 February 2001.

12.Upon arriving at the airport in Sri Lanka, the Applicant was detained by the securities and questioned for hours about his trip to Hong Kong and his repatriation, and was then handed over to the Criminal Investigation Department (“CID”) for further interrogations, but was eventually released after his wife had paid bribes.

13.After returning to his home in Alutkuruwa, the Applicant continued to be discriminated by the Sinhalese villagers for being a Tamil, and had to face extra scrutiny by the police and security officers going through check-points on his way to work every day, and would be dragged to the police station for interrogations every time there was an attack by LTTE in the neighbourhood.

14.One day in mid-2004 the Applicant was arrested by the Army together with some other Tamils and was taken to Negambo Police Station where he was interrogated and beaten on suspicion as a LTTE member, and was eventually released without charge after being made to sign some documents in Sinhalese which he could not read.

15.About 2 weeks after his release, and while he was out at work, a police officer came to his home looking for him, and left a message for him to report to Negambo Police Station, which he did on the following day, but was told by the station officer that there was no arrangement for him to meet any officer and that he should leave, which he did.

16.On the next day however the police came and took the Applicant back to the police station for his explanation as to his failure to attend at the station the day before as told, and was eventually allowed to leave but was required to make regular report to the police, of which the Applicant believed to be police harassments against him.

17.At around the same time in 2004, a Sinhalese neighbour of the Applicant by the name of Jude Fernando became hostile towards him and his family after the Applicant failed to vote for him in the village council election, and after winning the election Jude Fernando became more aggressive against the Applicant by publicly vilifying, insulting and threatening him and his family on various occasions including slapping him on the face and throwing objects at his wife and daughter, causing them to suffer fear and humiliation.

18.On another occasion in July 2006 while waiting for the bus at a bus stop, the Applicant was approached by 3 Sinhalese men who tried to threaten and harass him but eventually left him alone when a police car drove by.

19.Finding himself unable to tolerate such ongoing public vilification, intimidation and discrimination any further, as well as his continued fear of further arrests, detentions and/or persecutions by the police and the authorities as a Tamil with previous arrests for suspected involvement in LTTE, the Applicant in 2006 again departed Sri Lanka for China, and from there he later sneaked into Hong Kong and applied for refugee status at the UNHCR, and after it was rejected and when he was later arrested by police for illegally entering Hong Kong, he raised a torture claim later taken as a non-refoulement claim for protection, for which he completed a Torture Claim Form (“TCF”) on 13 December 2012 and then a Supplementary Claim Form (“SCF”) on 9 May 2014, and attended several screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s Decision

20.By a Notice of Decision dated 17 November 2014 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 (“HKBCR”) (“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”).

21.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of his claimed risks of harm arising from vilification and/or discrimination due to his Tamil ethnicity and as an unsuccessful protection seeker upon his return to Sri Lanka as low due to the low intensity and frequency of such past ill-treatments as alleged, that he had not been arrested or harassed by the police or authorities again since the last incident in 2004 up to the time when he left the country again in 2006 which indicated just a small future risk of harm from them upon his return to Sri Lanka, that reliable and objective Country of Origin Information (“COI”) show that since the defeat of the LTTE insurgency in 2009 by the Sri Lankan government that brought an end to the civil war that the level of risk of him being arrested by the police or the authorities upon his return to Sri Lanka as a failed asylum seeker is assessed as low, and that reasonable internal relocation alternatives are also 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for Sinhalese such as Jude Fernando to locate him.

Appeal to Board

22.On 1 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 26 and 28 October 2015 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 by his lawyer on his behalf. On 17 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

23.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to threats and vilifications from his Sinhalese neighbour Jude Fernando that it doubted his claim that Jude Fernando posed any threat to his safety upon his return to Sri Lanka, while any problems that he had with the Sinhalese community were mainly confined to his home district and were nothing serious considering the level of harm required to entitle him to protection, and that being a Tamil suspected to be a LTTE member in his case in just 2 incidents and since 2004 had not been arrested or questioned about any further incidents by the authorities that there is no justification in his such claimed fear of harm or persecution from the police or authorities, while relevant COI show that the Applicant does not fall within any of the categories of failed asylum seeking returnees which would put him at risk of ill-treatment as suspected LTTE member upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds.

