Rupasingha Arachchige Shiroma Tharangani v. Torture Claims Appeal Board

HCAL 335/2019

[2023] HKCFI 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 335 of 2019

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of Sri Lanka who arrived in Hong Kong on 4 March 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 March 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 6 June 2009, she did not depart and instead overstayed in Hong Kong, and almost 6 years later on 9 February 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Sri Lanka she would be harmed or killed by the murderers of her brother for having witnessed the murder. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Maradana, Colombo, Sri Lanka. After leaving school she married her husband and raised a family with 2 children in her home district.

3.In 2000 her brother ran a shoe business near her house where he would from time to time come into conflicts with the local drug dealers by reporting to the police of their drug dealing activities.

4.One day in July 2005 while her brother was chatting with his friends in front of her house, some drugs dealers appeared and started a fight with her brother, and when the Applicant went out of her house to see what happened, she saw her brother being attacked by those drug dealers and fell dead on the ground. The Applicant was shocked and also fainted.

5.A few days later some but not all of her brother’s murderers were arrested by the police, but as the Applicant was fearful that the remaining murderers would come after her to silence her as a witness to the murder, she moved with her husband and children back to his native place in Akurassa.

6.However, several months later in January 2006 one of the murderers who managed to escape from the police came to the Applicant and threatened her not to assist the police in their investigation or else he would kill her. As a result, the Applicant became fearful for her life and decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did on 3 March 2009 when she departed Sri Lanka for Hong Kong, but subsequently when her employment contract was terminated, she was afraid to return to Sri Lanka and so she overstayed in Hong Kong, and almost 6 years later she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 26 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her brother’s murderers upon her return to Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to deter her from assisting the police in their investigation of the murder prior to her leaving the country, that after all these years it is not accepted that there would still be any adverse interest in the Applicant who had never since provided any assistance to the police or acted as a witness in any court trial against those drug dealers, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Kandy where it would be difficult if not impossible for anyone to locate her.

9.On 3 April 2018 Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 16 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from the drug dealers who murdered her brother almost 15 years ago but found no evidence of any real intention of them to seriously harm or kill her or that they would still be any adverse interest in her after all these years when she had left the country in 2009 without assisting the police or acting as any witness in any court trial that it is not accepted that there would still be any adverse interest in her, and that in any event as a murder witness she would be entitled to state or police protection upon her return to Sri Lanka if threats from those drug dealers still persist to negate any such risk that her claim for non-refoulement protection failed on all applicable grounds.

11.On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 3^rd day of January 2023.

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