Hangili Gedara Imalka Priyadarshanie v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 935/2019

[2022] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 935 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 his 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 12 April 2005 and was permitted to stay until 12 May 2005. However, she did not depart and had overstayed since 13 May 2005. On 17 April 2007, she surrendered to the Immigration Department. She also claimed that she had lost her passport two days after her arrival. On 19 March 2007, she made a torture claim. On 22 January 2009, she gave birth to her daughter in Hong Kong. For the present purpose, her daughter did not seek to challenge the decisions of the Director and the Board.

5.The applicant’s torture claim was rejected on 10 October 2013. Nevertheless, through her duty lawyer, she made a subsequent torture claim on 3 December 2013, which was also rejected on 21 February 2014 (“Torture Claims”).

6.On 4 March 2014, she lodged a non-refoulement claim. On 18 August 2016, she also raised a non-refoulement claim for her daughter. Having considered the documents, the Director considered that there was a significant change of circumstance which might give the applicant and her daughter’s claims under torture risk a realistic prospect of success. As a result, the Director proceeded to assess the applicant and her daughter’s non-refoulment claims under all applicable grounds [7].

7.The applicant and her daughter’s non-refoulement claims were made on the basis that, if refouled, they would be harmed or killed by (i) underground gangsters whom the applicant’s 1^st ex-husband had offended; (ii) her 1^st ex-husband; (iii) her 2^nd ex-husband; (iv) her abandoned son; (v) the Buddhists in Sri Lanka. Her daughter’s claim relied entirely on hers.

8.The applicant’s stories were canvassed in materials contained in her Torture Claims and those in her non-refoulement claim form. They can be summarized as follows:

(1)  Fear from her 1^st ex-husband and the related gangsters: in 2002, she married her 1^st ex-husband who was a police officer. In short, while her 1^st ex-husband was on duty, there were two incidents involving the death of two suspects. One of the deceased called Ranjith was said to be an underworld leader and thus the underworld gangsters started to revenge against the police, in particular the applicant’s 1^st ex-husband. They threatened, assaulted and once gang raped the applicant for her 1^st ex-husband’s whereabouts. Out of fear, the applicant left for Hong Kong for protection;

(2)  Fear from her 2^nd ex-husband: while the applicant was in Hong Kong, she married her 2^nd ex-husband in 2009. In 2012, she suspected that he had an affair. When she followed him to the mistress’s house, she argued with him on the spot and was assaulted by her 2^nd ex-husband. Her 2^nd ex-husband started to physically abuse her until police intervention. While they were able to live peacefully after that, in 2013, they resumed the arguments and her 2^nd ex-husband threatened that, if she returned to Sri Lanka, he would have someone kill her. She felt unsafe either in Hong Kong or back in Sri Lanka. The threats and assaults led the applicant to report to the police again. Her 2^nd ex-husband was then arrested and charged. Later, the applicant was told that her 2^nd ex-husband was deported back to Sri Lanka in April 2015. He further threatened to kill her as he found out about her relationship with an Indian Muslim called Riaz;

(3)  Fear from her son: the applicant claimed to give birth to her son out of wedlock in 1988. She left her son when he was one-year-old. In May 2017, she received a phone call of death threat from her son as she deserted him.

(4)  She also claimed to fear that her 1^st ex-husband would kill her if refouled as she learnt that he was very angry after she requested a divorce. In addition, she feared that the Buddhists would kill her because of her relationship with a Muslim.

(5)  The details of her claim are set out at paragraph 13 of the Notice of Decision dated 30 August 2017 by the Director (the “Director’s Decision”) and paragraphs 28 to 39 of the Board’s Decision described below.

The Director’s Decision

9.The Director considered the applicant’s claim 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.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

10.By way of the Director’s Decision, the Director dismissed their claims. The Director found that the level of risk of harm upon their refoulement was assessed to be low because (i) insofar as the perceived harms from the 1^st ex-husband was concerned, there was no foreseeable real risk of harm, no injuries attaining the sufficient level of severity and no indication of state involvement. As to the claimed fear of harm from her 2^nd ex-husband, the applicant’s conducts were inconsistent with someone who genuinely needed protection. Meanwhile, her 2^nd ex-husband had not shown real intention of killing her and there was also no indication of state involvement in the said dispute. Further, her assertions that her son and the Buddhists would harm or kill her were also speculations [29]; (ii) state protection would be available to them [30]; and (iii) internal relocation was also a viable alternative [31].

The Board’s Decision

11.The applicant and her daughter appealed the Director’s Decision to the Board. On 13 November 2018 and 7 December 2018, the Board scheduled oral hearings for their appeals, during which the applicant acted for herself and on behalf of her daughter [6].

12.The Board considered their claims and the available documents, including those submitted for the applicant’s Torture Claims. It examined the relevant country of origin information (“COI”) and made the following findings. The Board refused to accept that Ranjith was connected with the underground gangsters or that the applicant’s 1^st ex-husband was involved in Ranjith’s alleged death. It also made no sense that the applicant could not locate her 1^st ex-husband after the alleged incidents but her sister could when she filed the divorce paper. Further, while the applicant submitted court documents about the prosecution of her 2^nd ex-husband, the case result showed that the magistrate disbelieved her evidence. The applicant’s assertion that her 2^nd ex-husband was influential back home was inconsistent with her statement that her 2^nd ex-husband had been working in Hong Kong for over 12 years. Besides, her claimed fear of harm from the Buddhists and her son were vague and inherently implausible [63]. As a result, the Board found the applicant to be an untruthful witness.

13.In considering the individual source of fear, the Board found that the applicant’s perceived fear of harm from the underground gangsters was not supported by the COI [64]-[71]. It refused to believe that her 1^st ex-husband disappeared [72]-[75]. The Board also noticed that the documents filed in support of her claimed fear of harm from the 2^nd ex-husband all concerned one incident only but they did not support the applicant’s perceived risk of harm from her 2^nd ex-husband [73]-[87]. Further, her claimed fear of harm from the Buddhists also did not sit well with the relevant COI [89]-[97]. As to the illegitimate son, there was no evidence to support his existence and, in any event, it was illogical that he would threaten to kill her [96]-[98]. In addition, the Board also found that the applicant provided inconsistent accounts about her contact with her mother and sister [99]-[107].

14.For the aforesaid reasons, the Board found that the applicant failed to establish her non-refoulement claim as, even on the applicant’s own evidence, there was no real risk of harm [112]-[122].

15.In any event, the Board considered that state protection and internal relocation were both viable alternatives [123]-[156];[204]-[220]. In these circumstances, the Board rejected their claims and dismissed their appeals.

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

16.The applicant has filed Form 86 dated 8 April 2019 for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, the applicant said, in gist, she was tortured and beaten by her husband in Hong Kong. If she were in Sri Lanka, she would have been killed by her husband without anybody knowing it as there were many unknown deaths in Sri Lanka. Her daughter was born in Hong Kong. She only speaks Cantonese and English. She wants to stay with her daughter in Hong Kong.

DISCUSSION

18.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).

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

20.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.”

21.The Board has given reasons in support of its Decision. Those grounds above are not valid reasons to challenge the Board’s Decision.

22.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.

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

CONCLUSION

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

Dated the 7^th day of June 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