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HCAL 1356/2018
[2021] HKCFI 3505
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1356 of 2018
BETWEEN
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Serasinghe Arachchige Malanie |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant entered Hong Kong as a visitor on 24/3/2004.[1] She overstayed and was arrested by the police on 29/4/2013. She had overstayed for more than 9 years. She raised a non-refoulement claim on 14/07/2013.
Background
2. The applicant was born in Ngombo, Sri Lanka on 16/10/1956. She was married with 1 son. Her siblings were in Sri Lanka. She had education for 3 years. She had worked as a labourer (1992—1997) and a domestic helper (2003—2004). She had not joined any association or groups. She had never been arrested or imprisoned.
3. The applicant claimed that she would be ill-treated or killed by the enemies of her ex-employer if refouled.
4. The applicant started working as a domestic helper for her ex-employer who was a minister in the Putlum District of the UNP [2] and a member of the Parliament in Sri Lanka.
5. Around January 2004, she was abducted by several men associated with SLFP.[3] She was detained in a chicken farm for 7 days. During that time, she was interrogated about her ex-employer. Someone pointed a gun to her threatening to kill her. They asked her to stop working for her ex-employer.
6. Subsequently, she was asked to put a “ball” in the house of her ex-employer. She believed the “ball’ was a bomb but she did not really know what it was. She refused. They were angry. Later, two men who seemed drunk raped her. They then dumped her in a jungle. She met a woman who informed her family to pick her up.
7. She reported to the police. She did not seek medical treatment. A few days later, the police informed her that they could not locate any abductors. She stayed with her sister for several days.
8. Thereafter, she received phone calls threatening to kill her for reporting to the police and for refusing to plant the “ball”. However, nothing eventful happened.
9. She was so scared that she decided to leave Sri Lanka. She borrowed money from a money lender to finance her trip to Hong Kong [4]. She applied for a visa and passport before hand. She left Sri Lanka in March 2004 without any problem.
10. Her family informed her that the SLFP had murdered her ex-employer. They still tried to look for her. They assaulted her husband. Her brother could look for a place in Madhu for her relocation. She did not think the police or other government authorities would assist her as she could not afford a bribe.
The Decision of the Director
11. The Director dismissed her claims on 6/3/2017 which covered the BOR2 risk[5], the BOR 3 risk[6], the persecution risk[7] and the torture risk[8]. The Director found that there was no real risk of harm to the applicant upon her return. The reasons were as follows:[9]
12. After her abduction, despite some threatening phone calls, she had not encountered anyone from SLFP. She was safe while staying with her sister. She was safe at home in the two months before leaving Sri Lanka.
i. There was no evidence that the people from SLFP would still be interested in her after 13 years. Had they wanted to harm her, they had plenty of chances while she was in Sri Lanka. The future risk of harm was low.[10]
ii. There was no evidence that she was harassed because of any political disputes. It arose because of her employment. There was no involvement of public official.
iii. The police had investigated her sexual assault albeit no suspect was located.
iv. There were problems such as corruption, failure to enforce the law and violation of human rights in Sri Lanka. However, there were reforms to improve police competence and effectiveness. The government had provided more funding for the judiciary to clear the backlog. The Human Rights Commission and National Police Commission were established to tackle police misconduct and human rights violations. There were trainings for the police to handle abuse of women, children and victims of domestic violence. The WDC[11] offered assistance to female victims of violence. There was reasonable State protection.
v. The law allowed internal relocation in Sri Lanka. There were relocation options to cities such as Kandy and Madhu. The applicant was safe while staying with her sister. This showed that the influence of the people of SLFP was not that far- reaching. Given that Sri Lanka was a large country with a population of 22 million, it would be difficult for the people of SLFP to locate her. There were social services offered to senior citizens of age 60 and over. It would not be unduly harsh for her to relocate.
The Decision of the Board
13. The applicant gave evidence at the TCAB hearing on 22/3/2018. The TCAB dismissed her appeal on 25/6/2018.
14. The Board dismissed the claim on all applicable grounds. The reasons were as follows:
i. The evidence about the alleged rape was “very sketchy”. She first mentioned this in her NCF in December 2016. She sought no medical assistance. It occurred 14 years ago. She made no report to higher authorities. She was uncertain about the time when her ex-employer was murdered. There was reasonable State protection. There were on-going improvements. Her past experience did not amount to persecution for a convention reason.
ii. Given the long lapse of time from the alleged rape and the fact that her ex-employer had died, the adjudicator did not accept that the applicant would face any real risk of harm if refouled. The BOR 3 ground failed.
iii. There was no involvement of any state actor. The government has no interest in her. She was not targeted. Her past experiences did not amount to torture. The claim on torture risk under s. 37U failed.
iv. There was no risk of any violation of her BOR 2 rights. This ground failed.
v. There were reasonable options for relocation to cities like Kandy and Madhu.
Judicial Review
15. The applicant filed a leave application on 11/7/2018. In her affidavit, she indicated that she was not satisfied with the TCAB decision. She was not given sufficient time to provide the loan agreements and the police report which are in Sri Lanka.
16. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
17. The applicant had not pointed out any specific error in the decision of the TCAB. She was in Hong Kong for nearly 14 years up to the time of the TCAB hearing. She must have ample time to locate the relevant documents. She compiled the NCF with the assistance of the DLS in December 2016. She had the screening interview in January 2017. She had more than one year before the TCAB hearing was held in March 2018. It is unreasonable that she still needed more time for obtaining the documents.I reject this ground.
Conclusion
18. In my judgment, there is no error of law or procedure. I agree with the TCAB decision. It is rational. The intended judicial review is not reasonably arguable. There is no prospect of success. I refuse leave for the intended judicial review.
Dated the 29th day of November 2021.
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(Mike Mak) |
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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 Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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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)). |
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Sent to the Applicant
on 29 November 2021
Serasinghe Arachchige Malanie
Applicant’s ref. no:
Nil. |
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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 29 November 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6605/17/3/260/S130
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3226/16
(Formerly RBCZ/3000570/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She initially gave a false identity to the Director after arrest. It was only during her appeal against the removal order in June 2013 that she disclosed her true identity.
[2] United National Party.
[3] Sri Lanka Freedom Party. She saw a logo on the side of the van.
[4] She had borrowed 300,000 rupees with a monthly interest of 10%.
[5] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[6] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap.383
[7] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[8] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[9] Decision of the Director dated 6/3/2017, §§13—15.
[10] Decision of the Director dated 6/3/2017, §13.
[11] Women’s Development Centre.
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