Kohona Adikaram Walawwe Wasantha Kumari Disanayaka . Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2018/2018

[2021] HKCFI 3694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2018 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W.  Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.I notice that there were two minors together with the applicant in their application for non-refoulement before the Director of Immigration (the “Director”) and before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).  For reasons unknown, the two minors are not included in the applicant’s application.

2.The applicant applies for leave to apply for judicial review of the Decision dated 20 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper. 

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

5.The applicant is a national of Sri Lanka.  She last arrived in Hong Kong on 12 July 2012 and was permitted to remain as a foreign domestic helper.  However, after her employment contract was prematurely terminated, she overstayed and was arrested by the police on 8 August 2014.  She lodged a non-refoulement claim on 10 August 2014. 

6.The applicant claimed that, if refouled, she would be harmed or killed by her husband’s brother RAG Nandasena (“RAG”) because she owed him money and refused to have an affair with him.  According to the applicant, she married her husband in September 1991.  Due to the impact of a political party, her in-laws moved close to her family.  One of the in-laws was RAG who was a dangerous alcoholic.  In around 1995, after the applicant’s refusal towards his pursuit, RAG attempted to rape her.  He even chased her to her maternal home and threatened her family.  Thereafter in 2011, RAG lent her a loan.  Due to her defaults, RAG came to her house, shouting and threatening at her.  The applicant stated that she sustained no injuries but, feared that RAG would hurt her, she eventually fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Notice of Decision dated 29 August 2016 of the Director (“the Director’s First Decision”) and paragraphs 13-16 of the Board’s Decision. 

The Director’s Decisions

7.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By the Director’s First Decision, the Director refused her claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by the RAG was assessed to be low [13]-[14]; that state protection would be available to her [15]-[18] and that internal relocation was an option open to her [19]-[24]. 

9.On 1 August 2017, the Director further assessed her claim on BOR2 risk and concluded that she failed to establish her claim thereunder (“the Director’s Second Decision”). 

10.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”. 

The Board’s Decision

11.The applicant appealed the Director’s Decisions to the Board.  An oral hearing was scheduled on 24 January 2018 but the applicant failed to attend.  On the hearing date, a letter was sent to the applicant’s last known address requiring her to provide reasons for her non-appearance or otherwise a decision might be made on the paper.  The applicant failed to respond to the letter within the time limit [11]-[12]. 

12.The Board considered the applicant’s claim, the Director’s Decisions and the available documents [13]-[20].  It also considered the relevant legal principles [21]-[44].  Due to the applicant’s absence, the Board dismissed her appeal.  The reasons for dismissal were provided at paragraphs 50-53 of the Board’s Decision:

“50. As indicated above, after considering the Appellant’s claims as contained in all material contained in the hearing bundle I decided that the matter could not be dealt with by a paper review, but required an oral hearing. In such circumstances it was for the Appellant to appear at such a hearing and prove her case to the required standard.

51. The Appellant did not appear at the hearing. She has given no evidence to support what she has written in her NCF, and I am unable therefore to decide on the credibility of her case.

52. It follows that I am unable to estimate what risks, if any, she faces if she is refouled to Sri Lanka, or to decide whether or not she is entitled to non-refoulement under the provisions mentioned above.

53.  Her claims therefore must be dismissed.”

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant filed Form 86 dated 24 September 2018 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant said that the Board’s Decision was unfair and unreasonable.

DISCUSSION

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.The Board had complied with the requirements under section 15 of the Schedule of the Ordinance, giving prior notice and warning to the applicant before it proceeded to assess her case in her absence.

18.The Board dismissed her appeal on the sole reason that because of her absence, there was no evidence from her and the Board was unable to decide on the credibility of her case.  The Board therefore took the view that it was unable to estimate what risks she faces if she is refouled to her country or to decide whether or not she is entitled to non-refoulement under the relevant provisions.

19.In a nutshell, the Board takes the view that since the applicant bears the burden of proof in support of her claim, she has failed to discharged her burden and her claim fails.

20.It is clear that the Board had considered the Director’s Decision and other relevant documents such as the transcript of interview with the applicant as identified in paragraph 20 of the Board’s Decision.  The Board had summarized the facts found by the Director and the reasons given by the Director for his refusal of the applicant’s claim.  See paragraphs 13-19 of the Board’s Decision.

21.In the circumstances, it is incumbent upon the Board to proceed to analyse and assess her claim against all applicable grounds on the basis that her case is plausible in accordance with the guidance of the Court of Appeal in Re Hidayah [2018] HKCA 595, 14 September 2018 at §§15 & 16:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

16. We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decisions is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

22.The Board has not discharged its duty in accordance with the guidance of the Court of Appeal.  This is a procedural irregularity which gives realistic prospect of success to the applicant’s intended application for judicial review of the Board’s Decision.

CONCLUSION

23.I therefore grant leave for the applicant to apply for judicial review of the Board’s Decision.  The applicant should, within 14 days from the date of this decision, issue the originating summons for her application for judicial review in accordance with Order 53, rule 5 of the RHC. 

Dated the 15^th day of December 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