PA v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2491/2018

[2019] HKCFI 3111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2491 OF 2018

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JUDGMENT

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1.  The Applicant is a 49-year-old national of Sri Lanka who last arrived in Hong Kong on 16 March 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 March 2015, but when her contract was prematurely terminated on 18 November 2013, she did not depart and instead overstayed, and on 13 January 2014 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, the two men who had raped her, and her son who disapproved of her behavior. She was subsequently released on recognizance pending the determination of her claim.

Background

2.  The Applicant was born and raised by her Sinhalese parents in North Wellawatte, Colombo, Sri Lanka.  She has two younger siblings and completed seven years of formal education.

3.  In 1982 when she was aged 12, her father went to work in Jaffna in the Northern Province, her mother therefore moved the family to stay with the Juwanis Family in Thalawathugoda, Colombo where Mr Juwanis was a doctor and Mrs Juwanis was a housewife, while their six children were already adults.

4.  At the beginning the Juwanis Family treated the Applicant and her family well, but after their mother had gone to Dubai to work as a domestic helper and left the children in the care of the Juwanis who then started to treat them differently by moving them into a nearby small and dark hut with minimal furniture, where they had to sleep on the floor and were given barely enough food which the Applicant had to cook for herself and her siblings.

5.  About one year later when she was about 13 ½ years old, the Applicant was married by the Juwanis to one of their sons who was 11 years older at 24, and moved to reside at his home in Hokandara where she was repeatedly raped by her husband, and on occasions when she put up any resistance, she would be beaten and burned with cigarette butts or had hot water poured over her, especially after he was drunk and would become violent and abusive by hitting her all over her body, and as a result she had become traumatized and suffered from mental stress and with frequent nightmares. 

6.  In 1984 she became pregnant and subsequently in April 1985 gave birth to a son.  Shortly afterwards her father returned from Jaffna, and when he found that she had married at such a young age, he became very upset and disowned her as his daughter.

7.  In late 1987 the Applicant became pregnant again, but this time her husband wanted her to abort the fetus, and when she refused, he would beat her with a wooden stick.  Eventually she gave birth to a daughter in July 1988.  Shortly thereafter the family moved to Homagama due to her husband’s job. 

8.  Later her husband started to indulge in alcohol instead of working to support the family, and in 1993 he used the welfare of their children as leverage to force the Applicant to go work as a domestic helper in Lebanon and Kuwait as well as other places to earn money to support their family, but whenever she returned to Sri Lanka for holidays, she again had to endure her husband’s abuses and ill-treatments.

9.  Eventually in about 2003 the Applicant decided to separate from her husband by placing their children in the care of her mother in Kotigangoda, Padukka, while she went off to work in Cyprus and Abu Dhabi and sent money to her mother instead of to her husband.

10.  In 2011 the Applicant returned from Abu Dhabi to purchase a house in an area between Horana and Moragahahena in Sri Lanka for her own residence so as to live apart from her husband, although sometimes he would come and stay over whenever their children were visiting the Applicant. 

11.  In September 2012 the Applicant started to work in Hong Kong as a foreign domestic helper, and on 16 February 2013 she returned to Sri Lanka to wait for her next employment contract.  One day her husband came to her home with two other men who appeared drunk and tied her up before proceeding to rape her in turn including sodomizing her repeatedly.  As a result the Applicant was traumatized and fainted at one stage of her ordeal.

12.  Afterwards and before they left, one of the men pointed a knife at the Applicant’s throat and threatened her not to tell anybody or go to the police or else he would cut her throat, and that they were bodyguards for important politicians that they could kill her without any problem as the police were under their influence.

13.  The Applicant believed that the two men were bodyguards working for politicians and therefore did not report the rape to the police, but several days later her son came and told her that he had learnt from his father that she had slept with some men, and accused her of being a prostitute and demanded that she should leave the house as he did not want to see her again or else he would kill her.  As the Applicant had earlier already given the house to her son for his wedding, she had no place to go but to return to Hong Kong on 16 March 2013 for her second contract.

Non-refoulement claim

14.  However, when her contract was prematurely terminated on 18 November 2013, she did not depart and instead overstayed in Hong Kong until 13 January 2014 when she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s decision

15.  By a Notice of Decision dated 14 October 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 (“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”).

16.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm upon her return to Sri Lanka as low due to the absence of reliable or objective evidence those men or her husband or her son would still have any adverse interest in her after all these years or to have any reason or intention to harm or kill her upon her return to Sri Lanka, or that those two men were indeed bodyguards or agents of the government that in the absence of 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 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Sri Lanka away from her home district in large cities such as Moragahahena where she had stayed before without incidents and where it would be difficult if not impossible for her abusive husband or her son or those two men to locate her.

