Pa v. Torture Claims Appeal Board

HCAL 1104/2020

[2025] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1104 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)   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 5 of the RHC (Cap 4A); and

(3)   The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

(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 42-year-old national of Sri Lanka who entered Hong Kong illegally on 26 May 2006 and made a refugee application to the UNHCR, and after it was rejected, he then on 7 March 2007 raised a torture claim later taken as a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Sri Lanka he would be harmed or killed or persecuted by the Sri Lankan army and authorities and/or by the pro-government paramilitary group People’s Liberation Organization of Tamil Eelam (“PLOTE”) for being suspected to be a member of the anti-government terrorist group Liberation Tigers of Tamil Eelam (“LTTE”) and/or by the LTTE for refusing to join them and/or by their rival paramilitary group The Tamil Eelam Liberation Organization (“TELO”).  He was subsequently released on recognizance pending the determination of his claim.

Factual Background

2.The Applicant was born as a Tamil and raised in Vavuniya, Sri Lanka.  After leaving school he worked as an auto-rickshaw driver to make his living in his home district, and followed his family’s tradition to support PLOTE which was formed by some former members of LTTE due to internal disputes within LTTE which subsequently led to open conflicts between the 2 paramilitary groups, in particularly after PLOTE started to support the Sri Lankan government and sent their members to participate in political elections within the country.

3.The Applicant had 4 uncles, of whom Sivananthan was shot to death in 1985 by the Sri Lankan Army for collecting money for LTTE in Vavuniya, while Balachandran and Karunakaran subsequently became members of PLOTE with the latter being a leader in the area of Poonthotam, while Balachandran won a local election in 2000 and became a parliament member of the Vavuniya District, during which he was under constant threats from LTTE, and in 2004 was forced to resign from PLOTE after suffering from 3 physical attacks.

4.In 2005 his uncle Periyapalan was abducted by unknown men believed to be from the Sri Lankan army, and was later found dead for being suspected to be a LTTE member, and for which the police never made any arrest.

5.As for the Applicant himself, he stopped going to school in 1997 after a bomb exploded in front of the Vivuniya police station, whereupon many of his fellow students were suspected by the police for being involved in making the bomb and were arrested and detained for interrogation, and while the Applicant was never arrested, his parents kept him at home to avoid the police, and later he started to work as an auto rickshaw driver to make his living in his home district.

6.As mass arrests by the police against Tamils continued, and as he feared that he would soon be targeted, the Applicant in 2000 left Sri Lanka for Malaysia where he applied for refugee status to the UNHCR, but before there was any result to his application, he left Malaysia in 2004 to return to Sri Lanka to attend his grandmother’s funeral, and thereafter he resumed working as an auto rickshaw driver to make his living.

7.One day in May 2005 while driving a passenger on his rickshaw the Applicant and his passenger were arrested by the Army in Vavuniya and were taken to the Army Criminal Investigation Department (CID) where the Applicant was detained and interrogated for 4 days as to his relationship with the passenger who was said to be a LTTE member, during which he was hung upside down and beaten with an iron pipe, and was given the torture of waterboarding more than 20 times.

8.On the 4^th day the Applicant was released on bail after his father and lawyer had gone to the Vavuniya Magistracy to apply for his release, and for which he was required to report to the police every 2 weeks and was not allowed to leave his house at night or to leave Vavuniya.

9.One day in August 2005 the Applicant and some of his friends were involved in a mass brawl between members/supporters of PLOTE and LTTE at the Amman Temple during which he was stabbed with knives by LTTE members and suffered injuries to his left arm and chest, and was subsequently hospitalized in a local hospital for 6 days.

10.Upon his discharge from hospital the Applicant was afraid to return to his home and took shelter in his aunt’s place in Thavasi Kulam, but later when he heard that the police were looking for him, the Applicant together with 2 of his friends who were also involved in the incident turned themselves in to the Vavuniya police station where the Applicant was detained and was again beaten with a baton, and was subsequently brought before the Vavuniya Magistracy for the charge of assault and was released on bail on condition of reporting to the police every week.

11.Thereafter his father received threats from the LTTE that they would take revenge against the Applicant, and after one of his cousins was killed by the LTTE people, the Applicant fled to Nuwraeliya to hide in the home of one of his father’s friends for several days before returning to Vavuniya when he thought it was safe to do so.