Application for Judicial Review

24.On 19 June 2017 the Applicant with Legal Aid filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge as listed in paragraph 28 below.

Director’s Further Decision

25.Meanwhile on 29 March 2017 the Director on his own initiative invited the Applicant to submit additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) being violated upon his return to Sri Lanka, and upon receiving additional information and further submissions from his lawyer, the Director by a Notice of Further Decision dated 6 October 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 Risk being violated upon his return to Sri Lanka.

Appeal to Board of 2^nd Decision

26.On 16 October 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and as a result his leave application for judicial review of the Director’s earlier decision was adjourned by Deputy High Court Judge Woodcock on 6 December 2017 pending his appeal to the Board against the Director’s Further Decision, and for which he attended another oral hearing on 22 October 2020 with his lawyer from DLS before a different Adjudicator after the first Adjudicator had finished his term on the Board, and during the hearing the Applicant gave further oral evidence and answered questions raised of his claim by this second Adjudicator for the Board and with further submissions made on his behalf by his lawyer. On 16 December 2020 his appeal was also dismissed by the Board which confirmed the Director’s Further Decision.

27.In this decision the Board found no reliable evidence that the Applicant had suffered ill-treatment, physically or mentally, of certain severity or gravity, or of any risk of prosecution or punishment that would give rise to anything approaching the level of intense physical or mental suffering or humiliation to constitute cruel, inhuman or degrading treatment, or of any substantial grounds for believing that the Applicant would face a real risk of arbitrary deprivation of his life that his claim for protection from refoulement also failed under BOR 2 ground.

Grounds of Review of the Board’s Decisions

28.The Applicant whereupon applied for his Legal Aid to be extended to include his intended challenge also of this Second Decision of the Board, and subsequently with leave of this Court he amended his Form 86 to include such application, and accordingly put forward the following grounds for his intended challenge of the respective decisions of the Board:

The Board’s 1^st Decision

(1)  Flawed assessment of persecution risk;

(2)  Irrational findings based on conjecture and speculation;

(3)  Failure to investigate/take into account of relevant COI;

(4)  Failure to adequately assess the availability of internal relocation.

The Board’s 2^nd Decision

(5)  Failure to apply the correct test for BOR 2 claim;

(6)  Credibility and factual findings based on speculation;

(7)  Irrelevant considerations taken into account in assessing internal relocation.

Delay and Extension of Time

29.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date 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.

30.As the last day of the 3 month-period for him to file his Form 86 as regard the 1^st Decision of the Board fell on 17 May 2017, the Applicant was therefore just 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.

31.In the Applicant’s case, a delay of just over one month cannot be regarded as insignificant, for which he did not provide any explanation in his Form 86 or supporting affirmations, but the record shows that prior to formally filing his Form 86, the Applicant did on 22 May 2017 by way of an ex parte summons apply for an order for non-disclosure of his identity in his intended application, and that it was only after obtaining such order that the Applicant formally filed his Form 86 which accounted for the main reason for his delay.

Merits of Intended Application Regarding 1^st Decision

32.As such, and given the relatively insubstantial delay with the filing of the Form 86, I propose to focus on the merits of his intended application by proceeding to consider his listed grounds for his intended challenge of both decisions of the Board, starting with the 1^st Decision of which Mr Tim Parker, assigned counsel for the Applicant, submits that the Board wrongly took a global view of the Applicant’s claim which significantly coloured its approach to the evaluation of the evidence, and also highly contributed to it misapplying the legal test for inter alia persecution test, with no attempt to separately consider the respective risks of torture, persecution and/or cruel treatments contrary to BOR 3 despite their differences in legal criteria, and instead just concluded and determined the Applicant’s account according to a vague, all-encompassing notion of “risk of harm” without reference to the established legal criteria for protection.

