KORUWAGE JAYANI PREMALI FERNANDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1136/2023

[2024] HKCFI 2293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2023

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Koruwage Jayani Premali Fernando (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 21 June 2023 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 May 2022 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Sri Lankan.  She was born on 24 May 1981.

3.  She was born in Colombo, Sri Lanka.  She received 11 years of education and had 6.5 years of work experience in Sri Lanka and overseas.  She had worked as an embroidery worker and a domestic helper. 

The Claim

4.  The Applicant relied on the following facts for her claim.  In May 2019, she borrowed LKR 2.5 million (Sri Lankan rupees) (“Loan”) from her husband’s friend (“Priyal”).  The Loan was interest free. She used the money to arrange for working in Hong Kong and to pay off the balance of the building costs for her house.  She did not sign any document for the Loan and the Applicant promised to repay Priyal with her earnings in Hong Kong.  The Loan was due in two years in May 2021.

5.  After arriving in Hong Kong in February 2020, the Applicant made three repayments for the Loan between March and May 2020. She stopped paying Priyal after her contract was terminated in June 2020. Priyal did not take any action to collect the debt between May 2020 and May 2021.  He then started chasing her husband in Sri Lanka for the money and got into heated arguments with him every week because of the Loan.

6.  On one occasion, Priyal cut her husband’s hand with a pair of scissors and twisted his hand.  Her husband could not stretch his arm after the injury and had to quit his job as a tailor.  Priyal also repeatedly called her husband and threatened to kill him and the Applicant.

7.  The Applicant claimed that she would be harmed or ill-treated by Priyal if she were returned to Sri Kanka.

Procedural history

8.  The Applicant first entered Hong Kong on 29 February 2020 to work as a foreign domestic helper.  Her visa was last extended to 26 February 2022 or 14 days after termination of her employment contract. Her last employment contract in Hong Kong was prematurely terminated on 3 April 2021.  As such, her visa expired on 17 April 2021.  She did not leave Hong Kong by 17 April 2021 and overstayed in Hong Kong until she was arrested by the police on 20 June 2021 for overstaying.  By a written representation of 24 June 2021, the Applicant lodged the Claim. 

9.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (the “Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

11.  On 10 July 2023, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant named the Board as the proposed respondent and the Director as the interested party in the Form 86.

12.  The Applicant filed her supporting affirmation on 10 July 2023 (the “Supporting Affirmation”).

13.  On 12 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that all her problems in her country had been solved and she wished to return home very soon (the “Withdrawal Application”).

The DOI Decision

14.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by Priyal upon her return.

15.  The Director noted that her husband was able to lead a normal life after the altercation with Priyal.  Although her husband received phone calls from Priyal, he did not see the need to change his number or leave his home.  This suggested that her husband did not perceive any imminent risk of harm from Priyal.  The Director found the risk of harm to the Applicant upon her return to be low.

16.  On the issue of state protection, the Director found that there might be some inefficiency or corruption problems in the Sri Lankan authorities but the relevant country of origin information showed objective indications that the Sri Lankan government took steps to curb corruption and protect its citizens.  The Director found that the Sri Lankan government was able and willing to protect the rights of its citizens. 

17.  Although the Applicant asserted that the Sri Lankan police would not give her any protection, this was unsupported by any evidence.  Her dispute with Priyal originated from the Loan and had nothing to do with the police or the authorities.  Neither the Applicant nor her family in Sri Lanka made a police report and there was nothing to suggest that if they had done so, the police would fail to protect them.

18.  The Director further found that internal relocation within Sri Lanka would be viable.  If she moved to Galle or Kandy, Priyal would have great difficulty in locating her.  After considering her age, education and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life. 

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  The Board largely accepted the Applicant’s case about the existence of the Loan and Priyal’s attempt to recover it.  It accepted that Priyal lent her a substantial sum of money free of interest and was eager to get back the principal of the Loan.  It also accepted that Priyal had assaulted her husband because of the unpaid Loan on two occasions, with the last attack occurring some time ago in around June 2022.

