Randeni Mudalige Indunil Damayanthi Kumari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1157/2019

[2024] HKCFI 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1157 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 26 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 as a foreign domestic helper on 19 September 2015 and was permitted to remain until 19 September 2017 or two weeks after the termination of the employment contract. Her employment contract was prematurely terminated on 27 October 2015. However, she did not depart and had overstayed since 11 November 2015. On 17 November 2015, she surrendered to the Immigration Department. On 1 April 2016, she lodged a non-refoulement claim. The process of her non-refoulement claim was resumed upon receiving the applicant’s written submission on 20 October 2017. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband’s father, Sooriyaarachchi Kankanamalage Amaradasa (“SKA”), her loan shark, Weerakkodi Pathirannahalage Chandrasena (“WPC”) and various banks.

5.According to the applicant, she secretly married her husband Kumara. However, in 2010, her father-in-law SKA knew about their marriage and was furious. SKA had drinking problem. Whenever he got drunk, he would threaten the applicant. There were many incidents which the applicant was unable to recall. The most serious one happened in 2013 when SKA threatened to kill the applicant with a knife. Kumara protected the applicant but sustained injuries.

6.Unable to tolerate SKA’s harassments, Kumara decided to start a business so that they could leave their home village. As a result, the applicant took out a loan from WPC who was influential and well-connected with the political party. Nevertheless, in 2011, their business suffered losses and they were unable to repay the loan. From 2012 to 2013, WPC started to chase the applicant for repayments with death threats. In order to repay the loan, the applicant came to work in Hong Kong. Before her departure, they also took out loans from the local banks. However, as her employment contract was prematurely terminated, she was unable to settle the loans. While she was in Hong Kong, she learnt that WPC and the banks had been looking for her. Meanwhile, she was told that Kumara was assaulted by WPC. Out of fear, the applicant sought protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the absence of ill-treatments indicated an unlikelihood of future risk of harm [15]-[17]; (ii) state protection would be available to her [18]-[24]; and (iii) internal relocation was a viable option [25]-[29].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 25 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter in Sinhala and English languages [11].

10.The Board recapped the applicant’s claim and her personal background [20]-[22]. It also summarized the applicant’s oral evidence at the hearing [27]-[56]. Having considered the evidence, the Board refused to accept that the applicant would face any risk of harm upon refoulement [56]. In particular, the Board found that the applicant’s evidence was inconsistent, vague and constantly changing. She was inconsistent about her last contact with Kumara; the assaults and injuries sustained by Kumara; Kumara’s work and his business; and her own work experience. The Board also found that her evidence on the secrecy of her marriage with Kumara and on when Kumara’s family found out about their marriage was implausible. It therefore cast doubt on her claim that their secret marriage was the cause of her fear of harm from SKA [41]. In addition, the Board found that the applicant’s evidence about her own family was inconsistent, which further undermined her credibility [42]. It further rejected that SKA had any intention to cause harm or even kill the applicant [43].

11.As to the unpaid loans, the Board explored in details with the applicant about the details of WPC and the local banks [44]-[53]. Nevertheless, after considering the evidence, the Board found that the applicant’s evidence in this regard was problematic and full of inconsistencies [54].

12.In light of the aforesaid, the Board rejected the applicant’s claim on the basis of lack of credibility and dismissed her appeal.

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 that her enemies had injured her husband and broken his leg because of her.

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 above, had rejected the applicant’s evidence on the facts of her case. The grounds in paragraph 14, supra, are not 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