12.However, one day in late 2005 while on his way home from work, the Applicant was abducted by members of rival military group TELO as a bait to get at his uncle Karunakaran who was then a local leader of POLTE, during which the Applicant was beaten numerous times, and was only released 2 days later through negotiations between leaders of the two groups.

13.Upon his release the Applicant started to receive invitation from LTTE to join their group, but to which he always refused, but one day in late February 2006 he was abducted by the LTTE people who then took him to a forest where they beat him with wooden sticks and by throwing chili powder on his face for refusing to join their group, and it was a day later that he was found by a passing villager who then brought him to a local clinic for medical treatments before he was able to make his way home.

14.The threats from the LTTE however persisted, and after 3 of his former schoolmates were shot dead by the LTTE members for refusing to join them, the Applicant was again approached by the LTTE people to join their group, but still the Applicant continued to ignore them.

15.One day in March 2006 the Applicant drove a passenger carrying a bag on his rickshaw to the Vavuniya Post Office, and shortly after the passenger went into the post office, an explosion occurred inside, and when the army arrived, they arrested everybody nearby including the Applicant and brought them to the Eeraperia Kulam Army Camp for interrogations, during which the Applicant learnt that it was his passenger who was suspected to be a LTTE member for setting off the bomb inside the post office that killed 6 people including several army officers, and that the Applicant who drove the passenger there was therefore suspected to be an accomplice and a LTTE member.

16.The Applicant was detained for 6 days during which he was beaten with batons numerous times by army officers who also threatened to shoot him with their pistols.  Eventually the Applicant was brought before the court for the crime of being a LTTE member involved in the bombing of the post office, but was eventually acquitted by the court after a trial with the help of a lawyer hired by his father.

17.However, despite the acquittal, the army continued to harass the Applicant by stopping him regularly on the streets for questioning and detaining him for interrogations that had affected his work as an auto rickshaw driver to make his living.

18.One day in April 2006 an army officer was shot and killed at a bus terminal in Vavuniya, the army again rounded up people nearby including the Applicant who happened to be passing by on his auto rickshaw and was detained in the Vavuniya Police Station for 6 days during which he was beaten with batons, and was eventually brought before the court when he was released on bail subject to reporting to the police every week.

19.Fearing that he would eventually end up like his cousin to be shot to dead on the streets by the army or the rival military groups LTTE or PLOTE that the Applicant decided to leave the country, and so he stopped making his weekly report to the police, and on 25 May 2006 he left Sri Lanka by bribing an airport official and departed for China, and from there he later sneaked into Hong Kong and made a refugee application to the UNHCR, but while waiting for the result of his application, he was arrested by the police on 8 April 2007 and was subsequently released on recognizance, and after his refugee application was refused by the UNHCR, he then raised his torture claim later taken as a non-refoulement claim for protection to the Immigration Department, for which he completed a Supplementary Claim Form (“SCF”) on 14 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

20.Whilst released on recognizance pending the determination of his claim, the Applicant was informed by his parents in Sri Lanka of the following incidents happened to his siblings and friends in Sri Lanka after he departure, and of which he did subsequently also include with supporting documents in his claim to the Director:

(a)  that his brother Ramprakash was in mid-2006 approached by the Army CID for the Applicant’s whereabouts, and when Ramprakash refused to disclose anything he was subsequently seriously injured by a grenade thrown by a CID officer, and for which his parents had made a complaint to both the Human Rights Commission of Sri Lanka and the UNHCR;

(b)  that in 2009 Ramprakash was abducted by some unknown men in a small village in Vavuniya, for which his parents reported both to the police and the Human Rights Commission of Sri Lanka as well as Deputy Minister Radhakrishnan, and 6 months later the police found his motorbike in Colombo but still no trace of Ramprakash;

(c)  that in March 2009 another brother Mohanaprakash was arrested by police for suspicion of being a LTTE member, and was released after one year without charge;

(d)  that in April 2011 Mohanaprakash was arrested by the Army for being a LTTE supporter and was subsequently detained at Jaffna Prison, and for which his parents had complained to the Deputy Minister, UNHCR and the Human Rights Commissioner of Sri Lanka;

