Jayakodi Mudiyanselage Thamara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1709/2019

[2024] HKCFI 2394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1709 OF 2019

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decisiondated 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing.  She appeared before the Court on 19 August 2024.

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, aged 42, is a national of Sri Lanka. She last arrived in Hong Kong to work as a foreign domestic helper on 7 January 2012, but her employment contract was prematurely terminated in March 2012. The applicant was arrested by the police on 8 July 2012 for overstaying and for theft. She made a torture claim on 25 July 2012, which was rejected on 14 November 2012. On 15 March 2018, the applicant made a further non-refoulement claim on all applicable grounds other than Torture risk^[1]. The claim was made on the basis that, if refouled, she would be harmed or even killed by a Mr Dissanayake because she failed to give him money when he asked for it.

5.According to the applicant, she first met her boyfriend who worked for the government in May 2008. Mr Dissanayake was a friend of her boyfriend and was also a gangster. The applicant claimed Mr Dissanayake was jealous of her boyfriend. In 2010, there were rumours that the applicant’s boyfriend misappropriated funds. In August 2011, the applicant’s boyfriend and Mr Dissanayake gave a million of Sri Lankan Rupees to the applicant for safe-keeping.  A week later, her boyfriend came alone and took the money back.  After a week, the applicant was informed by her boyfriend’s family that her boyfriend was killed.  They suspected that Mr Dissanayake was the killer because of his long discontentment towards the applicant’s boyfriend.  A report was filed with the police, who then tried to arrest Mr Dissanayake, but were unable to find him.

6.Three weeks later, Mr Dissanayake came to the applicant’s home and asked for the return of the one million Sri Lankan Rupees. Although the applicant told Mr Dissanayake that the money had been collected by her boyfriend, he did not believe her and demanded payment within a week.

7.After about two weeks, the applicant started to receive phone calls from Mr Dissanayake and his friends, threatening that she would be killed if she did not hand over the money. This continued for about four months. When the applicant’s elder brother went to see Mr Dissanayake to resolve the issue, he was assaulted. In order to protect the applicant, the applicant’s parents sent her away to her paternal aunt, where she stayed for 1-2 months until she got the job in Hong Kong.

8.The applicant maintained contact with her family while in Hong Kong.  In February 2012, her mother told her that Mr Dissanayake had set fire to their home and their house was burnt down.  Although the case was reported to the police, no action was taken by them. In the meantime, Mr Dissanayake had also sent his underlings to the applicant’s hometown to look for her.

9.The applicant was of the view that she could not seek help from the police because they were corrupt and would only assist people with power and money. The applicant also considered internal relocation not viable because once she went back to her hometown to visit her family, Mr Dissanayake would be alerted immediately.

10.Details of the applicant’s story can be found in paragraph 10 of the Director’s Decision dated 18 April 2018 (“the Director’s Decision”).

The Director’s Decisions

11.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”) (“Persecutionrisk”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that there were some illogical and contradictory details in the applicant’s evidence.  In particular, given that her boyfriend was working for the government at the time when he was killed, there was no reason why Mr Dissanayake would have the backup from the police, who was merely a gangster [18].

13.In any event, (i) the low intensity and frequency of past ill-treatment from Mr Dissanayake indicated a low future risk of harm upon the applicant’s return to Sri Lanka [20]-[21]; (ii) state protection would be available to her [22]; (iii) internal relocation would be viable [23]-[25] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31] or Persecution risk [32]-[36].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board.  On 13 February 2019, the Board conducted an oral hearing.

15.During the hearing, the applicant told the Board that Dissanayake was her boyfriend’s second name and that she could not remember the name of the gangster that threatened her [45]. She was also inconsistent as to (i) whether the gangster was at the scene when her boyfriend passed her the one million Sri Lankan Rupees; (ii) whether the police took any action after the suspected murder case of her boyfriend was reported to them and (iii) the time when the applicant’s house was burnt down [47]-[49]. Furthermore, the Board noted that the applicant had already obtained a passport even before she received the one million Sri Lankan Rupees from her boyfriend [50].

16.The Board considered that the applicant was not a witness of truth and that no weight could be attached to her claim that she was at real risk of harm from a gangster or his underlings. The Board found there to be no real risk that the applicant would be seriously harmed or killed upon return to Sri Lanka [51].

17.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [12]-[17], [52]-[55]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

18.The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.In her affirmation in support of her application, the applicant said she cannot accept the Board’s Decision because the Board only presumed that she will be safe, without considering the facts. If she returns to Sri Lanka, she will be killed by her enemy.

DISCUSSION

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant only asked me to re-consider the Board’s Decision.

22.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.”

23.For the reasons above, the Board found that the applicant was not a witness of truth and it rejected her evidence.

24.The applicant has raised no valid ground to challenge the Board’s Decision. The applicant therefore has no factual basis in support of her claim.

25.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

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

The applicant appeared in person.