Wisidagamage Dona Nadeeshani Rangana and Others v. Torture Claims Appeal Board

HCAL 986/2020

[2023] HKCFI 3012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 986 OF 2020

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 Applicants in open court

Order by Deputy High Court Judge Bruno Chan:

Leave for the Applicants to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Sri Lanka who arrived in Hong Kong on 23 December 2000 as a visitor with permission to remain as such up to 23 January 2001 when she did not depart and instead overstayed, and was arrested by police under a different identity almost 20 months later on 19 September 2002 for theft and was convicted with a fine, and before she could be deported she made an asylum application to the UNHCR, during which she formed a relationship with a fellow Sri Lankan man who was a Muslim and also a non-refoulement claimant, for which she later became pregnant with their first child and surrendered to the Immigration Department on 11 May 2007 when she subsequently raised a torture claim on the basis that if she returned to Sri Lanka she would be harmed or killed by her former husband for divorcing him and/or her family for marrying her present husband who is a Muslim by converting her religion from Catholic to Islam and/or persecution by the local Buddhist community due to their anti-Muslims views, and upon giving birth to her 2 children, the 2^nd and 3^rd Applicants (“A2” & “A3”), she also raised a torture claim for them on the same bases, and after their torture claims were rejected, they then sought non-refoulement protection jointly on the same bases.  They were subsequently released on recognizance pending the determination of their claim.

2.A1 was born as a Sinhalese and raised as a Roman Catholic in Alawwa, Sri Lanka.  After completing her teaching education, she married her former husband Kosala in November 2000 against her parents’ wishes as Kosala was a bad character with many troubles with the police in the past, and to avoid her family’s opposition, Kosala arranged for the 2 of them to leave the country on 23 December 2000 for Hong Kong where they subsequently overstayed, during which Kosala treated A1 badly, and eventually abandoned her in Hong Kong and returned to Sri Lanka by himself.

3.On 19 September 2002 A1 was arrested by police under a false identity for theft and was convicted with a fine, but before she could be deported, she lodged an asylum application to the UNHCR, and while released on recognizance pending the application, she met and formed a relationship with another Sri Lankan man MN who was a Muslim and also a non-refoulement claimant, and with whom she subsequently gave birth to their 2 children, A2 and A3 respectively in 2007 and 2011, and for whom A1 also raised a joint torture claim.

4.On 5 August 2009 A1 and MN registered their marriage in Hong Kong after A1 had divorced Kosala and converted her religion to Islam, but after informing her family in Sri Lanka of the same, her parents became furious over her religious conversion and threatened to kill her and her family if they return to Sri Lanka, and in 2010 when Kosala found out that A1 had divorced him in Hong Kong without his knowledge or consent, he also became furious and threatened to kill her and her family, and so after their torture claims were rejected by the Immigration Department, A1 then sought non-refoulement protection for herself and her children on the same bases, and for which she completed a Supplementary Claim Form (“SCF”) on 21 March 2018 jointly for herself and her children, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 17 May 2018 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the remaining applicable grounds other than torture risk including risk of their 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risks of harm from Kosala or A1’s family or the local Buddhist community upon their return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats or intention of any of them to harm A1 or her children for any reason other than her own bare assertions and speculations, nor is it accepted that there would still be any adverse interest in her after all these years since she left the country in 2000, that in any event these were private domestic or family disputes between them without any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working capacity to move safely with her children and her present husband to other areas of the country away from her home district in large cities such as Colombo or Kalmunai where it would be difficult if not impossible for anyone to locate them.

7.On 31 May 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 6 June 2019 with their lawyer from DLS before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board as well as evidence from her present husband MN and submissions by lawyer for the Applicants.  On 28 April 2020 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted A1’s evidence of having converted to Islam to follow her husband’s religion but found no evidence or reason for her or her children to fear any harm from either her former husband Kosala or her family over her religious conversion given A1’s own admissions at the hearing that she no longer fears of any harm from her parents, while she has had no further contact with Kosala for many years since he left Hong Kong in 2002 other than one isolated phone call in 2016 that it is not accepted that he would still have any adverse interest in her let alone in her children, that there is no evidence of any threats from the local Buddhist community ever directed against her, while relevant COI show that Muslims may have been targeted by extremist Buddhist groups for violence but as regard the frequency prevalence and nature of such attacks overall in Sri Lanka in recent years that they do not support or indicate any real risk of Muslims which constitute 10% of the population of being subjected to such serious risks or harm which are in general relatively infrequent, and that in the absence of any state or official involvement that state protection would be available to A1 and her children upon their return to Sri Lanka as well as reasonable internal relocation for them to move safely with her husband to other part of the country away from her home district such as Colombo which has the largest Muslim population in the country and with many official and voluntary Islamic organizations to which the Applicants could seek and obtain assistances and supports to aid their re-integration into life in Sri Lanka together with her fellow Sri Lankan husband and without any risk of being located that the Applicants’ claims for non-refoulement protection failed on all applicable grounds.    

9.On 25 May 2020 A1 filed a Form 86 for leave to apply for judicial review of the Board’s decision, which she subsequently with leave of the Court amended to include both of her children in the application, but no ground for seeking relief was given in their Form or in her supporting affirmation of the same date, nor was A1 able to do so at the hearing of their application other than her wish for her children to continue with their education in Hong Kong which in itself cannot form any proper or legal basis for non-refoulement protection. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

10.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.

11.In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in paragraphs 39 – 87 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of her claim as well as evidence from her husband and submissions for her and her children by their lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

12.The fact is that it has also been established by both the Director and the Board in their respective decision that the risks of harm in the Applicants’ claim if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Sri Lanka, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.I am of course mindful of the fact that A2 and A3 are still minors respectively aged 16 and 12 and are unrepresented in their application before me as so required by Order 80 rule 2 of the RHC, the fact is that they were both legally represented by lawyer from DLS in both their applications before the Director and the Board, and that there is nothing before me to indicate that the merits of their claims had not been fully or adequately advanced to and explored before the Board by their lawyer on their behalves, nor do I find any underlying or potential minor-specific non-refoulement bases for each of A2 and A3 in their personal circumstances such as illegitimacy or mixed racial or religious issues which were never raised by their lawyer or which should have or might not have been properly advanced to the Board by their lawyer as otherwise required had they not been legally represented before the Board: see Fabio Arlyn Timogan [2020] HKCA 971, and Re Jasvir Singh [2021] HKCA 53.                        

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 Applicants’ claims.

15.For these reasons I am not satisfied that there is any merits or prospect of success in the Applicants’ intended application for judicial review, and in the case of A2 and A3 the non-compliance with RHC Order 80 rule 2 shall be treated as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh supra, and Paglingayen Rosalyn Ringor [2021] HKCA 84, I accordingly refuse the Applicants’ leave application.

Dated the 20^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