(e)  that in June 2013 his sister while on her way to school was approached by the PLOTE people for the Applicant’s whereabouts, of which his parents made a report to the police, and 2 days later his sister was beaten by the PLOTE people who also damaged her books and bicycle;

(f)  that one of his friends Thanasekaran who had earlier made a non-refoulement claim in Hong Kong, and after his claim was rejected and upon his refoulement to Sri Lanka in 2013, he was arrested by the PLOTE people at the airport and was interrogated and tortured, and upon his subsequent release and return to his home in Vavuniya, he was arrested by CID officers for interrogation, and although he was subsequently released by the court, Thanasekaran was so fearful for his life that he later departed Sri Lanka for Malaysia;

(g)  that it is believed that the Army CID is still looking for the Applicant and that he would be arrested right away upon his return to Sri Lanka.

Non-refoulement Claim to Director of Immigration

21.By a Notice of Decision dated 30 October 2014 and a Notice of Further Decision dated 4 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), 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”).

22.In his decisions 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 from the Sri Lankan authorities, LTTE, PLOTE and/or TELO upon his return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from them, that LTTE had been defeated in 2009 that there is no evidence or reason for the Sri Lankan authorities to still have any adverse interest in the Applicant after all these years since he left the country, that in any event his past problems with LTTE or PLOTE or TELO were private personal matters without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that in Sri Lanka constitutional safeguards are available to its citizens relating to arrest and detention for which they must be brought before the court by due process, while 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 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 areas of the country away from his home district in large cities where it would be difficult if not impossible for those LTTE, PLOTE or TELO people to locate him.

Appeal to the Torture Claims Appeal Board

23.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 11 November 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 on his behalf by his lawyer. On 20 March 2020 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

24.In its decision the Board did not take any real issue with the Applicant’s account of events that occurred to him and his family prior to his departure of Sri Lanka in 2006 when the LTTE was still active that the Army CID were suspicious of him being an LTTE member and that after he left the country that they still went to his house asking for his whereabouts, and that their interest in him was probably due to the fact that he was the driver of the LTTE member who exploded the bomb in the post office that killed 2 CID officers, but as the Applicant had in fact never been an LTTE member that he should have no fear of being interrogated or charged by the police, and as the LTTE was defeated by the Sri Lankan government in May 2009 that there is no reason to believe that the police or the authorities would still be interested in him or that he should have anything to fear even if he were to be questioned by the police on his return to Sri Lanka, as the police force of any country is a disciplined force and would not prosecute or persecute any person without there being any evidence against that person that the Applicant’s fear that the Sri Lankan government would still be interested in him is unfounded, and concluded that his claim for non-refoulement protection failed on all applicable grounds.

Application for Judicial Review

25.On 4 June 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds as subsequently amended for his intended challenge:

(1) Error of Law – That the Adjudicator applied the wrong legal test when assessing the Applicant’s claim under BOR 2 risk and erroneously limited the scope of that ground to situations where the state itself is responsible for unlawful killing by the imposition of capital punishment;

(2) Error of Law – Failure to assess risk based on imputed political opinion including support for and/or membership in the LTTE and/or involvement in LTTE terrorist activities due to the Applicant’s Tamil ethnicity and/or membership in a particular social group as a Tamil male from Northern Sri Lanka and/or failed asylum seeker who has been outside Sri Lanka for an extended period of time and/or having failed to comply with bail conditions and/or association with family members suspected of LTTE involvement;

(3) Error of Fact/Irrationality – Erroneous findings of lack of physical harm or torture against the Applicant despite the fact that the Board never made any adverse credibility findings against the Applicant in its assessment of evidence and therefore by indication that his account of repeated instances of physical attacks and torture by the Sri Lankan army and members of LTTE and/or PLOTE were apparently accepted by the Board;

(4) Irrationality/Inadequate Reasons – Erroneous assessments of the Applicant’s evidence and future risk of harm and acted irrationally by failing to apply any COI and making unqualified positive conclusions about country conditions in Sri Lanka which were unsupported by COI and/or making findings of facts which were unsupported in evidence and informed by the Adjudicator’s own unfounded assumptions and speculations.

