Hattanage Moleen Ramani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1405/2019

[2024] HKCFI 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1405 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 17 May 2018 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”), her application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Sri Lanka. She entered Hong Kong as a visitor on 7 August 2004 and was permitted to remain until 6 September 2004. She did not depart and had overstayed since 7 September 2004. On 25 September 2006, she was arrested by the police. On 8 January 2007, she raised a torture claim which was subsequently rejected. On 12 September 2013, she lodged a non-refoulement claim and her claim was thus assessed on all applicable grounds other than that on Torture risk[1]. The applicant claimed that, if refouled, she would be harmed or killed by the underworld gangsters, members of the police force and/or members of the Sri Lanka Army for the purpose of extracting information.

5.According to the applicant, she met her cohabitant Hewagamage Sunil (“Sunil”) in May or June 1983. Sunil was an underground gangster who worked for the United National Party (“UNP”). He had been proposing to marry the applicant but she and her family members refused because of his background. However, one day in July 1984, Sunil raped her. Feeling ashamed, the applicant cohabited with Sunil. During their cohabitation, the applicant was mentally disturbed by Sunil’s complicated background and his enemies. In January 1986, the applicant left for Kuwait.

6.While the applicant was in Kuwait, in 1988, her parents’ house was set on fire by Sunil’s opponents. Her family members reported the arson to the police. Yet, the police investigated and arrested her mother and younger brother because they claimed to find explosive in the house.

7.In December 1988, the applicant returned to Sri Lanka. She was located by Sunil’s enemies and threatened by them. On 18 June 1989, the applicant’s father died from a heart attack. Later, the applicant departed to Dubai for employment.

8.In 1997, there were further harassments from the Sri Lanka Army members. On 8 February 1997, the applicant’s brother-in-law was tortured to death by the army soldiers. He was brutally tortured for the applicant and Sunil’s whereabouts. In June or July 1997, the applicant returned to Sri Lanka and went into hiding.

9.In December 1997, she left for Cyprus. She stayed from 1997 to 2004. She encountered no problems whenever she returned home to renew her visa. On 19 May 2000, Sunil was killed by the police and the underground gangsters. Nevertheless, his enemies continued to search for the applicant. Out of fear, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 30 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of ahrm [15]-[18]; (ii) state protection would be available to her [19]-[24]; and (iii) internal relocation was a viable option [25]-[29].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 30 January 2019, the Board conducted an oral hearing for her appeal.

13.The Board recapped the applicant’s claim [9]-[39] and summarized her oral testimonies [40]-[44]. Having considered the evidence and the country of origin information (“COI”) [66]-[76], the Board found that the applicant’s case consisted of bare assertions and hearsay information with no objective proof [78]; that the vagueness and sheer number of inconsistencies undermined her overall credibility [79]-[92]; and that internal relocation was a viable option [99]-[100].

14.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

15.The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.The applicant has raised no specific ground in support of her application.

DISCUSSION

17.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).

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

19.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.”

20.For the reasons given in paragraph 13, the Board rejected her evidence.

21.The applicant has raised no valid ground to challenge the Board’s Decision.

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

CONCLUSION

23.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated 5^th day of April 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