Marasingha Balagallage Kusumawathie Marasingha v. Torture Claims Appeal Board and Another

HCAL 1966/2018

[2020] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1966 of 2018

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.A claimant may, before a torture claim or non-refoulement claim is decided by an immigration officer under section 37ZI of Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”), withdraw the claim by notifying an immigration officer in writing: section 37ZE of the Ordinance.

2.However, section 37ZE also allows such claim that has been withdrawn to be re-opened upon the claimant satisfying an immigration officer certain conditions as follows:

“ (2) Subject to section 37ZF(3), a torture claim that has been withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that –

(a) since the withdrawal, there has been a change of circumstances that –

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

(3) If an immigration officer decides to re-open a person’s torture claim under subsection (2), the immigration officer must, by written notice, inform the person of the decision.

(4) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision.

(5)      …”

3.In the present case, the Applicant is a national of Sri Lanka who had borrowed a loan from a local loan shark in her home district to finance her application to work as a foreign domestic helper in Hong Kong, but when her employment was terminated in early 2006, she overstayed in Hong Kong and subsequently in November 2008 raised a torture claim with the Immigration Department on the basis that if she returned to Sri Lanka she would be harmed or killed by her creditor for failing to repay her loan.

4.On 8 August 2013 her torture claim was rejected by an immigration officer under section 37ZI(1)(b) of the Ordinance upon finding that it was a private monetary dispute between her and her creditor over her loan without any state or official involvement that her alleged threats did not amount to torture as defined under section 37U(1) of the Ordinance, that in any event it was a localized risk that state/police protection would be available to her upon her return to Sri Lanka as well as reasonable internal relocation available for her to move safely to other areas away from her home district without any risk of being located by her creditor.  Her subsequent appeal to the Torture Claims Appeal Board (“the Board”) was also dismissed on 17 December 2013. 

5.On 3 March 2014 the administrative launched the Unified Screening Mechanism (“USM”) to screen non-refoulement claimants on all applicable grounds including the said torture risk under Part VIIC of the Ordinance, risk of 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”).

6.On 20 March 2014 the Applicant raised a non-refoulement claim on the same basis as before under all the above applicable grounds except the torture risk which had earlier already been disposed of, but before her non-refoulement claim had been determined, the Applicant on 27 September 2016 wrote to the Director of Immigration (“the Director”) to withdraw her non-refoulement claim as she stated as follows;

“ …I want to go back to Sri Lanka as soon as possible (Colombo). I am safe to go home ……I want to cancel all my non-refoulement claims in Hong Kong and I don’t need to see my non-refoulement officer. I want to go in December. I have no other request……”

7.On 30 September 2016 the Director accepted the Applicant’s request and confirmed that no further action would be taken of her claim.

8.Three months later on 28 December 2016, the Applicant wrote to the Director to request to re-open her claim, in which she stated as follows:

“ … …I already apply go back to Sri Lanka because my parents are not well. I’ll try to go back my Sri Lanka but unfortunately my mother died last 22^nd 12. 2016 because of heart attack. In my mother’s funeral days, my cash creditors try to find me and my daughter to kill and they fight with my other family members, therefore I can’t go back to Sri Lanka. When I go there again, they try to kill me because I can’t pay there money… …”

9.By a letter dated 4 January 2017 the Director requested the Applicant to provide information and evidence in writing to an immigration officer that since the withdrawal of her claim there had been a change of circumstances that her claimed risk of danger in Sri Lanka could not reasonably have been foreseen by her when she gave her notice of withdrawal, and that when taken together with the materials previously submitted that it could increase the prospect of success of her claim, or that there were special circumstances which would render it unjust not to re-open her claim under section 37ZE(2) of the Ordinance.

10.The Applicant replied in writing on 10 January 2017 with similar claims as before:

“ … Please try to understand my situation. My father was has a operation in 20^th .12.2016 but it will not done because of his age is not good for that operation. Unfortunately my mother die because of heart attack. At that funeral days my cash creditors find me and my daughter because they need there money there for my daughter also not attend to the funeral. That people stay 3, 4 days until both of us come to the funeral. They hidden and try to kill me. because that why I can’t go back to Sri Lanka. It will very dangerous for my life… …”

11.By a Notice of Decision dated 3 February 2017 the Director refused to re-open the Applicant’s claim upon finding such information as provided by her that her creditor was looking for her at her mother’s funeral were not sufficient evidence to satisfy an immigration officer that since her withdrawal in September 2016 that there had been a change of circumstances which could not reasonably have been foreseen by her and that when taken together with the materials previously submitted for her claim they could not increase the prospect of success of her claim, nor were there any special circumstances that would render it unjust not to re-open her claim.

12.On 20 February 2017 the Applicant lodged an appeal to the Board against the Director’s refusal to re-open her claim, and for which she attended an oral hearing on 7 June 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 19 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

13.In its decision the Board accepted the Applicant’s claim of her mother’s death and that her creditor was looking for her at the funeral, but found that it did not amount to a change of circumstances which she could not reasonably have foreseen, since her creditor had always posed a danger to her throughout the material time, that it was only her subjective belief that it would be safe for her to return to Sri Lanka after all these years rather than based on objective factual considerations, and that there were no special circumstances which would render it unjust not to re-open her claim.    

14.On 18 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely repeated her claim of fear of being harmed or killed by her creditor if she were to return to Sri Lanka but without putting forward any proper ground for her intended challenge, while none of those principles and authorities cited in her affidavit were relevant to her case which was essentially a question of whether she had provided sufficient evidence to satisfy the requirements under section 37ZE(2) of the Ordinance.

15.As noted above, the Board did correctly identify the tests and the statutory requirements for re-opening a withdrawn claim, then properly applied them to the Applicant’s case based on her evidence provided in writing before as well as her oral evidence given during her appeal hearing before the Board, and then it was with the thorough and detailed analysis and reasoning as set out in paragraphs 33 – 101 of the decision that it arrived at its conclusion.  As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.        

16.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 1^st day of September 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