26.Before proceeding to consider these grounds and the submissions put forward by Ms Denise Souza, Counsel for the Applicant, it would be relevant to first set out the relatively brief findings made by the Board of the Applicant’s claim in its decision under the sub-title of “Strength of The Appellant’s Case”:

“Strength of The Appellant’s Case

25. The Appellant has been in Hong Kong since May 2006, more than 13 years ago. The last time the Appellant had contact with his family was in December 2012 when his parents told him that the army was still looking for him and it was not safe for him to return home. That was more than 6 years ago. The Appellant’s evidence was that the Sri Lankan CID went to his house and asked for his whereabouts. They also asked for the whereabouts of the Appellant’s younger brothers and asked the Appellant’s family if any of them had come back to Sri Lanka. The Appellant said that the army was interested to find LTTE members. However the Appellant’s evidence was that in May 2009 more than 10 years ago, the government made an announcement that they had defeated the LTTE. The army was apparently more concerned about the movements of Tamil people before the LTTE was defeated. Now that the LTTE has been defeated, my view is that the government’s interest in finding out the activities of Tamil people living in Sri Lanka is by now much diminished. When the Appellant was on one occasion arrested and interrogated by the police after a bomb blast killed 2 CID officers, that was before the defeat of the LTTE in 2009.

26. When the Appellant left Sri Lanka and went to Malaysia in the year 2000, the LTTE had not yet been defeated. When the Appellant left Sri Lanka for Hong Kong in 2006, the LTTE was still active, hence the CID of the army made the allegation to the Appellant that he was suspected to be an LTTE member. That explains why when the Appellant left Sri Lanka in the year 2000 and went to Malaysia, the CID of Sri Lanka went to the Appellant’s house and asked for his whereabouts. The Appellant said that the last time the CID went to his house and asked for his whereabouts was in June 2015. Their interest in the Appellant was probably due to the fact that he was a cab driver and when 2 CID officers were killed he was arrested and interrogated. The Appellant has never been an LTTE member and so if he were to return to Sri Lanka, he would have no fear about being interrogated and charged by the police. His younger brothers were also not members of the LTTE. His third younger brother was arrested and interrogated by the police but was subsequently released.

27. The Appellant alleges that in the year 2009 his younger brother was abducted and never seen again. However there is no evidence whatsoever of who had abducted him.

28. The Appellant’s evidence that he believed the government is still interested in him is pure speculation.  He alleged that recently they went to his parents’ home and asked about his whereabouts.  In my view, that is not evidence that the authorities still believe that he was an active LTTE member.  The Appellant has been out of Sri Lanka since May 2006, more than 13 years ago.  The LTTE was defeated by the government in May 2009.  There is no reason to believe that the police would still be interested in the Appellant.  He was not an LTTE member.  Even if he were to be questioned by the police on his return to Sri Lanka, he should have nothing to fear.  The police force of any country is a disciplined force and would not prosecute or persecute any person without there being any evidence against that person.  My view is that the Appellant’s belief that the government would still be interested in him is unfounded and he should have no fear about being questioned by the authorities.”

27.On the basis of such findings the Board proceeded to reject the Applicant’s claim on all the applicable grounds (see [29] – [38] of the Decision).

28.In its decision as noted above that the Board did not take any issue with the Applicant’s account of events said to have occurred to him and his family prior to his departure of Sri Lanka and thereafter, and hence it is clear that the Board rejected his claims essentially on the basis that LTTE was defeated by the Sri Lankan government in May 2009 that there is therefore no reason for the authorities to still have any adverse interest in the Applicant after all these years, but without any consideration or regard for the post-LTTE policies and actions taken by the Sri Lankan government on certain categories of persons at risk of persecution on return to Sri Lanka, upon which the Applicant had based his claim for non-refoulement protection in his representations to the Director (see [7.97] of Director’s decision), and as evidenced by the relevant COI submitted by him in support of his claim (see [9] of Director’s decision), of which the Director had properly identified in [25] of his decision as follow:

