SOVIS WELLAP FRANCISKUGE ANOMA NIROSHANIE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2141/2019

[2024] HKCFI 3405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2141 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 19 July 2019 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.  The applicant did not ask for a hearing. I shall deal with her application 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, aged 51, is a national of Sri Lanka. On 21 March 2012, she was arrested by police for committing the offences of illegal working in Hong Kong and possessing an identity card belonging to another person. She was convicted and sentenced to 15 months’ imprisonment. She lodged a non-refoulement claim by way of written representation on the basis that, upon refoulement, she will be harmed or killed by her loan shark for being unable to repay the loan and her separated husband, Vass, due to her previous relationship and her refusal to transfer her land to him.

5.  According to the applicant, shortly after her marriage with Vass, she was abused physically by Vass, who was a drug addict and a womanizer. She was serious injured. She had reported to police, which took no action because Vass was connected with a parliamentary politician. She had given birth to 3 children with Vass. She discovered that Vass had a mistress and he lived in her house and elsewhere with his mistress from time to time. Vass demanded money from her for his drug addiction. She had remitted money to him when she was working overseas. Vass demanded her to transfer her land to him. She refused whereupon Vass assaulted her. She was badly injured with blood on her face. She reported to police. The police officer advised her to leave the country. She left her country for Hong Kong finally. Details of her story can be found in paragraph 7 of the Director’s Notice of Decision dated 31 August 2018 (“the Director’s Decision”).

The Director’s Decision

6.  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 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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that it was not substantiated. The Director found that the risk that she will be harmed or killed by the loan shark or Vass is low [14]-[17]; state protection will be available to her [19]; and internal relocation will be viable [27]-[34].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing. The applicant had given oral evidence before the Board and she had answered quite a lot of questions from the adjudicator.

9.  Having considered the applicant’s evidence, the Board found:

“139. For the reasons noted above, the Board is not satisfied the Appellant has told the truth in relation to her relationship with her husband and his ongoing adverse interest in her. …

148. Given the credibility concerns noted above and below, and the differences between the Appellant’s oral evidence and the information provided in her NCF, the Board is not satisfied the Appellant has told the truth in relation to taking a loan and being unable to repay the loan and interest and receiving threats from a loan shark.

[150]-[152] the Board had taken in account the applicant’s delay in making her non-refoulement claim.

153. While the Board accepts the Appellant may have been a victim of domestic violence from her husband, and the Board accepts there is a real risk of harm from him if the Appellant returns to Sri Lanka and lives with him again, the Board considers the Appellant could relocate away from her husband and away from the real risk of harm from him.”

10.  For the reasons above, the Board dismissed her appeal and the Director’s Decision was confirmed.

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

11.  The applicant has filed Form 86 on 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant submitted that she cannot go back to her country because she will be harmed or killed by her husband or the loan shark. She has not raised any reasons to challenge the Board’s Decision.

DISCUSSION

13.  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).

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

15.  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.”

16.  The applicant’s grounds under paragraph 12 are her story, which had been rejected by the Board.

17.  There is no reason for the Court to interfere with the Board’s Decision.

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

DISPOSITION

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