33.In its decision the Board did conduct separate analysis of and make its findings on what it categorized as various sources of risks claimed by the Applicant as follows:

(a)  Future Risk of harm from Jude Fernando ([34] – [38]);

(b)  Future Risk of Harm from Discrimination and Vilification ([39] – [42]);

(c)  Risk from Police and Authorities ([43] – 46]);

(d)  Risk of Harm as Returnee ([47] – [50]).

34.While the Board rejected the claimed risk under the first category based on its findings as to the credibility of the Applicant’s account of the conduct of Jude Fernando as being in serious doubt, it did not appear to have rejected the credibility of his accounts of the other 3 categories of risk of harm, and rejected them as unlikely in terms of probability, in that the risk of harm from discrimination and vilification was mainly confined to the local area where the Applicant lived ([41] of Decision), that there is no basis for his fear of risk from police or the authorities as he had never been formally charged with any offence for being a member of LTTE and had been left alone for a long time that there is no basis for him to fear that he would still perceived as a LTTE member or as someone targeted by the police or authorities for torture for the purpose of obtaining information about LTTE or for other reasons ([45] of Decision), and that the risk of harm due to his status as a failed asylum seeker can be assessed from his past experience and the current situation as shown in various COI that he is not within those categories of people such as journalist, social activists, LTTE members or human traffickers which would otherwise put him at risk, and hence it is just his own speculation that he would be at such risk upon his return to Sri Lanka.

35.The Board then arrived at a conclusion based on what it termed as a global view of the sum total of the level of risks generated from each of those sources that resulted in a low level of aggregate risk of harm to which the Applicant would not be entitled to protection, as it elaborated as follows:

“51. The risk stemming from each of the various factors as discussed above are strictly speaking independent of each other. If each of the risks can be expressed in terms of mathematical probabilities the resultant probabilities should be the sum total of those probabilities. It is not possible or proper to put a figure on the probability of the risk of harm from each source or factor. There is no scientific method to work it out. The proper approach is to take a global view of all factors bearing in mind that the aggregate risk from those sources are higher than the individual risk generated from each of those sources and therefore the sum total of the levels of risks might result in an aggregate risk of harm entitling the Appellant to protection. Using this approach in assessing the risk, the risk of harm that the Appellant may face is still of very low level. For this reason alone, the claim for non-refoulement fails on all three grounds.

52. The claim for non-refoulement protection fails on all grounds, the appeal/petition is dismissed and the decision of the Director dated 17 November 2014 is affirmed.”

36.It appears however from the decision that Adjudicator never made any consideration of each of those sources of risk claimed by the Applicant under any of the applicable grounds before arriving at such conclusion based on what Mr Parker submits to be an unsound approach, and notwithstanding that Adjudicators as decision-makers are in fact required to do so in their determination of non-refoulement claims by The Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (‘Petition Guide’),4^th Edition, 12 September 2016, at paragraph 21 which stated:

“21.1 In determining whether a claim is substantiated and hence non-refoulement protection is to be granted to the petitioner, the Adjudicator must, having regard to the individual circumstances of each case, take into account all relevant considerations, including relevant country information and whether there is any region within the Risk State(s) in which the petitioner would not be subjected to a risk under any applicable grounds (other than torture risk). [cf. s 37ZI (5)]

21.2 A non-refoulement claim must be accepted as substantiated if there are substantial grounds for believing that there is a genuine and personal risk that an absolute and non-derogable right under the HKBOR (including BOR 2 and BOR 3) of the petitioner would be violated at the Risk State if the petitioner were removed or surrendered there.