“You said that the PLOTE was assigned to investigate all arriving Tamils in the airport. You claimed that Thanasekaran Prakash was arrested in 2013 by the PLOTE upon return at the airport of Sri Lanka. He was interrogated and tortured by the PLOTE. He was then released and returned to his home town in Vavuniya. He was arrested by CID officer again. He was subsequently brought before the court and released by the court finally. You have submitted 55 supporting documents (Item 13 to Item 67 in Paragraphs 8.2 to 8.8 above) for the purpose to describe and reflect the situation in Sri Lanka. The general human rights situation in Sri Lanka has been considered in the above 55 supporting documents. However, the experience of Thanasekaran Prakash and the above 55 supporting documents do not help establish your personal risk. It is stated in GJ and Others (post-civil war: returnees) Sri Lanka CG v. Secretary of State for the Home Department (Immigration and Asylum Chamber) on 3 July 2013, “Arrangements at the airport have been improved. No arriving passengers are subjected to ill‑treatment at the airport, the authorities being very well aware of the allegations levelled against them in the past. Returnees were interviewed by the Department of Immigration and Emigration (Colombo) (“DIE”) and State Intelligence Service (“SIS”) at the airport, their onward details taken, and permitted to proceed, unless there was a “stop” notice indicating a court order or arrest warrant against them.” The same determination also states that “The court order or arrest warrant against them.” The same determination also states that “The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilize the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organization and (b) the revival of the civil war within Sri Lanka.” This indicates that only those who are working for Tamil separatism and to destabilise the unitary Sri Lankan state are the target of the government. The same determination also lists out the current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, as the followings:

(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka;

(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government;

(c) Individuals who have given evidence in the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses;

(d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.”

29.The Director’s decision together with all those supporting documents and COI submitted for the Applicant’s claim and listed in the decision were available in the hearing bundle for his appeal before the Board, and for the grounds of his appeal, the Applicant also set out in his Notice of Appeal the following bases for his claimed risk of harm from the Sri Lankan authorities (BD2/34/338-340):

“7. The Claimant faces a real and personal risk of harm on one (1) or more applicable grounds due to the following factors:-

a) perceived/imputed political opinion against the current Government of Sri Lanka (“GOSL”);

b) perceived membership in/support for and/or cadre of LTTE;

c) as a victim of human rights violations and/or as a family member of victims (Claimant’s parents on behalf of Claimant’s brothers) seeking justice

The above factors were (among other factors) considered applicable in assessing asylum claims pursuant to the UNHCR Guidelines issued on 21 December 2012 and continue to be applicable in screening non-refoulement claims in numerous common law jurisdictions.

Reference: UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04, available at: http://www.refworld.org/docid/50d1a08e2.html

8. The Appellant faces a real and personal risk of harm on one (1) or more applicable grounds, including torture, CIDTP and/or persecution due to his membership in a particular social group, race and/or imputed or perceived political opinion, due to the following factors:-

a) Tamil ethnicity;

b) suspected LTTE supporter and/or member and/or cadre of LTTE;

c) fail to comply with bail conditions/reporting requirements and/or absconding

d) presence of scarring; and/or

e) having made an asylum claim abroad

The above factors were (among other factors) considered applicable in assessing asylum claims in the UK Country Guidance cases of LP and TK and were further considered by the Court of Appeal in ST v BETTY KWAN and SECRETARY FOR SECURITY; DIRECTOR OF IMMIGRATION (Interested Party) [CACV 115/2013, decision on 26 June 2014] §60 – 76.

9. UK Country Guidance in GJ & Ors has replaced earlier country guidance in the UK and narrows the risk profile categories to:-

“(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka …”

10. The Appellant further faces a real and personal risk of harm within categories (a) as a person perceived to be a threat to the integrity of Sri Lanka due to, inter alia, his perceived involvement in post-conflict Tamil separatism during his time outside Sri Lanka and/or his or his family’s real or imputed involvement with LTTE; and/or (d) due to his family’s complaints to the UNHCR and/or Human Rights Commission of Sri Lanka.”

30.Hence it is clear from the above that the Applicant’s claim before the Board on the bases of being a Tamil both individually and from a family suspected to be LTTE supporters in the past and who had left the country in abscond of his bail conditions and had applied for asylum abroad, all of which his counsel Ms Souza submits squarely put his claim as one that engaged a well-founded fear of persecution on the Convention grounds of imputed political opinion and/or membership of a particular social group, as expressly identified in his skeleton submissions before the Board (see BD2/39/384-385), but which the Board failed to consider at all, or simply brushed aside on the basis that LTTE has since been defeated that the Applicant would no longer be of any interest to the Sri Lankan government or authorities given the lapse of time since his departure from the country, notwithstanding the fact that, as seen from the Country Guidance revised by the UK Upper Tribunal in the case of GJ & Ors (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC), and as noted above referred to by both the Director in his decision and in the Applicant’s submissions for his appeal before the Board, that the accepted approach for assessing the risk to Tamil returnees such as the Applicant must include a consideration of whether he would be perceived to be involved in any Tamil separatist movements and/or critical of the government and its human rights record, or otherwise on the computerised ‘stop’ list at the airport, but that the Board simply failed to consider the Applicant’s claim on such bases, and also failed to apply the applicable Country Guidance or any relevant COI at all in its consideration.

