Dissanayake Mudiyanselage Siriya Dissanayake v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2981/2018

[2021] HKCFI 1810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2981 OF 2018

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 24/10/2013. She had an employment contract for 2 years.  Her contract was terminated prematurely. She left Hong Kong on 23/1/2014.  

2.She was back to Hong Kong again on 14/4/2014 on a domestic helper contract for 2 years.  Her contract was terminated prematurely on 30/6/2014.  She had overstayed since 12/8/2014 [1] until she surrendered to the Immigration Department on 17/3/2015.  She filed the non-refoulement claim of this case on 18/6/2015.

Background

3.The applicant was born on 22/3/1965 in Mampitiya Handissa, Kandy District, Sri Lanka.  She was a Christian.  She was the only child.  Jayantha was her cousin.  Her mother treated him as her son.  They grew up and lived together. She had education for 12 years.  She got married about 1987 but separated in 1991.  Her parents were deceased.[2]  She had worked as a domestic helper in Dubai from 2000 to 2012.  She had no political affiliation.

4.Around 2012, her cousin intended to marry a Muslim girl Sameera whose father owned a tea factory.  Her father was rich and powerful.  She believed he had connections with politicians as well as gangsters.  The intended marriage was against the tradition of Sri Lanka as they were from different social classes.  Her cousin was a 3-wheel-taxi driver.  After Sameera’s father knew about the relationship, he sent strangers to stalk her cousin.

5.One day in June 2013, Sameera’s father had an argument with her cousin near the school of Sameera.  They fought each other eventually.  Sameera’s father threatened to kill her cousin if he married Sameera.  (1^st incident)

6.Seven days later, shortly after midnight, she noticed 5 strangers outside her house.  They were about to throw stones at her house.  She fled with her cousin through the back door.  They confronted Sameera’s father at his house the next morning.  They were beaten up by some men who threatened to kill them.  Her cousin was so frightened that he would only contact Sameera on the phone since then. (2^nd incident)

7.In August 2013, Sameera’s brothers and two men came to her house. They assaulted her and threatened to set fire on her house.  Her cousin was not at home.  They told her that her cousin had to stop the relationship with Sameera.  She was injured seriously and hospitalized for 5 days.  The hospital reported the case to the police.  She gave a statement to the police but was unable to obtain a copy.  As she had provided financial support to her cousin for the marriage, she thought that was the reason of the assault.  (3^rd incident)

8.Five days after her discharge from the hospital, Sameera’s brothers and the others came to her house.  They assaulted her and her cousin.  Her cousin fought back with a spatula (spade).  During the fight, her cousin hit the head of Sameera’s brother.  They were frightened and immediately fled to a neighbour’s house.  They eventually fled to her uncle’s place at Anurada Pura which was an eight-hour-trip by bus.  Later she was told by her neighbour that Sameera’s brother died of head injuries.  Sameera’s father burnt down her house. (4^th incident)

9.Two days later, her uncle took her cousin to a friend at Colombo. Her uncle sent her to another friend at Anurada Pura.  She subsequently came to Hong Kong on 24/10/2013 for work.  In January 2014, her contract was terminated.  She was unable to obtain any information about applying for refugee status.  She thus returned to Sri Lanka and stayed with her uncle’s friend at Anurada Pura for 3 months.  She did not return to her home village.  She came back to Hong Kong for work as a domestic helper again in April 2014.

10.She had not contacted her cousin since leaving for Hong Kong in 2013.  She did not know his whereabouts.

11.She could not relocate to Colombo.  She had no friend there.  Sameera’s father was powerful.  He could mobilize politicians and gangsters to locate her anywhere in Sri Lanka.  She had not reported the threats and assaults to the police.  She could not afford a bribe to the police.[3]

12.She feared she might be harmed or killed by Sameera’s father and his underlings because of the disputes.

