Balasuriyage Sujeewa Priyanganie v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2893/2018

[2020] HKCFI 1881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2893 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 December 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

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

The applicant

4.The applicant is a Sri Lankan national.  She arrived in Hong Kong on 1 May 2006 via Lo Wu.  She was allowed to stay as a visitor until 15 May 2006.  She overstayed since 16 May 2006 and was arrested by police on 6 February 2015.  On 8 February 2015, she applied for non‑refoulement claim by way of a written signification.

5.The applicant claimed that, if refouled, she would be harmed or killed by her boyfriend’s brother-in-law, her creditor friend and perhaps, the Tamil Tigers.  The Tamil Tigers kidnapped her brother and burnt down her house.  Her parents died in the fire.  She had an affair with a man at the boarding house near the factory where she worked.  The man’s wife came with her brother and assaulted her.  Her brother together with other three men took her to a remote place where they raped her.  She had to borrow money from the creditor for the expense to come to Hong Kong.  She had not repaid her debt.  Her story is in paragraph 6 of the Board’s Decision.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 29 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of harm if she returned to Sri Lanka was low [12]; that state protection was available to her [15] and that internal relocation was an option open to her [20].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 12 October 2018.

9.The Board rejected her appeal and confirmed the Director’s Decision. 

10.The Board considered the applicant’s evidence and found:

a.  the applicant was not a witness of truth [63];

b.  there was no evidence that her house was burnt down by the Tamil Tigers [68];

c.  because of her inconsistent evidence on her relationship with her boyfriend, the Board did not accept that she came to Hong Kong because she wanted to avoid her boyfriend as she alleged [70];

d.  because of her inconsistent evidence, the Board did not accept as true her story of being assaulted and rape by her boyfriend’s brother-in-law and other people and it was a fabrication [71];

e.  the applicant had not sought help from any authorities in Sri Lanka [79];

f.  the Board did not accept that she had borrow money from the creditor [80];

g.  the Board concluded that the risk to the applicant was far‑fetched and fanciful [81]; and

h.  there was no evidence that there is a consistent pattern of gross, flagrant or mass violations of human rights in Sri Lanka for the purpose of section 37ZI(5) of the Ordinance.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that she was not satisfied with the Board’s Decision which was not in accordance with the international law and her life was not safe if she returned to Sri Lanka.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  In a nutshell, the Board rejected her evidence on the facts in support of her claim.  See paragraph 10 above.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.(1) … Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.The applicant’s grounds in support of her application are her opinions without any evidence or specifics.

15.The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

17.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 7^th day of August 2020

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