31.Ms Souza further submits that the Board’s failings were compounded by its erroneous view that the Applicant’s claims could only be established by demonstrating that he was in fact an LTTE member (see [26] of Board’s decision), thereby failing to consider whether he would be targeted on the basis of imputed or perceived political opinions or associations as he was while in Sri Lanka.

Analysis and Consideration

32.The principle that an individual may be at risk of persecution on the grounds of imputed opinion even if he or she does not in fact have any political beliefs was first observed by Professor James Hathaway in The Law of Refugee Status (1991), and was considered by the UK Supreme Court in RT (Zimbabwe) & Ors [2012] UKSC 38 when Lord Dyson stated for the Court as follows:

“53. The principle is not in doubt that an individual may be at risk of persecution on the grounds of imputed opinion and that it is nothing to the point that he does not in fact hold that opinion. Professor Hathaway, The Law of Refugee Status (1991), pp 155-156 states:

“The focus is always to be the existence of a de facto political attribution by the state of origin, notwithstanding the objective unimportance of the claimant’s political acts, her own inability to characterise her action as flowing from a particular political ideology, or even an explicit disavowal of the views ascribed to her by the state.”

54. In Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, the UNHCR summarised the relevant law well at para 25:

“It is now generally agreed that imputed or perceived grounds, or mere political neutrality, can form the basis of a refugee claim.  For example, a person may not in fact hold any political opinion, or adhere to any particular religion, but may be perceived by the persecutor as holding such an opinion or being a member of a certain religion.  In such cases, the imputation or perception which is enough to make the person liable to a risk of persecution is likewise, for that reason, enough to fulfil the Convention ground requirement, because it is the perspective of the persecutor which is determinative in this respect.”

55. The application of this principle in any given case raises questions of fact. Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime (or its agents) as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his political neutrality (and therefore his actual lack of support for the regime) would be discovered. It is well established that the asylum seeker has to do no more than prove that he has a well-founded fear that there is a “real and substantial risk” or a “reasonable degree of likelihood” of persecution for a Convention reason: R v Secretary of State for the Home Department, Ex p Sivakumaran [1988] AC 958. I do not believe that any of this is controversial. …”

33.His Lordship then proceeded to elaborate as to how the principle applied on the factual basis of RT by raising 2 questions which the immigration judge would have to consider: Whether there is a real and substantial risk that those applicants would be stopped and interrogated upon returning to Zimbabwe, and whether their pretended support of the regime would be disbelieved:

“56. The issue that is common to all these cases as regards imputed belief is whether there is a real and substantial risk that the political neutrality of the claimants would be discovered by the militia gangs and War Veterans who man road blocks even if the claimants were to dissemble and say that they support the regime. This raises two questions namely (i) whether the claimants would be likely to be stopped or face serious interrogation at road blocks at all; and (ii) if yes, whether their pretended support for the regime would be disbelieved.

57. As regards the first question, the best evidence as to the likelihood of being stopped and interrogated at a road block is provided by RN. The AIT’s decision states that the militia groups and War Veterans operate in “rural areas” and “urban districts” (para 213) and “across the country” (para 216). The risk of persecution “arises throughout the country” (para 225) and people living in “high density urban areas” face the same risk from militias and War Veterans as those living in rural areas (para 228). But those living in more affluent low density urban areas or suburbs are likely to avoid such difficulties (para 229). If a failed asylum seeker is associated with the regime or “is otherwise a person who would be returning to a milieu where loyalty to the regime is assumed,” he will not be at risk simply because he spent time in the United Kingdom and sought to extend his stay by making a false asylum claim (para 230). In other words, it is only if an applicant returns to a milieu where loyalty to the regime is assumed that his claims is likely to fail at the first hurdle.

