Warnapura Lesly Jayarathna v. Torture Claims Appeal Board

HCAL 1893/2019

[2021] HKCFI 2166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1893 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Sri Lanka who last arrived in Hong Kong on 5 August 2010 with permission to continue working as a foreign domestic helper until the expiration of his employment contract, but when his last employment contract was prematurely terminated on 18 September 2010, he did not depart and instead overstayed in Hong Kong, and on 15 October 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the uncle and brother of his former mistress who opposed their relationship as he was a married man. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Panadura, Sri Lanka. After leaving school, he worked in various jobs, married his wife and raised a family with a daughter in Village Kothalawala in his home district.

3.In 2003 he formed a relationship with his mistress, but after several incidents in July 2006 when he was confronted by her uncle and brother who were both in the Army and who demanded that he put an end to the relationship, and proceeded to beat him with kicks and punches, and before they left they warned him that he would be killed unless he ceased the relationship.

4.After the last attack the Applicant fled and hid in various other places, but when he later heard that his mistress’s uncle and brother were still looking for him everywhere, he felt it was no longer safe to remain in Sri Lanka, and so in December 2007 he departed for Hong Kong to work as a foreign domestic helper, and when his last employment contract was terminated in September 2010, he overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 29 May 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his mistress’s uncle or brother upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that having left his mistress and Sri Lanka since 2007 that it is doubtful that they or any member of her family would still have any adverse interest in him after all these years, that it was in any event a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from his home district in large cities such as Puttalam or Negombo where it would be difficult if not impossible for him to be located.

7.On 8 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 March 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 21 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies anomalies and inaccuracies in the Applicant’s evidence as to his claimed fear of harm from his former mistress’s uncle and brother which casted doubt on the credibility of his claim, which was further undermined by the fact that he never raised his claim when first arrived in Hong Kong until years later, that having already left his former mistress in 2006 that it is doubtful that there would still be any adverse interest in him after all these years, and that with reasonable internal relocation available for him to return safely to other part of Sri Lanka away from his home district in some large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 8 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life will be in danger if he is to return to his home country but without putting forward any proper ground for his intended challenge.

10.Before his application could be dealt with by the court, the Applicant on 30 December 2019 filed an affirmation to withdraw his application as he wanted to return to his home country, and on 13 January 2020 this court allowed his request and withdrew his application.

11.However, on 24 July 2020 the Applicant wrote to request to “re-open” his application, but after the court had requested him to clarify his reasons/grounds for re-opening his application, the Applicant on 24 August 2020 replied to confirm his decision to “abandon” his application for judicial review as “things are now under control” and that he wanted to go back to his home country, only to write again on 1 December 2020 to state that his problem is still there and that his life would still be in danger if he is to go back to his home country.

12.As such and as his application has never been formally dealt with or disposed of by the court, and to save time and cost, I allowed the Applicant to restore his application, but he failed to attend the scheduled hearing of his application. and as noted above, the Applicant has never put forward any proper ground for his intended application, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by him, I do not find any reasonably arguable basis for his intended challenge.

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.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.

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

Dated the 2^nd day of August 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