Case Document

100%Judiciary

HCAL 586/2019

[2022] HKCFI 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 586 OF 2019

BETWEEN

	Rathnayake Mudiyanselage Yasomenike	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong lawfully on 24 November 2005, to work as an FDH[1]. Her contract of employment was prematurely terminated on 25 April 2006. She was not arrested by the police for overstaying until 15 July 2009, some three years later. She was transferred to the Immigration Department the next day. The applicant submitted her first non-refoulement (“NRF”) claim by way of written representation on 17 July 2009[2] and lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment only. She was released on recognizance on 23 July 2009. Her claim was rejected under s37ZI(1)(b) of the Immigration Ordinance, Cap 155, on 9 January 2013. The applicant appealed that Decision on 21 January 2013 to the TCAB. Her appeal was rejected on 9 April 2013. On 17 April 2013, she made a further NRF claim by way of written representation[3] but it was not until 2 February 2016, that the applicant was notified that her NRF claim would fall to be considered under the USM[4] on all grounds save for torture e.g. CIDTP and Persecution. To that end, she submitted a supplementary claim form dated 16 March 2016.

2.The applicant attended a screening interview on 8 June 2016 under the USM. The Director of Immigration (“the Director”) dismissed her claim on all grounds (not including torture or BOR2) by Notice of Decision (“the Decision”) on 29 August 2016 and by Notice of Further Decision (re BOR 2) on 25 July 2017 (“the Further Decision”). She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard her appeal on 1 December 2017 by which time all matters were before her, including the Further Decision, although whilst she also considered the application under risk of torture, she came to the conclusion that it had been properly dealt with under previous hearings. The Adjudicator considered her appeal on all other applicable grounds including BOR 2 and refused her appeal on 10 January 2019.

3.The applicant filed a notice of application for leave to apply for judicial review on Form 86 on 1 March 2019 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Sri Lankan national. She was born on 24 February 1965 and is 57 at the time of writing. She was born and raised in Sri Lanka and achieved GCE O level education. Neither she nor her family have any political affiliation in Sri Lanka. The applicant has previously worked as an FDH in Singapore and Cyprus before coming to Hong Kong.

5.At some stage in 2003, and whilst still in Sri Lanka, the applicant entered into a relationship with a person called Chandrarathne. This turned sour in 2005 when the applicant found out that he was already married with a child. A row broke out in which the applicant maintains that Chandrarathne raped her. She went to make a report to the police but left the police station after a few hours and did not follow up. Although she moved away, she continued to speak to her ex-boyfriend by phone. This communication stopped at the end of 2005, which was the same time that she came to Hong Kong. The applicant nevertheless believed that she was at risk because she had told others about the rape. She had been told by her father and her sister that Chandrarathne had looked for her and threatened to kill her or disgrace her. These threats were not made directly to her.

6.Prior to coming to Hong Kong the applicant had borrowed LKR500,000 from a man called “Sarath”. She was required to pay LKR450,000 to someone to obtain work in Hong Kong of which she had paid LKR125,000 directly but the remainder was outstanding. She arrived on an FDH visa in November 2005. Since that date, Sarath has been in constant touch with the applicant’s parents and family members to obtain the money she owes and has made threats against her, but not her parents or family personally, save that he threatened to burn down their house if she did not return to Sri Lanka. This did not happen. Her parents have now passed away and the house is occupied by her sister. The applicant does not know how much of the loan is yet to be repaid but maintains that Sarath has threatened to instruct gangsters to harm her, her home, her goods and her reputation, if she returns.

The non-refoulement claim

7.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state. The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”). Under “persecution risk”, the applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

8.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of her claim. The Director and the Adjudicator must then assess the level of harm the applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that she is the subject of such risk. Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision of the Adjudicator

9.The applicant seeks to appeal the decision of the Adjudicator dated 10 January 2019 because she is “not satisfied with the decision”. The Adjudicator analysed the applicant’s claim on all applicable grounds. She also considered the original torture claim but did not make a ruling as to that claim having found that it had been properly considered under the applicant’s original NRF. She arranged for an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles including the burden and standard of proof.

Leave to apply for judicial review

10.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to her non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review. The applicant seeks a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable[5].

13.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.

Dated the 9th day of March 2022.

	(Trista Wong)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must:
a) file any notice of appeal within 14 days from the date of judgment or order; and b) serve any notice of appeal on the respondent/s and such interested parties as may be directed by the court; and c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the registrar; (i) a copy of the sealed judgement or order and copy of the reasoned decision; and (ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice Order 59, rule 5(1); and d) the registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served Order 59 rule 5(3); and e) comply with Order 59 the Rules of the High Court to properly progress the appeal.		Sent to the Applicant on 09/03/2022 Rathnayake Mudiyanselage Yasomenike Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 09/03/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4746/16/9/125/S98 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 392/16 (formerly RBCZ 2000283/14) INCZ 9002681/17 (QA T/C 392/16; formerly RBCZ 2000283/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)