58. As for the second question, the immigration judge would have to consider the kind of questions that the applicant might be asked when interrogated at the road block; how effective a liar the applicant would be when asserting loyalty to the regime; how credulous the interrogators would be in the face of such lies; whether the interrogators might ask the applicant to produce a Zanu-PF card or sing the latest Zanu-PF campaign songs and whether the applicant would be able to produce a card and sing the songs. It is difficult to see how a judge could provide confident answers to these questions. He or she would almost certainly be unable to avoid concluding that there would be a real and substantial risk that, if a politically neutral claimant were untruthfully to assert loyalty to the regime, his political neutrality would be discovered.

59. To summarise, in the light of RN, it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to a milieu where political loyalty would be assumed and where, if he was interrogated at all, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country.  If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved.”  

34.In the case of an asylum seeker such as the Applicant on returning to Sri Lanka, as referred to above and cited in the Director’s decision, the UK Upper Tribunal in GJ observed that since the civil war ended in May 2009 in Sri Lanka, its government has changed its focus significantly to preventing the resurgence of the LTTE or similar Tamil separatist organizations or the revival of the civil war within the country that there remains a real risk of individuals being detained by its security forces facing ill-treatment or harm or persecution which require international protection that it was necessary to reframe the risk analysis for the present political situation in Sri Lanka to give the following new country guidance:

“Country guidance

355. As already stated, while the December 2012 UNHCR guidance has assisted us in reaching the conclusions on country guidance which we now set out, we have not heard evidence on all of the categories identified in the guidance and we have heard evidence from a very wide range of experts with knowledge of conditions today in Sri Lanka. Professor Good and Dr Smith were both asked to comment on whether the LP/TK factor continued to be of relevance. Each of them said that they were, but offered a list of more current suggestions in addition.

356. Having considered and renewed all the evidence, including, the latest UNHCR guidance, we consider that the change in the GOSL’s approach is so significant that it is preferable to reframe the risk analysis for the present situation in Sri Lanka. We give the following country guidance:

(1) This determination replaces all existing country guidance on Sri Lanka.

(2) The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.

(3) The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the “violation of territorial integrity” of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.

(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.

(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.

(6) There are no detention facilities at the airport. Only those whose names appear on a “stop” list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.

(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:

(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.

(d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.

(9) The authorities maintain a computerised intelligence-led “watch” list. A person whose name appears on a “watch” list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.

(10) Consideration must always be given to whether, in the light of an individual’s activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the ‘Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, published by UNHCR on 21 December 2012.”

35.Of the LP/TK risk factors referred to in [355] of the GJ decision cited above, and identified as being likely to raise official interest in returnees from abroad, in particularly Tamil failed asylum seekers, that it would be appropriate to note their relevancy and evolvement due to the change of the Sri Lankan government’s focus and policies since the end of the civil war in May 2009 to the current situation, as elaborated by the Upper Tribunal at the commencement of its decision:

“5. The appeals were identified as suitable for country guidance in relation to the present situation in Sri Lanka. The most recent Sri Lanka country guidance is that of the Asylum and Immigration Tribunal in TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 based on materials up to and including 26 October 2009, just five months after the civil war ended in May 2009. The guidance in TK updated and incorporated country guidance given by the AIT in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, No 25904/07 [2011] ECHR 1272, and more recently in E.C. v. The United Kingdom – 41178/08 [2011] ECHR 846.

6. The civil war in Sri Lanka ended on 19 May 2009 after more than 25 years of conflict, involving tens of thousands of deaths and casualties and serious damage to the infrastructure in the Northern and Eastern Provinces, where the conflict was most fierce. At the end of the civil war, about 160,000 Tamils were unaccounted for, but as in any conflict zone, there are real difficulties in establishing how reliable any such statistics may be. The LTTE within Sri Lanka is a spent force and the government has full control over the whole of Sri Lanka.

7. The evidence before us indicates that the Sri Lankan government is determined to ensure that Tamil separatism and the conflict it brought never recur. The government’s intention is being carried into effect by an intensive militarisation and Sinhalisation of former Tamil areas, “rehabilitation” of 11,000 former LTTE cadres, and intelligence-led monitoring and supervision of Tamil activities, both within Sri Lanka and in the diaspora.”