Director’s further decision

17.  By a Notice of Further Decision dated 13 January 2017 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”).

Appeal Board’s decision

18.  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 26 October 2015, and for which she attended an oral hearing on 9 January 2018 before the Board with her lawyer from DLS during which she gave evidence and answered questions put to her by the adjudicator for the Board, and with submissions made on her behalf by her lawyer.  On 29 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

19.  In its decision the Board accepted the Applicant’s evidence that she was a victim of forced marriage while underage and was subjected to domestic violence by her abusive husband, that she had been raped by the two men arranged by her husband, and that she had been alienated from her son, but did not accept that any of them were public officials or state agents in their treatments of the Applicant, or that she would be in danger of being subjected to torture or other ill-treatments by them with whom she had had no further contact since 2013 upon her return to Sri Lanka where state protection would be available to her and that she can seek assistance and shelter from various NGOs, as well as with reasonable internal relocation within Sri Lanka as an option that with her vast overseas work experience it would not be unduly harsh for her to relocate outside of her original immediate vicinity that her claim for non-refoulement protection failed on all applicable grounds.

Removal from Hong Kong

20.  On 25 April 2018 when the Applicant attended at the Immigration Department to answer her recognizance, she was told that as her appeal had already been dismissed by the Board and that her removal would be imminent, she was therefore detained at the Castle Peak Bay Immigration Centre (“CIC”) pending her removal.

21.  While in CIC the Applicant wrote to her DLS lawyer for help, and on 11 May 2018 received a letter from her lawyer with advise to make an urgent application to the Legal Aid Department for legal aid to apply for judicial review of the Board’s decision, and to approach a social officer at CIC for assistance.

22.  However, before she could do so, on the evening of 18 May 2018 the Applicant was repatriated to Colombo, Sri Lanka.    

23.  On 13 June 2018 the Applicant with the assistance of Justice Centre Hong Kong (“JCHK”) and her DLS lawyer submitted her application for legal aid, which was granted on 7 August 2018, with the legal aid certificate received by her assigned solicitors on 13 August 2018.

Judicial review of the Director’s decision to remove the Applicant (HCAL 1668/2018)

24.  By a Form 86 issued on 17 August 2018 under HCAL 1668/2018, the Applicant sought leave to apply for judicial review of the Director’s decision to compulsorily remove her on 18 May 2018 from Hong Kong to Sri Lanka, the country in which she had claimed to be at risk, and the relief sought included (i) an order of certiorari to quash the Director’s decision, (ii) an order that the Director should use his best endeavours to facilitate her return to Hong Kong to enable her to prepare and bring separate judicial review proceedings in respect of the Board’s decision and to remain in Hong Kong pending outcome of that proceedings, and (iii) a declaration that the Director’s policy of removing persons from Hong Kong without adequate notice to allow them access to justice was unlawful.

25.  On 21 August 2018 Hon Chow J who was to hear that application directed a rolled-up hearing of the leave to apply for judicial review and the substantive application.

26.  At the rolled-up hearing before Hon Chow J on 22 May 2019, with the Director as the Respondent and represented by the Department of Justice, the Applicant advanced a single ground of review in her application: That the Director’s decision to remove her from Hong Kong to Sri Lanka without any or any sufficient notice interfered with her right of access to the court, as it may be more difficult to litigate from outside Hong Kong.

27.  On 15 August 2019 Hon Chow J dismissed the Applicant’s application for leave to apply for judicial review of the Director’s decision upon finding that she had been given sufficient notice that her removal was imminent, that the Director did not have any notice or indication that she had intended to commence legal proceedings to challenge the Board’s decision at the time when she was removed, and that the Director was entitled to remove her from Hong Kong on 18 May 2018 in accordance with his existing policy.

Judicial review of the Board’s decision 

28.  Meanwhile going back somewhat in time, on 6 November 2018 the Applicant through her lawyer filed her Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  error of law—failure to recognize rape including in the domestic context as a possible basis for non-refoulement protection;

(2)  failure to take into account evidence/materials relevant to risk and the availability of state protection and/or failure to give adequate reasons in relation to those materials;

(3)  error of law—erroneous internal relocation findings;

(4)  error of law—failure to make findings under Article 4 of BOR/Article 8 of the International Covenant on Civil and Political Rights (“ICCPR”); and

(5)  error of law—no second limb to persecution test.      

29.  However, by then the Applicant’s Form 86 was filed out of time, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.

