Perera Addin Priyangani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1144/2019

[2023] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1144 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 April 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 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 last entered Hong Kong on 6 August 2015 as a foreign domestic helper. However, her employment contract was prematurely terminated in November 2015. On 17 November 2015, she applied for an extension of stay as a visitor, which was granted. She was permitted to stay until 23 November 2015. However, she did not depart and had overstayed since 24 November 2015. On 11 December 2017, she was arrested by the police. On 13 December 2017, she lodged a non-refoulement claim. Her claim was based on a fear of risk of harm from her creditors, Sudda and Anura Silva, due to a loan dispute.

5.According to the applicant, in order to facilitate her overseas employment, she borrowed a loan from Sudda in January or February 2014. However, after the applicant started her employment in Hong Kong, she never sent the money to Sudda to repay the loan. From mid-February 2014 to mid-October 2014, she claimed that Sudda had been harassing her through phone calls, threatening to rape or kill her if she did not repay the loan. He also threatened the applicant’s friend.

6.In November 2014, the applicant returned to Sri Lanka after her employment contract was terminated. Between November 2014 to December 2014, Sudda threatened her in person. She further clarified in the screening interview that she was raped by Sudda once in December 2014. She also stated that, from November 2014 to August 2015, Sudda had been posing verbal threats at her.

7.In January 2015, in order to repay Sudda and to pay for her expenses to work in Hong Kong again, she took out another loan from Anura. The applicant claimed that, while she was working in Hong Kong, Anura also called her and threatened to kill her if she did not repay quickly.

8.As she heard from her friends that the creditors were still looking for her and that the creditors were powerful and politically connected, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 16 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC 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 the applicant’s claim. In elaboration, the Director found that (i) it was not accepted that the applicant’s claimed risk of harm from the creditors were real and imminent [15]-[17]; (ii) state protection would be available to her [18]-[21]; and (iii) internal relocation was a viable option [22]-[23].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 20 November　2018, the Board conducted an oral hearing for her appeal.

12.Having considered the evidence, the Board made the following findings. The Board refused to accept that she was raped by Sudda as she was hesitant in her replies and her evidence lacked authenticity. It also rejected that Sudda had threatened her either verbally or in person [15]-[22]. Meanwhile, the Board considered that the alleged threats from Anura, after the applicant ceased contact with him, were passed along to the applicant by her friends, which were hearsay evidence. Since there was no surrounding evidence which indicated that the hearsay evidence was reliable, the Board refused to accord any weight to it. Further, the Board found that, the conducts of both Anura and the applicant showed that Anura had no intention to actually harm or kill the applicant [23]-[29].

13.In any event, state protection and internal relocation were both available to the applicant [30]-[35]. As a result, the Board rejected the applicant’s claim and dismissed her appeal.

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

14.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of her application, the applicant said that her life is not safe as the money-lenders are still looking for her.

DISCUSSION

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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.For the reasons given in paragraph 12, supra, the Board rejected the applicant’s evidence. It further found that state protection and internal relocation are viable options for her in Sri Lanka.

20.The applicant has raised no valid ground to challenge the Board’s Decision. 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 grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 9^th day of November 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