Case Document

100%Judiciary

HCAL 1902/2020

[2024] HKCFI 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1902 of 2020

BETWEEN
	S	1^st Applicant
	JMA	2^nd Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicants being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   Leave to apply for Judicial Review against the Board’s Decision be refused;

2.   Anonymity Order made on 22 September 2020 be set aside; and

3.   No order as to costs of this application.

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and daughter who was born in Hong Kong on 31 August 2004, aged 19, an adult by now.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 24 June 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) which rejected their claim on BOR 2 risk. The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

3.The application was filed by the applicants’ legal representative.

4.The applicants appeared before the Court on 26 July 2023. They were unrepresented.

The applicants

5.The applicants are nationals of Sri Lanka. In October 2011 and August 2012, the 1^st applicant lodged a non-refoulement claim on behalf of herself and her daughter, the 2^nd applicant herein, on the basis that she would be harmed or killed by: (i) members of the United People’s Freedom Alliance (“UPFA”) due to a land dispute; and (ii) her ex-husband stemming from the same land dispute with the UPFA.

6.In short, the 1^st applicant believes she and her daughter have a real substantial fear of harm if they are refouled to Sri Lanka for the following reasons: (i) she had lodged a civil claim in Sri Lanka against Mr Rohana who was employed by the UPFA, in respect of the fraudulent and illegal transfer of her land in Sri Lanka to Mr Sarana, who was the Deputy Minister in the UPFA; (ii) she, her parents-in-law and her sister had received death threats from Mr Rohana to remove the caveat on the subject land and to withdraw the civil claim; (iii) she had received threats from Mr Rohana that there would be an abduction attempt on her daughter in Sri Lanka; (iv) she had received death threats from her husband, who forged her signature to transfer the subject land to Mr Rohana; and (v) she had no protection from the Sri Lankan police nor state protection for herself and her daughter ([5] of the 1st Affidavit of the 1st applicant filed on 23 September 2020).

The Director’s Decisions

7.The Director considered the applicants’ claims 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 Notice of Decision dated 31 December 2015 (the “Director’s First Decision”), the Director dismissed their claim on Torture risk, BOR 3 risk and Persecution risk. On his own initiative, the Director invited the applicants to submit further materials for consideration under BOR 2 risk. The applicants gave no new facts in support of their claim. For reasons set out in the Notice of Further Decision dated 31 May 2017, the Director held that the applicants’ absolute and non-derogable rights would not be violated if refouled to Sri Lanka and dismissed their claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicants appealed the Director’s First Decision to the Board on 13 January 2016 and the appeal was dismissed on 23 May 2017 (the “Board’s First Decision”) which the applicants did not appeal. They appealed against the Director’s Second Decision to the Board on 14 June 2017 and an oral hearing was conducted on 23 July 2019, during which the applicants were legally represented by duty lawyer and the 1st applicant elected to give evidence.

10.In the first instance, the Board noted that the basis of the applicants’ claim under BOR 2 risk in the Director’s Second Decision is identical to their previous claim under the Director’s First Decision which has been duly considered by the Board [5]. During the hearing, the applicants produced a document from a Sri Lankan magistrates court in support of their civil claim against Mr Rohana for the alleged wrongful transfer of the subject land [7]; and they again contended that they would be easily located by Mr Rohana/Mr Sarana/the ex-husband/ due to the identity registration system in Sri Lanka [8]. However, the Board held that the registration system did not assist the applicants [8]. It also held that despite Mr Sarana being in legal trouble with the police, the applicant’s belief that he would not be in custody for a long time was pure speculation [9]. Based on updated objective and credible origin of country information (“COI”), the Board further found it would be nearly impossible for the perpetrators to track down the applicants in Sri Lanka. The Board therefore found the applicants had failed to substantiate their claim that they will be at risk of losing their lives under BOR 2 risk if they return to Sri Lanka.

11.In the circumstances, the Board dismissed the applicants’ appeal against the Director’s Second Decision and the same was confirmed on 24 June 2020.

Application for leave to apply for judicial review

12.The applicants’ legal representative filed Form 86 on 23 September 2020 for leave to apply for judicial review of the Board’s Decision.

13.The applicants’ legal representative had submitted the grounds in support of the applicants’ application as set out below.

