Case Document

100%Judiciary

HCAL 2411/2018

[2020] HKCFI 1658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2411 of 2018

BETWEEN

	Elube Dewayalage Kusumalatha Weerathunga	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

The applicant

1.The applicant is a national of Sri Lanka. She came to Hong Kong on 21 May 2011 as a domestic worker. Upon termination of her employment contract, she did not leave Hong Kong. On 11 September 2015 she surrendered to the Immigration Department. She lodged her non-refoulement claim by way of a written signification dated 23 May 2016.

2.In support of her claim, she said that if refouled, she feared that she would be killed by her husband and Mahinda, who was her husband’s creditor and had love affair with her.

3.In 2009, her husband had borrowed a loan from Mahinda for his vegetable business. Mahinda came to her house and developed a relationship with her. Her husband did not know about it. In 2010, her husband’s vegetable business went down and he was unable to repay the loan. Mahinda took several people to her house to look for her husband. They took her away to a house where they raped her. Later, her husband rescued her. He discovered that she had a relationship with Mahinda and he was furious. He abused her and raped her. She escaped to live in her mother’s house. She knew that both her husband and Mahinda were looking for her. She did not report to police because she knew that her husband and Mahinda were connected with the underworld. She decided to come to Hong Kong to work.

The Director’s Decision

4.The Director considered her application in relation to the following risks:

a.risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

5.By Notice of Decision dated 31 October 2016 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

6.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 28 February 2018 and 17 August 2018 respectively.

7.By Decision dated 24 October 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

8.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.In respect of the important events of her being abused by her husband and raped by Mahinda, she had given completely inconsistent evidence both in her written statement and her evidence at the hearing. When pressed for detail, the applicant was either completely unable to provide details or further contradicted her previous claims [52].

b.The Board, having considered her evidence with caution, was satisfied that the applicant’s inability to provide consistent, coherent or plausible evidence about major aspects of her claims led it to conclude that none of her claims were credible [57].

c.It found that she had not established that there were substantial grounds which supported the conclusion that she would face a real risk of ill-treatment as claimed if she returned to Sri Lanka because relocation is an option reasonably available to her [59].

d.She failed to show that a genuine and substantial risk of being subjected to the claimed ill-treatment at the hands of her husband, Mahinda or anyone else should she be expelled from Hong Kong [61].

Application for leave to apply for judicial review

9.The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

10.In her affirmation in support of her application, she said that she was not satisfied with the Board’s Decision and the Board did not allow her time to produce the documents.

DISCUSSION

11.The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

12.The Board did not accept her evidence on the facts of her case. There is no factual basis in support of her application.

13.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 held:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. …”

14.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

15.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 27^th day of July 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27/7/2020 Elube Dewayalage Kusumalatha Weerathunga Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5122/16/11/61/S105 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)