36.The Upper Tribunal proceeded to explain in its decision why it was appropriate to revise the existing country guidance since the end of the civil war in May 2009 in Sri Lanka:

“Existing guidance

43. The core of the existing country guidance dates back to the decision in LP in 2007, which identified twelve “risk factors” which, singly or together, indicated an enhanced risk of persecution or serious harm for those returning to Sri Lanka at the height of the internal armed conflict between the LTTE and the GOSL. A number of factors (which became known as the LP/TK factors) were identified as being likely to raise official interest in returnees from the United Kingdom, particularly those on charter flights. The evidence underlying the LP decision was up to date as at April 2007 and focused principally on the risk of being identified and detained at Bandaranaike Airport in Colombo, or in Colombo itself. The AIT considered that the majority of returning failed asylum seekers were processed relatively quickly at the airport and with no difficulty beyond some possible harassment.

44. The AIT in LP emphasised that in each case the analysis of risk or reasonable degree of likelihood of persecution or serious harm if he or she were returned to Sri Lanka, the “risk factors”, and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the credible facts established by such individual, having regard to the lower standard applicable in international protection claims.

45. In TK, decided soon after the end of the civil war in Sri Lanka, the AIT upheld the approach in LP but considered that, if anything, the situation for returning failed Tamil asylum seekers had improved. The evidence in TK was current as at 26 October 2009 and is therefore now almost three and a half years old. The civil war has ended and that has of course brought change, not just in the circumstances within Sri Lanka but also in the present concerns of the Sri Lankan authorities which may entail adverse interest in returning Sri Lankan citizens, including risks requiring protection under the Refugee Convention or Refugee Qualification Directive.

46. In a Policy Bulletin in October 2012, reissued in March 2013, the UKBA Country Specific Litigation Team, Operational Policy and Rules Unit set out the history of the TAG, HRW and FFT reports and press releases issued during 2012. The bulletin, even when released, did not engage with new UNHCR Guidelines issued in December 2012.

47. On 21 December 2012, the UNHCR published new “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka”, the first such guidelines since July 2010. The change in UNHCR’s assessment contributes to our view that now is the time for the Upper Tribunal to revise the guidance on Sri Lanka.

48. We considered that it was appropriate, in the light of the perceived changes and new UNHCR guidance, for the Upper Tribunal to reassess its own guidance on Sri Lanka.  We wanted to consider whether the situation remained as it had been in TK, that is to say, that the country was settling down into a peaceful recovery from a long and brutal civil war, or whether the situation in Sri Lanka was indeed deteriorating as suggested and new guidance was needed.  For the reasons we set out in this determination, we have concluded that the guidance needs to be replaced on the basis of the situation now.”

37.Having thus agreed on an exhaustive list of the issues relevant to the new country guidance, with the areas of general interest which the Tribunal and the parties agreed to consider as to the situations in Sri Lanka after the end of the civil war, as well as a number of factors relevant to the assessment of risk, and upon considering all the oral and written evidence received, of which the Upper Tribunal found “strikingly” broad agreement as to the militarisation of the Northern Province and as to the concerns of the Sri Lankan government about possible resurgence in the diaspora of Tamil separatism and/or of the LTTE or a similar Tamil separatist organization, the Tribunal then laid down the new country guidance as set out in [34] above.      

38.As noted above, and as submitted by Ms Souza for the Applicant, all these information were before the Board and were fully advanced in the Applicant’s skeleton submissions in support of his claim to the Board, but the Board did not appear to have taken them into account or considered them properly or at all, and instead just brushed aside the Applicant’s claimed fear of harm or persecution from the Sri Lankan authorities on the basis that LTTE had since been defeated that there will be no adverse interest in the Applicant upon his return to Sri Lanka without any proper regard to the changed focus of the Sri Lankan government or of the country guidance relevant to returning Tamil failed asylum seekers like the Applicant, for which I agree that Grounds (2) to (4) of the Applicant are reasonably arguable for his intended challenge of the Board’s decision on all the applicable grounds including BOR 2 risk, and hence it would not in my view be necessary at this stage to specifically consider his Ground (1) for the present purpose.

39.In the premises, and for all these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable based on his Grounds (2), (3) and (4), and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Disposition

40.Accordingly I 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 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, with costs in the course and the Applicant’s own costs to be taxed on Legal Aid Regulations.     

Dated the 31^st day of July 2025

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