(1)   The Board failed to take into account relevant considerations with respect to the heightened personal risk of arbitrary deprivation of life, including but not limited to the applicants’ publicity in engaging court proceedings and media coverage.

(2)   The Board erred in assessing the applicants’ BOR 2 risk by ignoring the positive duty of Sri Lanka government to protect the right of life of its citizens.

(3)   The Board failed to assess the applicants’ BOR 2 risk on a cumulative basis.

(4)   The Board misdirected itself in law and/or failed to apply the correct approach as to the standard of proof borne by the applicants.

(5)   The Board failed to investigate and/or take into account of and/or accord appropriate weight to relevant country of origin information (“COI”) by cherry-picking COI which favours state protection of women and children in Sri Lanka.

(6)   The Board misdirected itself in law and/or failed to engage the proper approach in assessing the availability of state protection.

(7)   The Board was unreasonable in accessing the availability of internal relocation alternatives by, inter alia, ignoring the fact that the 1^st applicant’s dispute with her persecutors has been publicized by national and international press.

14.The applicants then applied for leave to amend their Form 86 and leave was granted.

15.In the amended Form 86, the applicants had set out detailed grounds in support of their applications. There are 3 grounds:

(1)   The Board failed to engage in the proper approach in assessing the applicants’ personal connection to BOR 2 risk, including the Board cherry-picked COI in relation to the availability of state protection;

(2)   The Board erred in law in assessing internal relocation alternatives by, inter alia, ignoring the fact that the 1^st applicant’s dispute with her persecutors has been publicized by national and international progress; and

(3)   The Board misdirected itself in assessing her daughter’s (the 2^nd applicant’s) non-refoulement claim without separate consideration for the child-specific issue, contrary to Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020.

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

17.The Court will bear in mind that the Board’s Decision 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.It is clear that the applicants were legally represented before the Board. The fear that the minor’s interest was not put to the Board because of lack of legal representation as held by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 does not apply to the present case.

20.Even if the case were referred to the Board for re-consideration, the 2^nd applicant is now of age. The Board is duty-bound to assess her situation on the date of the hearing, as held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, CJ Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ. 21 December 2012

“176. …the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.”

21.The grounds under paragraph 13 are similar to those grounds under paragraph 15. Ground (7) under paragraph 13 is the same as ground (2) under paragraph 15.

22.Ground (1) to ground (6) under paragraph 13 are the applicants’ opinions or general assertions or propositions of the law without any concrete evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

23.As to the grounds under paragraph 15, ground (1) is the general assertion. In Form 86, the applicants have raised that the Board had cherry-picked COI in relation to the availability of state protection. This is within the province of the Board as held by the Court of Appeal in Re: Kartini. This Court should not interfere with the Board’s decision.

24.The applicants complain that the Board erred in law in its assessment of relocation alternative as it failed to discuss the alternative with them and also failed to suggest any alternative for their relocation. The Board had set out a list of cities in Sri Lanka with the populations therein, just to show that it would be quite impossible for their enemies to locate them among the huge number of population in the cities. Now the 2^nd applicant is of age. It will be much easier for the 1^st applicant to find a place for her to settle down safely. There is nothing in this point.

25.Ground (3) fails as the 2^nd applicant was legally represented before the Board and now she is of age. See paragraph 19, supra.

26.Before me, the 1^st applicant asked me to re-consider their cases as she wants her daughter to stay in Hong Kong to start her life again. The 2^nd applicant produced a letter from the Baptist University offering to admit her to study in the University. However, I do not consider these are valid grounds in support of their non-refoulement claim or to challenge the Board’s Decision.

27.Those grounds raised by the applicants are not valid to challenge the Board’s Decision. The applicants therefore fail to show that they have any realistic prospect of success in their intended judicial review against the Board’s Decision.

CONCLUSION & DISPOSITION

28.I refuse to grant leave to the applicants to apply for judicial review against the Board’s Decision. Accordingly, I dismiss their joint application.

29.The anonymity order made on 22 September 2020 be set aside.

30.There be no order as to costs of this application.

Dated the 12^th day of April 2024

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicants: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 12/4/2024 S and JMA Applicants’ ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/4/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2938/16/1/61/S64; USM 2939/16/1/62/S65; BOR 751/17/6/68/S20; BOR 752/17/6/69/S21 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9000186/16 (formerly RBCZ 418/12); RBCZ 9000187/16 (formerly RBCZ 800/12) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)