Wimalasuriya Dona Shayamalie v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1768/2018

[2020] HKCFI 3104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1768 of 2018

BETWEEN

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 the Applicant in open court;

Order by Deputy High Court Judge P Li:

Leave to Apply for Judicial Review Be Refused.

Observations for the Applicant:

1.The applicant came to Hong Kong as a domestic helper on 23 March 2009. She had an employment contract for 2 years.  Her contract was terminated prematurely.  She left Hong Kong on 25 April 2009. 

2.She returned to Hong Kong again on 5 August 2009 on a domestic-helper contract for 2 years.  Her contract was terminated prematurely on 23 September 2009. She had overstayed since 8 October 2009 [1] until she surrendered to the Immigration Department on 11 August 2015.  She was granted bail on 11 September 2015.  She filed the non-refoulement claim on 6 May 2016.

Background [2]

3.The applicant was born on 1 December 1968 in Moragoda, Gampaha, Sri Lanka.  She lived at Mudungoda since 1988.  She had education for ten years. She got married in 1990 with 4 children.  They were living in Sri Lanka.  Her husband was a casual labourer.  He was in Italy.  She did not know his address. She had worked as a domestic helper in Kuwait for about 2 years [3].

4.Her husband initially supported the United National Party (‘UNP’). The UNP people promised to give him a house and a job.  The promise did not materialize.  Her husband then changed allegiance to Janatha Vimukthi Peramuna (‘JVP’).  Her husband held no post in JVP.  However, he received subsidies from the party.  He organized meetings at home and helped to hang banners for JVP during elections.

5.She also supported JVP because of her husband.  She was not a member.  She prepared food for the meetings and assisted in the propaganda activities. 

6.About March 2009 when she worked in Hong Kong, she received a phone call from her daughter that some UNP people vandalized their house.  Her husband was not there.  Those people threatened her children not to report.  They did not hurt her children.  She was worried and quitted her job in Hong Kong.  She returned to Sri Lanka later that month. 

7.About mid-May 2009, she witnessed her husband abducted from home by three men claiming to be UNP people.  They asked her husband why he worked for JVP.  Later, she went to the police who did not register the report.  The police just told her that her husband would return home safely.  She went to seek help from the JVP people who could not help.  She asked the village officer for help but no action was taken.

8.One late evening in early June 2009, some people in plainclothes, claiming to be the police and UNP, came and vandalized her home.  They abducted her to a deserted house and detained her in a room.  Her hands were tied.  Later, three men asked her about JVP and her husband.  They hit and kicked her as she knew nothing about it.  There were bruises all over her body.  At the same night, the same three men raped her in turn.  They even stuck a hard object into her vagina.  She fainted.  Early next morning, she managed to escape through a window.  She ran for 20 minutes to a road.  She eventually took a three-wheeler to her friend’s place which was about 20 minutes’ walk from home. She did not return home as she was in great fear.

9.She told her sister about the incident by phone.  Her sister promised to take care of her children.  Her friend took her to a private clinic for treatment.  They dared not go to a hospital for fear of the UNP people.  She was given medicine.  It took her two weeks to recover.  Her sister reported to the police but they did not take action.  She did not seek assistance from other authorities.

10.While she was processing the travel arrangements, she stayed with her sister or her friend between June and August 2009.  Nothing happened to her. She learned from her neighbour that the UNP people went to her house regularly asking about her.  Eventually, she left Sri Lanka on 5 August 2009 with her passport.

11.In Hong Kong, her contract was terminated prematurely.  She was in fear of the UNP and decided not to return to Sri Lanka.

12.Around 2015, she learnt from a friend about non-refoulement protection in Hong Kong.  She thus surrendered to the Immigration Department.  She did not apply earlier for fear of being sent back to Sri Lanka.

13.She kept in contact with her children and sister.  The UNP people looked for her from time to time. 

14.Her sister told her in 2010 that her husband had sought protection in Italy after being abducted and tortured by the UNP people.  She could not contact her husband as she did not have his phone number.  She had no money to buy a phone card.  Her children were taken care of by her sister and her friend.  They were safe.  She could not sleep well because of the incident.

15.She had no money to relocate to Colombo.  She had no relative there.  She needed to register with Grama Niladhari [4] in order to relocate and work.  The UNP had connection with Grama Niladhari and other public officials.  She thought the UNP would be able to locate her anywhere in Sri Lanka.  She could not seek assistance from the police who took no action when her husband disappeared.

16.She signed the application for work visa in relation to the 2^nd employment contract on 23 May 2009, whereas she said her friend helped to process her application after the detention in June 2009.  She did not know why there was such a difference.  It was the agent who completed the application form.[5]

The Decision of the Director

17.The Director pointed out the following important aspects:[6]

(a)  She was detained and assaulted.  She was raped.  Early next morning after this incident, she could still run for 20 minutes to a road and take a 3 wheeler to escape.

(b)  She did not seek assistance from the police or other authorities claiming to be in fear.  She stayed safe with her friend and sister from June to August 2009.  There was no direct threat to her from the UNP people.

