MUTHUPORUTOTAGE INOKA KUMARI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 3296/2019

[2021] HKCFI 3635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3296 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Sri Lanka who arrived in Hong Kong on 4 August 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 August 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 August 2016 she did not depart and instead overstayed, and on 13 October 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Sri Lanka she would be harmed or killed by her abusive husband for leaving him and the marriage. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Madawaththa, Halawatha, Sri Lanka.  After leaving school she married her husband and raised a family with one son, but she soon found her husband indulged in drugs and alcohol, and would become violent and abusive towards her especially after he was drunk by slapping and beating her with punches and kicks, and one day in 2013 after a serious beating, she left her husband to return to her parents’ home.

3.  However, her husband would thereafter come with his followers to threaten the Applicant’s parents to send her back to him, and when they refused, he would assault both the Applicant and her parents, and threatened to kill all of them. To avoid further threats from her husband, the Applicant on 4 August 2016 departed Sri Lanka for Hong Kong to work as a foreign domestic helper, but when her employment contract was prematurely terminated, she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 12 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband upon her return to Sri Lanka as it was a private domestic dispute between the two of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from her home district in large cities such as Colombo where it would be difficult if not impossible for her husband to locate her.

6.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 20 August 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 31 October 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claim and that she was also evasive to many of the questions put to her by the Adjudicator that she did not convince to be a reliable witness or that her version of story is credible, which was further undermined by her failure to raise her claim until more than one year after she had overstayed in Hong Kong, and that in any even her problems with her husband was a private domestic dispute without any official that state/police protection would be available to the Applicant upon her return to Sri Lanka as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

8.  On 5 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she just stated that she is not satisfied with their decisions as her life would still be in danger upon if refouled to her home country but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

9.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

10.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 38 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

11.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.  Furthermore, the Applicant recently on 8 November 2021 filed an affidavit requesting to withdraw her application as it is now safe for her to return to her home country.

14.  In the premises, and as I am not for the reasons given satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that it is safe for her to return to her home country, I accede to her request and accordingly dismiss her leave application.

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