Weerasekara Mudhiyansele, Sujatha Kanthi Ekanayake v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2285/2019

[2024] HKCFI 3350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2285 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 26 July 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 23 July 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.As no request for a hearing was made, this court will determine the Leave Applicant without a hearing: O.53, r.3 (3) of the Rules of the High Court.

3.In the Form 86, the applicant named the “Immigration Department” as the proposed respondent and the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

4.The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.The applicant came from Sri Lanka. She arrived in Hong Kong as a visitor on 23 May 2004. She was required to depart from Hong Kong on 22 June 2004, but instead illegally overstayed. On 7 March 2008, she was arrested for overstaying. On 14 March 2008, she lodged a torture claim[1], which had been rejected by the Director on 16 January 2014. On 7 April 2014, she lodged a non-refoulement claim, covering all applicable grounds other than the risk of torture: BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by her husband by failing to support him financially.

6.The Director decided against the applicant’s claim on the above-mentioned grounds. The Director found that the applicant’s claim was a private domestic dispute and both state protection and the option of internal relocation was not unreasonable. Hence, the appeal to the Board.

7.On 16 January 2019 and 15 May 2019, the applicant attended two hearings before the Board. At the first hearing, the applicant gave evidence in response to detailed questions from the Board through a Sinhalese interpreter. The applicant asserted that she had serious health problems, including mental health conditions, such that she was unable to recall events of the past. The hearing was adjourned to enable her to provide medical records and reports to support her assertion. At the second hearing, the applicant produced medical records and answered the Board’s questions through her interpreter. The Board found that the applicant’s evidence was inconsistent and vague. The applicant’s medical records the Board had examined did not support the former’s assertion of having suffered any medical condition that would have affected her ability to recount past events.

Legal principles applicable to judicial review

8.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited the Board’s Decision, and only deposed that they (meaning the Board) had “disregarded her dangerous situation”. There were no evidence or identification of errors in support of the intended challenge.

10.The Board’s Decision was arrived at with the benefit of two hearings in which the applicant was able to clarify matters raised by the Board. After having examined the applicant’s medical records and her further evidence, the Board doubted the credibility of her evidence and found that there was no basis in support of her asserted fear of harm from her husband. These are findings of fact, which the court in a judicial review will not interfere with.

11.Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the three grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Director’s Decision and the Board’s Decision. The Board had properly examined all relevant information and matters raised before the Director including the issue of internal relocation. I am satisfied that both the Board and the Director had conducted the proceedings with the high standard of fairness.

12.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Dated the 28^th day of November 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