(c)  According to the Immigration record, she signed the application for work visa in Hong Kong on 23 May 2009.  Whereas according to her evidence, she only arranged for another employment contract in Hong Kong after she escaped from detention in June 2009.  She explained it was arranged by her friend.  The explanation was unsatisfactory.

(d)  Assuming that the abduction was true, there was no evidence to indicate that it was connected with any government officials.

(e)  She was only a supporter of JVP, it was inexplicable that the UNP people would target her. 

(f)  There were problems such as corruption, failure to enforce the law and violation of human rights in Sri Lanka.  However, there were reforms to improve police competence and effectiveness.  The Human Rights Commission and National Police Commissions were established to tackle police misconduct and human rights violations.  There were trainings for the police to handle abuse of women, children and domestic violence.

(g)  There was no evidence that the Sri Lanka government was aware of her case but refused to exercise due diligence to prevent, investigate and prosecute offenders.  It was the applicant who failed to report to other authorities.

(h)  The law allowed internal relocation in Sri Lanka.  There were relocation options such as Colombo, Mudungoda and Ratnapura.  The applicant was safe while staying in the latter two cities with her sister and friend.  Given that Sri Lanka was a large country with large population, it would be difficult for the UNP to locate her.  It would not be unduly harsh for her to relocate.

(i)  The applicant did not seek protection when she was back to Hong Kong in August 2009.  She delayed until 2016 after surrendering to the Immigration Department.  This conduct was inconsistent with a person who needed imminent protection as she claimed.

18.Given the above, the Director did not accept there was any real risk of harm from the UNP people.

19.For BOR 3, the Director found no real and personal risk of ill-treatment if she returned to Sri Lanka.  This ground failed.

20.For BOR 2, on the same reasoning, there was no real risk of arbitrary deprivation of life.  There was no evidence engaging other sub-articles.  This ground failed.

21.For persecution risk, there was no substantial grounds to believe that the harm was from UNP party.  There was reasonable State protection.  There was viable internal relocation.  The fear for persecution was not well founded. This ground failed.

22.For torture risk, the risk of ill-treatment/torture was low.  There was no State involvement—consent, instigation or acquiescence.  The conduct of several UNP assailants could not be taken as that of the party or the government.  She could travel freely in and out of Sri Lanka.  She was not targeted.

23.The Director rejected her claims on 20 September 2017.

The decision of TCAB

24.There was an oral hearing held on 16 March 2018.  The applicant adopted her evidence before the Director.  She gave evidence and answered questions in the hearing.  The adjudicator noted the following points:

(a)  In her NCF, she did not say her daughter told her on the phone that some UNP men came and vandalised her home.  In the hearing, she said her daughter told her about the UNP on the phone.[7]

(b)  The applicant told the adjudicator that it was a friend (‘Rita’) in Hong Kong who assisted her to process the work visa for the 2^nd contract. The date of her signature was 23 May 2009.  She had not said so to the Director. Instead she told the Director that it was her friend in Sri Lanka (‘Sakunthala’) who assisted her after she escaped from detention in June 2009. Her explanation of this inconsistency was not satisfactory.[8]

(c)  The adjudicator pointed out to her that there was no election in 2009.  JVP was not a banned group.  Her husband was only a supporter of JVP.  Both of them had never been high profile in UNP.  There was no independent credible basis for UNP to target them.  The applicant could not explain.  The adjudicator did not accept the abduction of the applicant and her husband were connected with the UNP party itself. [9]

(d)  The applicant admitted that she would be fine to live with her daughter in Ratnapura instead of her home town at Mudungoda.  She needed 4 months to get a new passport.

25.In considering torture risk, the adjudicator pointed out that the incident occurred almost 10 years ago.  Her whole family no longer resided at Mudungoda.  Her husband had left Sri Lanka about mid-2009.  There was no evidence that the incident was connected with the UNP party.  She could live with her daughter in Ratnapura.  The risk of harm to the applicant was remote. There was no pattern of gross, flagrant or mass violations of human rights in Sri Lanka.  In the circumstances, there was no real risk that she would be subjected to torture if returned to Sri Lanka.  This ground failed. [10]

26.For BOR 3, the adjudicator bore in mind the relevant background relevant to the assessment of torture risk.  There was no real risk that the applicant would be subject to mistreatment again from those who abducted her in 2009.  There was no evidence that UNP would target her.  There was no substantial ground that the applicant would be subject to CIDTP in Sri Lanka.  This ground failed.[11]

27.For BOR 2, given that the applicant was not subject to a real risk of torture or CIDTP.  The adjudicator found no real risk of arbitrary deprivation of life if she returned to Sri Lanka.[12]

28.For persecution risk, the adjudicator rejected the applicant’s claim that she was targeted by the UNP political party.  There was no well-founded fear of persecution.  This ground failed.[13]

29.The adjudicator dismissed all claims on 7 June 2018.

Judicial Review

30.The applicant applied for leave for judicial review on 28 August 2018. In her supporting affirmation, she pointed out that she still had life threat from UNP people.

31.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director.  In general, this court would not interfere.

32.The applicant had not pointed out any specific error in the decisions of the TCAB and the Director. 

33.In my judgment, there is no error of law or procedure.  I agree with both decisions.  They are rational.

Conclusion

34.The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 18^th day of December 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