Weddawala Kankanamlage Sumanawathie v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 614/2019

[2022] HKCFI 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 614 of 2019

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 5 March 2019 is late for about eight and a half months. I shall deal with this issue below.

2.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.

3.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

4.The applicant is a national of Sri Lanka.  She entered Hong Kong as a visitor on 17 January 2005.  Although there was a departure record dated 24 January 2005 in respect of her Sri Lankan passport, she was subsequently arrested on 5 April 2010 in Hong Kong for overstaying.  On 7 April 2010, she lodged a torture claim.  Her torture claim was rejected and the subsequent appeal was also dismissed.  On 28 December 2013, she lodged a non-refoulement claim.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by a group of gangsters.  She also feared that her moneylender would harm or kill her as she failed to repay the loan.  In addition, her another source of fear came from the members of United National Party (“UNP”) because she supported the United People’s Freedom Alliance (“UPFA”).

6.According to the applicant, as a supporter of UPFA, she was threatened by members of its political rivalry.  Nevertheless, she was never threatened by the police or authorities in Sri Lanka.  In around February or March 2002, she was informed that her elder son had joined the Sri Lankan army.  Thereafter, some unknown men visited her house and demanded for money.  They also demanded her elder son to steal bullets for them from the army, failing which they would kill her and her son.  The applicant claimed that the gangsters paid constant visits to her house and her parents’ house making the same demands.  In May 2003, she reported to the police about these incidents but no follow up actions were ever taken by the police.  As to the loan dispute, the applicant borrowed some money from the moneylender, who was connected to the gangsters, in 2002. She was unable to repay and was threatened by the moneylender.  While she worked in Hong Kong as a foreign domestic helper, she was informed that her husband was killed by the gangsters and that the moneylender kept looking for her.  Out of fear, she stayed in Hong Kong for protection.  The details of the applicant’s claim were set out at paragraph 9 of the Notice of Decision dated 11 July 2016 by the Director (“the Director’s First Decision”) and paragraphs 20 to 27 of the Board’s Decision as described below.   

The Director’s Decisions

7.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 the applicant’s claim on the grounds of BOR3 risk and Persecution risk.  The Director found that the level of risk of harm against the applicant from her enemies upon refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[21]; (ii) state protection would be available to her [22]-[23]; and (iii) internal relocation was an option open to her [24]-[28].  In the Notice of Further Decision dated 4 July 2017, the Director found that there was no evidence to show that her right to life would be violated upon her return and rejected her claim on BOR 2 risk (“the Director’s Second Decision”).

9.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

10.The applicant appealed to the Director’s Decisions to the Board.  Both parties were legally represented and attended the oral hearing scheduled on 18 April 2018.

11.The Board first considered the applicant’s request for a female interpreter in the Sinhalese language.  In light of the unavailability of such female interpreter, following a direction hearing on 11 April 2018, the Board concluded that the applicant would be provided with a male interpreter with the caveat that, if the applicant felt unease at the hearing due to the gender of the interpreter, the Board ought to be alerted.  The applicant did not express any discomfort throughout the hearing [7]-[12].  

12.The Board proceeded to consider the respective submissions from the legal representatives and also the applicant’s oral evidence [13]-[18].  Having reviewed all the available documents, the Board found that the applicant’s evidence lacked credibility [41].  The Board eliminated the possibility that such inconsistencies might be caused by the difficulties faced by the applicant arising out of interpretation service provided by a male interpreter [42].  It observed that the applicant’s conduct was inconsistent with someone who was genuinely in need of protection [45]-[48].  It also considered the applicant’s evidence to be vague and contradictory, such as the details of the gangsters and how they imposed fear on her [50]-[51].  Insofar as the moneylender and the claim about the gangsters’ extortion of money were concerned, the Board noted that they were new and the applicant failed to provide any cogent information on these new claims [53]-[55].  It further observed that the applicant’s evidence during cross-examination was vague and self-serving and concluded that such bad quality of evidence was not due to the applicant’s age or culture but the fact that she was simply not a witness of truth [56]-[63].  For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.  

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

13.The applicant filed Form 86 dated 5 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant said she did not accept the Board’s Decision. She cannot not return to her country or she would be killed by the creditor, who is well-connected with the underworld and the politicians. She is unable to repay her loan to the creditor.

DISCUSSION

15.As mentioned in paragraph 1 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Her delay is significant and serious. I shall first consider the prospect of the intended judicial review.

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

17.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).

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application.

20.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 8^th day of April 2022

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