21.  The Board however found that the Applicant was not at risk from Priyal upon her return.  It was her evidence that Priyal extended the Loan to her out of kindness, without interest or documentation. It found that Priyal did not operate any moneylending business.  Although Priyal had taken actions to recover the Loan in the past, it was the Applicant’s own evidence that her family and Priyal had reached an agreement on fully paying back Priyal in the future.  In fact, half of the outstanding amount had already been settled by a bank loan and her son had agreed to pay back the Loan with his income. 

22.  The Board found that it was possible that Priyal would press her for repayment if there was a delay in paying back the Loan.  In that case, she could take up employment and help pay back the Loan.  The Board found it unlikely that Priyal would need to resort to violence in collecting the Loan.

23.  The Applicant’s own actions suggested that she did not perceive any danger from Priyal, as she did not make a claim for protection until her arrest.  Her family in Sri Lanka also did not appear to be concerned with their safety, as they never contacted the police and continued to reside in the home they own (as opposed to selling it to pay back the Loan or fleeing from Priyal) ([45] of the Board’s Decision).

24.  Because the Board held that the Applicant was not at risk from Priyal, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return.

25.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal. 

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  In the Supporting Affirmation, the Applicant put forward the following grounds for her intended judicial review:

(1)  The Adjudicator did not consider her claim and directly dismissed her claim.

(2)  She had submitted documents in her mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand.

(3)  She requested time to arrange for translation of her documents but “my officer had no time”.

(4)  The translator/interpreter was not helpful and asked her not to take long time for interview.

30.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

31.  The Board had considered the Claim and set out detailed reasons for its findings and rulings in the Board’s Decision which went into 69 paragraphs and 15 pages.  I do not see how the Applicant may substantiate her assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim.  Adjudicator directly dismissed.  He did not even take time or did not think about my life.”

32.  In her notice of appeal dated 31 May 2022 for the Appeal, the Applicant stated in her own handwriting: “I would like to make an appeal/petition to the Torture Claims Appeal Board against the decision made by the Director of Immigration on 18^th May 2022 for my non-refoulement claim.  In doing so, I would rely on the claim made together with the supporting documents I submitted to the Immigration Department.” There was no mention of any further documents which the Applicant wished to submit for the Appeal.

33.  There was no mention in the Board’s Decision of the Applicant requesting to submit further documents to the Board at the oral hearing.

34.  In the Supporting Affirmation, the Applicant alleged that she had further documents to submit which were not accepted by the Board.  This is not supported by her statement in her notice of appeal and the contents of the Board’s Decision.  The Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation.  The Applicant’s such assertions were only vague and bare assertions.  I find no merits in her such complaint.

35.  The Applicant complained that the interpreter did not assist her.  I note that the Applicant has prepared the Supporting Affirmation and the Withdrawal Application, all of which were in English, without requiring interpretation.  She also prepared the statement to her notice of appeal in English.  

36.  It seems that the Applicant can manage to express herself in reasonable English, albeit not in the most fluent way.  If the interpreter had failed to assist her at the screening interview before the immigration officer or at the hearing before the Board, she could raise that with the interviewing officer or the Board.  There was no record of such complaints 

37.  I see no merits in the Applicant’s complaint on the language issue.

38.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.  The Applicant also provided no particulars or specifics nor supporting documents on matters stated in the Supporting Affirmation and referred to in §29 above.  They were only vague and bare assertions.

39.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

40.  The Board having considered all the evidence of the Applicant was not satisfied that there were substantial or strong grounds or a real chance or a real risk that Priyal would inflict harm amounting to torture, a risk to her life, cruel or inhuman treatment or punishment or persecution upon the Applicant if she were returned to Sri Lanka.

41.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

42.  The Applicant subsequently filed the Withdrawal Application on 12 June 2024 stating that all her problems in her country had been solved and she wanted to go home.

43.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

44.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

45.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss her application for leave to apply for judicial review.

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