Niwunhelle Herath Mudiyanselage Priyani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1155/2019

[2024] HKCFI 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1155 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 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 entered Hong Kong illegally on 22 January 2015. On 24 April 2015, she surrendered to the Immigration Department. On 31 December 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by two members of United National Party (“UNP”), namely, Nalin Jeewantha Don and Mohammed Rishpan because of monetary disputes.

5.According to the applicant, she operated a trading business and an employment agency. In 2013, her businesses had cash flow problems and thus she took out a loan from Jeewantha. Later, when she was in a business trip in Singapore, she met an agent called Rana who claimed to be able to arrange employments for workers interested in working in Australia. Jeewantha and his men joined the plan and Rana undertook all the necessary arrangements.

6.In around May 2013, Rana arranged Jeewantha and his men, as well as the applicant to Singapore, waiting for the connecting flight to Australia. The agency fee of around USD 33,000 was paid by Jeewantha to Rana. In the receipt, the sum was USD 50,000 which was said to include the applicant’s loan. Yet, having stayed in Singapore for ten days, they were told by Rana that they could not board on the flight and had to return to Sri Lanka. Their second attempt to go to Australia also failed in August 2013. Worse still, Rana fled with all the money. The applicant had no option but asked Jeewantha to give her six months to make another arrangement. However, she did not have any money to make the new arrangement nor did she find Rana.

7.Nothing eventful happened in these six months. In mid-September 2014, Jeewantha visited the applicant’s house and posed death threats. Thereafter, she did not encounter Jeewantha before she left for Hong Kong. However, she learnt that Jeewantha had been prying her whereabouts. Out of fear, the applicant fled to Hong Kong for protection. While she was in Hong Kong, she learnt that Jeewantha threatened her elder daughter but she confirmed that he did not hurt her family members. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 1 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the feared ill-treatments were unlikely to materialize based on the circumstances [15]-[24]; (ii) state protection would be available to her [25]-[27]; and (iii) internal relocation was a viable option [28]-[31].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 17 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [31].

11.The Board recapped the applicant’s claim, her personal background and her oral evidence at the hearing [5]-[64]. Having considered the evidence, the Board expressed concerns over the reliability of her evidence [69]. In particular, the Board found that the applicant provided vague and inconsistent evidence about Jeewantha’s background [70]; that she also gave confusing and inconsistent evidence about the agent she used in Singapore [71]; that her evidence about the chronology of events was also confusing and inconsistent [72]-[74]; that her evidence about the travel arrangement to Australia was also unconvincing [76]-[79]; that it was implausible that Jeewantha, a wealthy and successful business man as claimed, would pay the applicant and Rana to work in Australia as a worker [79]-[80]; that it was unreasonable that Jeewantha would wipe the applicant’s debt off because of the travel arrangement [81]; that the details of the travel arrangement were not persuasive [82]-[84]; that it was difficult to understand why the applicant would spend eight months traveling in Singapore and Malaysia to locate Rana without considering the costs [85]-[86]; that the conducts of Jeewantha and his men had shown no intention to cause harm or even kill the applicant [87]; that the inherent inconsistencies in her claim undermined her credibility [88]-[90]; that her responses and explanations about the existence and availability of supporting documents were far from convincing [91]; and that her evidence kept changing when met with inquiries [92].

12.In light of the above findings, the Board refused to accept the applicant as a credible witness [94]. It thus rejected the applicant’s claim about the monetary disputes and the claimed risk of harm and dismissed her claim [95]-[103]. Therefore, her appeal was dismissed.

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

13.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant said she is not satisfied with the Board’s Decision because she could not submit her supporting documents and she will try her best to obtain the documents from her country.

DISCUSSION

15.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).

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

17.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.”

18.The Board, for the reasons given in paragraph 11 above, had rejected the applicant’s evidence on the facts of her case. In view of the Board’s reasons, her credibility does not depend on documentary evidence. She does not have any valid reasons to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 4^th day of January 2024.

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