The decision of the Director

13.The Director concluded that there was no substantial ground for any real risk that she would be harmed or killed by Sameera’s family:[4]

a.  She was assaulted and hospitalized for 5 days.  However, her injuries did not amount to ‘a minimum level of severity’.

b.  She returned to Sri Lanka after her contract was terminated in early 2014.  She stayed with her uncle’s friend for 3 months.  This conduct was not consistent with her claim that she was in fear of her life.

c.  She stayed in Anurada Pura with her uncle’s friend in 2013 and 2014.  She was safe there for a total of about 3 months.  She was not located by Sameera’s father.

d.  Her cousin had fled to Dubai in September 2013.  There was no prospect of an intended marriage with Sameera.  Her father would not be after her because of the intended marriage.

e.  It was her cousin who killed Sameera’s brother with a spade.  There was no allegation against her.  There was no reason for Sameera’s father to kill her.

f.  She had not reported to the police about the threats and assaults.  There was no evidence the police would not assist her.

g.  There were concerns in Sri Lanka about corruption, police abuse of power and violation of human rights.  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.  The government took positive steps to uphold various freedoms.  There were measures to improve public order, prevention of crime and terrorism.  News reports indicated that the police had enforced the law against officials and political leaders.

h.  There was no evidence that the Sri Lanka government was unwilling or unable to discharge their duties.

i.  The law allowed internal relocation in Sri Lanka. There were relocation options such as Colombo and Anurada Pura.  The applicant was safe while staying in the latter with her uncle’s friend.  Given that Sri Lanka was a large country with huge population, it would be difficult for Sameera’s father to locate her.  She had education for 12 years.  She had work experience as a domestic helper abroad.  It would not be unduly harsh for her to relocate.

14.The Director rejected her claims on all grounds on 22/3/2018.

The decision of TCAB

15.There was an oral hearing held on 20/11/2018.  The applicant gave evidence and answered questions in the hearing with the assistance of an interpreter.  The adjudicator rejected the evidence of the applicant based on the following:

a.  In her 2015 signification, the applicant mentioned that she might be harmed by her husband.  During the oral hearing, she did not mention this at all.

b.  The other family members of her cousin were safe in Sri Lanka.  They were not harmed by the Sameera family.

c.  According to her evidence, she and her cousin were involved in the murder of Sameera’s brother.  There was no legal action against either of them.  They were free to leave Sri Lanka.  She entered and left Sri Lanka in 2013 and in 2014.  Her cousin left for Dubai in September 2013.

d.  In her NCF, she said she did not contact her cousin after staying in Hong Kong.  However, during the oral hearing, she said she kept the contact with her cousin until January 2018.  She could not explain.

e.  She could not explain satisfactorily the connections of Sameera’s father with other politicians given that she was away from Sri Lanka for 12 years.

f.  Although she could not recognize anyone who threw stone at her house during the 2^nd incident, she maintained that they were from the Sameera’s family.

g.  During the 2^nd incident, she and her cousin left the house before anyone broke into it.  However, during the interview before the Director, she said those people chased after them.  If they were so frightened, it was not reasonable that they confronted Sameera’s father at his house in the next morning.  She failed to explain.

h.  In the 3^rd incident, the police took a statement from her.  She did not ask for a copy.  She did not follow up with the police.  She thought it might create more problem.

i.  During her hospitalization during the 3^rd incident, the assailants did not locate her cousin at her house.  It was only after her discharge and returned home that there was another attack.  She could not explain satisfactorily. 

j.  In relation to the 4^th incident, the applicant and her cousin hid inside her neighbour’s house for 2 days.  The assailants did not enter and search her neighbour’s house although they were outside.  She told the adjudicator that they might have a little suspicion only.  This explanation was not acceptable given the fierce past conduct of the assailants.

k.  After her house was burnt down after the 4^th incident, none of her family members had taken any action against the Sameera family nor reported to the police.  The applicant stressed that others had no right to report the fire as the house belonged to her.  The adjudicator found this explanation most unconvincing.[5]

16.Given that the adjudicator rejected the evidence of the applicant, she found that there was no relationship between the applicant’s cousin and Sameera.  There was no attack or life threats as claimed by the applicant.  The adjudicator dismissed the appeal on all claims on 14/12/2018.

Judicial review

17.The applicant applied for leave for judicial review on 27/12/2018. In her supporting affirmation, she maintained that she still had life threat from her enemies.  She was injured and hospitalized.

18.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. 

19.The applicant had not pointed out any specific error in the decisions of the TCAB. 

20.The evidence of the applicant was full of contradictions.  I agree with the findings of the adjudicator.  In my judgment, there is no error of law or procedure.  I agree with her decision.  It is rational.

Conclusion

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

Dated 29^th day of June 2021

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