21.3 A non-refoulement claim should be accepted as substantiated on the ground of persecution risk if the petitioner has a well-founded fear of being persecuted in the manner explained in paragraph 6.4 above if the petitioner were removed or surrendered to the Risk State, and he does not fall within any exceptions to persecution non-refoulement protection taking into account relevant considerations including those set out in paragraph 6.5 above.

21.4 A non-refoulement claim should otherwise be rejected if all applicable grounds are not substantiated.”

37.Given the Broad’s decision to take such a ‘global view’ approach as noted above of the Applicant’s claim as an encompassing notion of ‘risk of harm’, I agree with Mr Parker that it is reasonably arguable that such an approach could have significantly affected or coloured its approach to the assessment of the evidence and its application of the legal test for inter alia persecution risk, and for which it also failed to make separate consideration under each of the 3 mentioned applicable grounds when their legal tests or criteria are obviously not the same or similar, and as it was clearly required of the Adjudicator as decision-maker to do so in the determination of the Applicant’s claim under all the applicable grounds.

38.In the premise, and for the reasons given, I am satisfied that those 4 proposed grounds of the Applicant, which are essentially flawed assessments of persecution risk and availability of internal relocation based on conjecture and speculation, and failure to investigate the relevant COI, have been shown to be reasonably arguable for the intended challenge of the 1^st Decision of the Board, and of which will be more substantively dealt with at the inter partes hearing.

Intended Challenge of 2^nd Decision

39.The Board’s 2^nd Decision was as noted above rendered by a different Adjudicator to only determine the Applicant’s claim under BOR 2 Risk, in which every human being has the inherent right to life which shall be protected by law, and that no one shall be arbitrarily deprived of their life as provided under article 6 of the International Covenant on Civil and Political Rights, and the equivalent to BOR 2, for which the Applicant made the same case as he did before the Director as noted in the Director’s Further Decision, and as set out in his written submissions for his appeal before the Board (AB2/14/371-372):

“13. The Appellant’s risk of harm under BOR 2 arises from his fear of being targeted by the State due to, inter alia, the following personal factors: -

a) as a male of Tamil ethnicity;

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

c) due to his previous arrests, detention and/or torture and/or serious ill-treatment by the Sri Lankan Army and Police as well as previous monitoring by the police including visits to his home and workplace;

d) his illegal departure from Sri Lanka in 2006 and/or suspected or perceived departure via an LTTE human smuggling operation;

e) his failure to report to police as per the conditions of his release from detention in 2004;

f) his previous use of false passport and the record of his previous deportation in 2001 and/or information regarding him entered on computer records by CID and/or immigration authorities in Sri Lanka in 2001;

g) as a failed asylum seeker/non-refoulement claimant and/or due to his absence from Sri Lanka for over 10 years.”

40.Mr Parker for the Applicant submits that after examining the Applicant’s account of events for BOR 2 Risk, this Adjudicator went further to consider various other possible grounds by proceeding to examine whether the Applicant would be at risk of suffering irreparable harm if returned to Sri Lanka (see [78] – [79] of 2^nd Decision), and also made findings on the Applicant’s credibility, concluding some aspects of his account were plausible but others were not, and assumed that relocation elsewhere in Sri Lanka away from Aluthkuwura was possible and practical, and drew adverse inferences against him as he did not leave the place for his own protection.

41.Upon considering the evidence and the COI, the Board did not accept that the Applicant will be arrested and detained by the local police if deported to Sri Lanka or that his previous arrests would increase the degree of risk that he faces, or that he will not be able to receive what amounts to a reasonably fair trial in Sri Lanka ([92] of Decision), and arrived at the following conclusion:

“104. I do not accept that the Petitioner will face risk of irreparable harm if he is refouled to Sri Lanka.

