Parussalla Gamaralalage Thanuja Darshani Amarapali v. Torture Claims Appeal Board / Non-refoulement Claims Petiton Office

HCAL 2833/2018

[2021] HKCFI 1581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2833 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 16 November 2018 (the “Decision”). 

2.The Applicant is a Sri Lanka national.  She lawfully entered Hong Kong on 13 January 2005 as a visitor and became an over-stayer since 13 February 2005.  She was arrested by the police on 23 August 2012 for breach of condition of stay by overstaying.   

3.On 22 December 2012, she made a torture claim alleging that she will be harmed or killed by her ex-boyfriend, if refouled. On 11 July 2013, a screening interview was conducted On 30 September 2013, the Director of Immigration (the “Director”) rejected her torture claim.  She appealed to the Board.  Her appeal was dismissed on 14 January 2014.

4.Almost as soon as the Director rejected her torture claim, the Applicant made her non-refoulement claim on 9 October 2013. In the interim period, she was convicted of the offence of taking up unapproved employment and sentence to 13 months’ imprisonment on 8 September 2014 and of using an identity card relating to another person and taking up unapproved employment and sentenced to 15 months’ imprisonment on 21 April 2016. 

5.The Applicant completed a supplementary claim form dated 14 December 2016 for non-refoulement protection on all applicable grounds other than torture risk ground under the Immigration Ordinance.  A further screening interview was conducted on 7 February 2017. 

6.In due course, her non-refoulement claims were assessed on all three remaining applicable grounds available under the Unified Screening Mechanism (“USM”), namely: BOR 3 Risk[1]; Persecution Risk[2] and BOR 2 Risk[3].  By a Notice of the Decision dated 17 February 2017, the Director rejected her claims (the “Notice”).  She lodged an appeal to the Board against the decision of the Director in the Notice on 3 March 2017.  An oral hearing was held on 14 September 2018 in which both the Applicant and the Director were legally represented.  Her appeal was dismissed by the Board’s Decision dated 16 November 2018.  She now seeks for leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

7.The following account of the Applicant’s case is mainly based on the information in her supplementary claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

8.The Applicant is a Sinhalese Buddhist.  She fell in love with her ex-boyfriend who was a soldier in the Sri Lanka army and connected with the United People’s Freedom Alliance (“UPFA”).  In July 2004, her ex-boyfriend proposed to her.  Later that month, the Applicant’s uncle who was a provincial councillor of the UPFA told her family that her ex-boyfriend had ties to the underworld, operated as a gangster and committed serious crimes such as murder and rape. 

9.When her ex-boyfriend visited her a week later, the Applicant asked him about his ties to the underworld.  Her ex-boyfriend denied.  The Applicant did not believe and wanted to break up with him.  Her ex-boyfriend warned her that he would kill her if she refused to marry him.

10.Over the next two months, the Applicant continued to receive threatening phone calls from her ex-boyfriend threatening to kill her unless she married him.

11.On 10 October 2004, when she was alone, her ex-boyfriend suddenly came to her home.  He raped her at gunpoint and threatened to kill her if she reported to the police.  The Applicant believed that was done to degree her body so that she could not marry any one according to Sri Lankan custom.  The Applicant told her parents about the rape.  They advised her not to report to the police because it was degrading.

12.Two days later, her ex-boyfriend came to her house and asked her to leave with him.  He threatened to kill her if she did not do so and said he would return the day after to pick her up.   That night, the Applicant moved to Anuradhapura to stay with Ms Malani, a distance relative.

13.In December 2004, her ex-boyfriend located her and came to Ms Malani’s house with five to six people.  The Applicant was not there.  Her ex-boyfriend told Ms Malani not to harbour the Applicant anymore or he would kill her.  On 12 January 2005, the Applicant fled to Hong Kong.

14.Between 2005 and 2012, the ex-boyfriend had visited the Applicant’s parents 10 to 15 times asking for the Applicant’s whereabouts.  In one of the visits, her ex-boyfriend assaulted her brother.  Her brother then moved to Korea to avoid him.

