WARNAKULASURIYA CARMEL MANJULA v. TORTURE CLAIMS APPEAL BOARD

HCAL 618/2018

[2020] HKCFI 1920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 618 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 February 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Sri Lanka who arrived in Hong Kong on 5 July 2005 with permission to remain as a visitor up to 4 August 2005 when she did not depart and instead overstayed and was arrested by police on 21 November 2007.  After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Sri Lanka she would be harmed or killed by her abusive former husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Colombo but raised in Chilaw, Sri Lanka.  After leaving school she assisted her parents in their dry fish business, and in 1994 married her husband arranged by her parents, and moved to live with him in Colombo.

3.  Soon after their marriage her husband became abusive towards the Applicant especially after he was drunk when he would pull her hair, slap and punch her at will, and on one occasion he even burnt her left forearm with a cigarette which left a scar.

4.  One day in June 1995 after one such particularly violent abuse, the Applicant had to take shelter in a neighbour’s place overnight, and on the next day she fled to her mother’s home in Chilaw where she made a report to the police, but when she received no assistance from the police, and in order to avoid further abuse from her husband, she therefore went to work in Saudi Arabia in July 1995 as a domestic servant until December 2002 when she returned to Sri Lanka to stay at her mother’s home in Chilaw.

5.  One day in 2005 her husband came to her mother’s home to demand that the Applicant to return with him to Colombo, and when the Applicant refused, he threatened that he would kill her.  Thereafter the Applicant went into hiding in her friend’s place and refused to see her husband.

6.  Eventually her husband suggested that they should dissolve their marriage, and so the Applicant filed for divorce in the same year in Colombo before coming to Hong Kong in July 2005 where she overstayed, and upon her subsequent arrest by the police in November 2007, she raised her non-refoulement claim for protection after she was told by her mother that her former husband was still looking to kill her in Sri Lanka, for which she later completed a Supplementary Claim Form on 1 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  Whilst being released on recognizance pending determination of her claim, the Applicant was again arrested by police on 26 February 2013 for undertaking unauthorized employment for which she was later convicted and sentenced to prison for 12 months.  

8.  By a Notice of Decision dated 25 June 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her ex-husband upon her return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from him, that he had since remarried and that after all these years there is no reason to believe that he would still have any adverse interest in her or why he would still want to harm or kill her, that in any event it was a private domestic dispute between 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 show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 21 million people spread across a vast territory of more than 65,000 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 where it would be difficult if not impossible for her former husband to locate her.

10.  By a Notice of Further Decision dated 27 October 2016 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 July 2015, and for which she attended an oral hearing on 21 November 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 27 February 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board accepted that it is plausible that the Applicant may have been abused by her former husband during their marriage in Sri Lanka, but found no reason why having been divorced so many years ago and has since remarried that her former husband would still have any adverse interest in the Applicant that it was not satisfied that there would be any real chance of her being harmed by him upon her return to Sri Lanka, and that in any event with reasonable internal relocation available for the Applicant to move safely to other part of Sri Lanka away from her home district to re-establish her life and work without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.   

13.  On 11 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that she was not satisfied with the decision because it was unreasonable without providing any particulars or elaboration why it was so or putting forward any other grounds for her intended challenge, nor did she request any oral hearing for her application.   

14.  By then the Applicant was also late with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the three-month period for her to file her Form 86 fell on 27 May 2017, the Applicant was therefore more than 10 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HK1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of more than 10 months must be considered as very substantial or excessive, for which she did not provide any explanation, and as the records confirm that the decision was sent to her last reported address as the same stated in her Form 86 and without having been returned through undelivered mail, I am unable to see any good reason for her such serious delay.

17.  As for the merit of her intended application, as noted above the Applicant failed to put forward any proper or valid ground to challenge the Board’s decision other than claiming that she was not satisfied with the decision.  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.

18.  In the Applicant’s case, 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 her, I am unable to find any basis or merit in her intended challenge.  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 her 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.     

19.  In the premises and 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.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time 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