105. The Petitioner last departed Sri Lanka in 2006. After his departure, the civil war ended in 2009. I do not accept that: (a) the current situation in Sri Lanka is worse than before; and (b) because he departed Sri Lanka illegally he would be arrested and prosecuted upon return to Sri Lanka. According to the GJ case and the COI, the primary objective of the local government authority is to prevent resurgence of LTTE activities. Bearing in mind a huge number of Tamils left Sri Lanka illegally during the civil war era and thereafter, I do not accept that every such returnee will be arrested and prosecuted. Moreover, the Petitioner departed Sri Lanka in 1999 (illegally on a forged passport) and was refouled in 2001 but he had not been prosecuted.

106. As discussed, I do not accept that the harassments that he encountered from the general public and JF reached the high threshold to amount to persecution or torture. Even assuming JF indeed was a government official, there is no evidence showing that his conduct was condoned by the local authority, or represented the official stance of the local government.

107. In cases where the State is the source of risk of harm, internal relocation is not an option. In the present case, I do not accept that the Petitioner faces risk of persecution from the State or State actors. The question of internal relocation does not arise. However, if it is necessary to consider the issue of internal relocation, the principles of the issue of Internal Relocation Alternative were thoroughly canvassed by the House of Lords in Januzi. For the sake of completeness, internal relocation alternatives are discussed below.

108. The Petitioner asserted that being a Tamil who had been previously suspected a LTTE member, he would be adversely targeted by the local authority. However, the COI in Schedules 3 and 4 indicate that circumstances have changed after the end of the civil war.

…

110. In short, the Petitioner is an able-bodied Sri Lankan male national of Tamil ethnicity with several years of education and substantial general work experience. It is reasonable or not unduly harsh for the Petitioner to reside and work anywhere within Sri Lanka, especially Colombo and Negombo, and his home district Badulla.

111. There is no reliable evidence that: (a) the Petitioner had suffered ill-treatment, physical or mentally, of certain severity or gravity; and (b) the risk of prosecution and punishment in the present case gives rise to anything approaching the level of intense physical or mental suffering or humiliation necessary to constitute cruel, inhuman or degrading treatment.

112. The Petitioner has not shown substantial grounds for believing that he faces a real risk of arbitrary deprivation of life. The evidence adduced by the Petitioner discloses no substantial grounds for so believing. I find that his claim for protection from refoulement under BOR 2 fails.”

42.Mr Parker submits for the Applicant that the Board applied the wrong legal test for BOR 2 Risk in its consideration of that issue by stating that the Applicant had to demonstrate that there is a genuine, real and personal risk of irreparable harm in Sri Lanka which is wrong in law, as the correct test under BOR is whether there is a real risk that the Applicant would be arbitrarily deprived of his life if he was returned, and that there is no further or separate requirement to demonstrate “irreparable harm”.

43.Mr Parker further submits that the correct test in the Applicant’s stated case in his appeal before the Board as noted above in [39] is whether there is a real risk of him facing proceedings in Sri Lanka amounting to a “flagrant denial of justice” if he is sent back to Sri Lanka as a failed Tamil asylum seeker and given his past arrests and detentions as a suspected LTTE member, that such risk of being denied the right to a fair trial can itself form a standalone ground for granting non-refoulement protection, where the correct test is whether there is a real risk of the person facing proceedings in the receiving State amounting to a “flagrant denial of justice”, as held by the European Court of Human Rights in the case of Othman v United Kingdom (2012) 55 EHRR 1:

“258. It is established in the Court’s case law that an issue might exceptionally be raised under art.6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country. That principle was first set out in Soering v United Kingdom and has been subsequently confirmed by the Court in a number of cases.

259. In the Court’s case law, the term “flagrant denial of justice” has been synonymous with a trial which is manifestly contrary to the provisions of art.6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included:

- conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge;

- a trial which is summary in nature and conducted with a total disregard for the rights of the defence;

- detention without any access to an independent and impartial tribunal to have the legality the detention reviewed;

- deliberate and systematic refusal of access to a lawyer, especially for an individual detained in a foreign country.”