15.From 2013 to March 2016, her ex-boyfriend visited her mother and threatened to kill the Applicant if she returned to Sri Lanka. 

16.Her ex-boyfriend also visited her family 12 to 15 times before her father’s death in May 2018 and three to four times during her father’s funeral and started a fight with the Applicant’s other brother.  Around 2015 to 2016, he started calling her family members about twice a week by phone asking for the Applicant’s whereabouts and threatening to kill her.

The finding of the Board

17.The Board spent 14 pages analysing the Applicant’s evidence.  It considered her evidence about the background and her biographical information consistent, spontaneous and detailed.  It accepted those evidence.  In stark contrast, her evidence about the rape and threat is vague, general and unpersuasive.  The Board found significant inconsistencies which the Applicant was unable to explain.  She was unable to elaborate on the details about the incidents her ex-boyfriend visited her home.  She said during the oral hearing that her ex-boyfriend visited her family 12 to 15 times in addition to the other claimed visits, notwithstanding her own evidence at the beginning of the oral hearing that apart from her father’s death and the few visits to ascertain whether she had returned for her father’s funeral there were no other past incidents or claims that she had not already mentioned.  She also gave conflicting reasons for her brother’s leaving for Korea.  In the NCF, the Applicant claimed that her ex-boyfriend accused her brother of informing the neighbours about the rape as the excuse for attacking her brother.  But at the oral hearing, she said that her ex-boyfriend assaulted her brother for sending her to Hong Kong.  The Applicant gave confusing evidence as to the last time she had contact with her ex-boyfriend.  After a number of attempts and clarifications, she said it was April 2004.  That was well before the alleged rape in October 2004.  That significantly undermined the centrepiece of her case that she continued to receive death threats from her ex-boyfriend over the two months after July 2004, the rape in October 2004 and the visit to her home two days later.  The Board did not believe her evidence.  The Board also found it inherently improbable that some 14 years since the Applicant refused to marry her ex-boyfriend in 2004 when she was 22 years old, her ex-boyfriend still has adverse interest in her.  Having failed to prove her claim of ill-treatment and threat, there was no factual basis to support her claim for non-refoulement on any of the remaining three applicable grounds.

18.In addition, the Board did not accept that being a soldier arriving in an army jeep before the rape, her ex-boyfriend was acting in an official capacity or purporting to do so. Having considered the Country of Origin Information, the Board also considered state protection available to prevent the harm and internal relocation a viable option to avoid the harm.

19.In summary, the Board considered that on the basis of the Applicant’s evidence there was no real risk that she would face any of the proscribed forms of harm should she return to Sri Lanka. 

Grounds for judicial review and disposition

20.The Applicant has not advanced any grounds of application for judicial review.  At the hearing, attempts were made to solicit from her any possible grounds for the application.  All that she could say was that she disagreed with the Board’s findings that she could return to Sri Lanka because her problem is still there; that she has given birth to a daughter now 19 months old and that she would be in danger if returned to Sri Lanka.  She produced a letter allegedly from the administrator in her village certifying that she is subject to life threats by an underworld gang member who is searching for her and it is very dangerous for her to return.

21.In essence, the Applicant is challenging the findings of facts of the Board under the guise of judicial review and adduce new hearsay evidence from the administrator in her village.  The new evidence was general in nature and lacks specifics.   Quite apart from the doubtful probative value which may be attached to the letter, it adds nothing new to the Applicant’s case.

22.In a further attempt to investigate any possible ground for judicial review, the Applicant was asked if she was free to present her case to the Board.  She confirmed that she was and was not prevented from addressing the Board.  She had no complaint about the proceedings before the Board.  There was no procedural unfairness.

23.The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational. The Applicant’s claims were not reasonable arguable.  There was no realistic prospect of success in the intended judicial review. 

Conclusion

24.For the above reasons, leave to apply for judicial review was refused.

Dated 2^nd 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

[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[2] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] [2018] HKCA 524 at para 14(1)