Majeed Nona Rafeeda v. Torture Claims Appeal Board

HCAL 894/2019

[2023] HKCFI 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 894 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 (counsel for) the Applicant in open court / the Applicant being absent 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 58-year-old national of Sri Lanka who last arrived in Hong Kong on 23 February 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 December 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 28 September 2008, she did not depart and instead overstayed in Hong Kong, and more than 7 years later on 18 January 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to the Sri Lanka she would be harmed or killed by the family of a local Buddhist boy named Malik for influencing him into converting his religion to Islam. She was subsequently released on recognizance pending the determination of her claim.

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

3.Soon she found her husband to be a useless drunk and left him to move with her son to stay with her elder sister in Wellampitiya, and in order to support her son, she went to Saudi Arabia in 2004 to work as a domestic servant, during which she was taught by her employer the religion of Islam and the Koran, and eventually converted to Islam and became a Muslim.

4.In 2007 she returned to Wellampitiya in Sri Lanka, and was invited by the Imam to teach the Koran to children in the local mosque on weekends, but which soon caused some resentments from the local Buddhist community which were concerned about her influence over the religious decision of their children.

5.Things eventually turned worse when one of her students by the name of Malik later converted his religion from Buddhism to Islam, for which his parents became furious and blamed the Applicant for influencing their son, and later when Malik had gone missing, his parents confronted the Applicant accusing her of hiding their son, and when she denied to have anything to do with it, they slapped her on the face and threatened to kill her if their son did not return soon.

6.Shortly after the incident while she was on her way home from the mosque, the Applicant was struck from behind by a vehicle and fell onto the ground, and when she saw 3 men emerging from the vehicle carrying knives in their hands, she immediately fled from the scene and hid in her neighbour’s place, and when she later heard from her family that some men had come to her home looking for her, she feared that they were sent by Malik’s family to kill her, and so she fled from her home district for Galle and Kathargara, and as she feared that it was still not safe to remain in Sri Lanka, she therefore applied to come to Hong Kong to work as a foreign domestic helper, which she eventually did on 23 February 2008, but when her employment contract was subsequently terminated on 28 September 2008, she was afraid to return to Sri Lanka, and so she overstyade in Hong Kong, and more than 7 years later on 18 January 2016 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 8 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 February 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 ground for believing that there will be any real risk of her being harmed or killed by Malik’s family upon her return to the Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that in any event her problem with Malik’s family was a private disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Sri Lanka, 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 22.4 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 Trincomalee where it would be difficult if not impossible for anyone to locate her.

9.On 12 March 2018 the 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 21 November 2018 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 15 March 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim in particularly as to the central aspects of her case including how she came to be taught the Islam religion and the Koran while working in Saudi Arabia, how upon her return to Sri Lanka that she was invited to teach the Koran in the local mosque, and how she managed to escape from the alleged attack by 3 unknown men before she left the country, that the credibility of her claim was further undermined by her failure to raise it upon first arriving in Hong Kong until almost 8 years later to seek protection in Hong Kong, and that it concluded that she was not a witness of truth and that she had fabricated her account of events so as to create the basis for her overstaying in Hong Kong that it did not accept that she would face any form of harm upon her return to Sri Lanka that her claim for non-refoulement protection failed on all applicable grounds.

11.On 2 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the decisions of the Director and the Board were “Wednesbury unreasonable” in that a reasonable decision maker upon taking into account factors that should have been considered and ignoring factors that should not have been considered would ever consider arriving at such a decision;

(2)  That the Director’s consideration of the factual matters presented by the Applicant and relevant COI to assess (i) the likelihood of the Applicant’s feared treatment materialising, (ii) the availability of state protection and (iii) the expressed opinion that relocation alternatives within her country were available and reasonable was unfair and unreasonable; and

(3)  That the Board’s decision that the Applicant’s credibility was flawed to the extent that nothing she had said concerning her experiences that had led to her seeking to leave her country (and her fear of what would happen if she returned) could be accepted and the consequent effect on her claims was unfair and unreasonable.

12.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they would apply to her case or how the Director or the Board had erred in their decision, or in what way were their decisions unfair or unreasonable, or how did the Director fail to take into account of relevant COI or how did the Board err in reaching its conclusion regarding the Applicant’s credibility. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13.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 her 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.

14.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 58-90 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 to challenge the finding of the Board.

15.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

16.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.

17.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 20^th day of February 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