44.In that case the applicant was convicted in his absence in Jordan of conspiracy to cause explosions based on the statement of his co-defendant obtained through torture, and was sentenced to life imprisonment with hard labour at the conclusion of the trial. In allowing his appeal against the UK Secretary of State’s deportation order, the European Court of Human Rights held that the applicant’s deportation to Jordan would be in violation of art.6 on account of the real risk of the admission at his retrial of evidence obtained by torture of third persons, as such use at his retrial would amount to a flagrant denial of justice to the applicant.

45.While it is true that the Board did not in its decision refer to this test from Othman, it did make the following factual findings in its consideration of the issue of fair trial:

“90. The Petitioner does not possess a valid travel document. In order to deport the Petitioner to Sri Lanka, ImmD had to contact and make arrangement with the local authority. Therefore the local police would know in advance that he would return to Sri Lanka. The Petitioner claimed that he had been interrogated and tortured in 2001 when he was refouled to Sri Lanka. According to COI, returnees to Sri Lanka would be questioned by the police at the airport. It is plausible that the Petitioner in 2001 was questioned by the police who wanted to investigate his association with LTTE. However, there is also COI indicating that returnees would be released after questioning. The civil war ended in 2009. I do not accept the Petitioner’s assertion that the current situation in Sri Lanka is worse than that in 2001.

91. Moreover, the Petitioner’s profile does not fall within any of the 4 risk groups in the GJ case that would be specifically investigated by the local authority. After considering the Petitioner’s evidence and the COI in the round, I do not accept that he will be arrested and detained by the local police if he is deported to Sri Lanka. I also do not accept that his previous arrests would increase the degree of risk that he faces.

92. So far as the question of fair trial is concerned, one has to consider whether, looking at the COI and all evidence in the round, it can be said that the Petitioner will be able to receive what amounts to a reasonably fair trial in Sri Lanka. After considering the COI and all the evidence in the round, I find that the Petitioner’s fear of persecution for being associated with LTTE unfounded. I also find that there is no evidence suggesting that he is personally and adversely targeted by the authorities. Even assuming that previously he had been suspected a LTTE member, the fact that he had never been prosecuted demonstrated that there was no evidence that proved his association with LTTE. I do not accept that his previous arrests and deportation increased his chance of being arrested and prosecuted.”

46.In assessing whether the Othman’s test has been met, the same standard and burden of proof would apply in that it is for the Applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is deported back to Sri Lanka, he would be exposed to a real risk of being subjected to a “flagrant denial of justice”, but given the Board’s findings of no evidence of him being adversely targeted by the authorities or of being arrested and prosecuted based on his own account of past events, let alone to be denied of a fair trial, and as it was said in Othman at [260] that “flagrant denial of justice” is a stringent test of unfairness which goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of art.6, or BOR 2 in the case of the Applicant if occurring within Sri Lanka, as what “is required is a breach of the principles of fair trial guaranteed by art.6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article ([260]), I am not satisfied that those proposed grounds of the Applicant are reasonably arguable for his intended challenge of the 2^nd Decision of the Board.

47.Nevertheless, as noted above that if leave is to be granted to the Applicant to challenge the 1^st Decision of the Board based on his first 4 listed grounds which include issues over assessments of credibility and relevant COI referred to in that decision under Torture Risk, BOR 3 risk and Persecution Risk, I am prepared to hear from the Applicant, and if so also from the Board and the Director, at the substantive inter partes hearing whether as a matter of principle and in fairness that it would be in the circumstances appropriate for BOR 2 risk to be also considered and/or reconsidered given the lapse of time since the 1^st Decision and of any change to the current situation in Sri Lanka regarding LTTE threats on the basis of the latest COI.

48.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s 1^st Decision is reasonably arguable on his 4 listed grounds stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

49.Accordingly, I extend time to his leave application, and grant leave to the Applicant to apply for judicial review of the Board’s 1^st Decision on those listed grounds, and also to hear from the parties where appropriate whether his BOR 2 Risk should also be re-assessed together, and direct that he shall file and issue the 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.

Dated the 17^th day of October 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