30.  Since the Board’s decision was made on 29 March 2018, the last day of the three-month period for the Applicant to file her Form 86 for judicial review fell on 29 June 2018, hence she was some 4 ½ months late with her application, and on 7 November 2018 Hon Chow J directed that there be also a rolled-up hearing of the following matters which are now before me:

(1)  the application for extension of time to apply for leave for judicial review;

(2)  the application for leave to apply for judicial review; and

(3)  the substantive application for judicial review;

31.  Accordingly I shall deal with those matters in that order.

Extension of time

32.  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 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

33.  In the Applicant’s case, a delay of 4 ½ months must be regarded as significant, for which Mr Timothy Parker, who also appeared for the Applicant in her earlier application for judicial review before Hon Chow J in HCAL 1668/2018, submits that it was the result of the Applicant being removed from Hong Kong by the Immigration Department approximately seven weeks after the Board’s decision but well within the three-month window for commencing judicial review, during which she was already desperately trying to obtain legal aid to commence her intended challenge against the Board’s decision through Justice Centre Hong Kong (“JCHK”), as detailed in her Form 86 and which Mr Parker summarized as follows:

(a)  JCHK helped the Applicant to prepare a bare-bones Form 86, but was unable to complete the task after she was taken into detention at CIC on 25 April 2018 where JCHK could not access.

(b)  Following the Applicant’s removal on 18 May 2018, JCHK assisted her to make a legal aid application on 13 June 2018 which was again well within time.

(c)  On 28 June 2018 a representative of JCHK attended the court to attempt to file a Form 86 on behalf of the Applicant but was not accepted by the Registrar due to the absence of a power of attorney from the Applicant. 

34.  Mr Parker argues that whether or not the Court was right to refuse that filing, it is clear that the Applicant took every conceivable step to file her Form 86 within time, but that it proved impossible until she was granted legal aid in late August 2018 and had solicitors on the record who could only then proceed to file it on her behalf.

35.  Even then, Mr Parker submits, that the process was considerably hindered by the fact that the Applicant was in hiding in Sri Lanka, constantly moving from place to place to avoid detection, and with very limited access to communication which had to be conducted through interpreters with their own availability restrictions, all added to the difficulties facing her lawyers while attempting to obtain information, instructions and documents necessary to apply for an anonymity order, to challenge the removal order and to challenge the Board’s decision in this matter, all of which were caused by the Applicant’s removal from Hong Kong and which she had done her best to file her Form 86 as soon as reasonably possible, and which are strong merits for the Court to extend time for her late filing of the intended application.

Undue delay

36.  The application was opposed by the Director represented by Ms Leona Cheung with Ms Liesl Lai of the Department of Justice, and for whom Ms Cheung argues that none of the above matters put forward by the Applicant constitute good reason for her delay, as she did not take any step for about one month to apply for legal aid until her detention, and that even during her detention she could still have made her application but did not until after her removal.

37.  Ms Cheung further submits that the Applicant could have filed her Form 86 even without legal aid, as Hon Chow J held in his removal judgment at [42]:

“ … [The Applicant] did not require legal aid to commence judicial review proceedings to challenge the TCAB Decision. It is everyday occurrence in this jurisdiction that non-refoulement claimants commence judicial review proceedings without the assistance of lawyers.”

38.  Even after being granted legal aid with assigned counsel on 31 August 2018, Ms Cheung argues that it took the Applicant a further two months for her Form 86 to be filed on 6 November 2018 when it was not much more different from her earlier version which she failed to file on 28 June 2018 other than the additional fifth ground in her present Form 86.

39.  Ms Cheung further submits that there will be detriment to good administration, specifically to Hong Kong’s immigration control, if extension of time is granted in the circumstances, and allowing failed claimants such as the Applicant to belatedly take out judicial review applications potentially overturning final determination on their claims made months ago would wreak havoc to Hong Kong’s immigration control, particularly if those who have already been removed are permitted to do so belatedly from overseas.

40.  Whilst a delay of 4 ½months must as noted above be considered as significant, I accept that in the particular circumstances of the Applicant’s removal from Hong Kong in the middle of the three-month period for her to file her application, coupled with the inevitable resultant difficulties so caused in obtaining her instruction from overseas for preparing her Form 86, as well as the fact that it was submitted within time but rejected by the Registrar for what appears to me a technical or procedural irregularity, I am prepared to accept the Application’s explanations in the exercise of my discretion to extend time for her intended application.  

Academic application

41.  The Director however also advances an argument that the Applicant’s proposed judicial review application is in any event just academic, as whatever the result, since she had already been removed from Hong Kong and back to her country of origin in Sri Lanka before the filing of her Form 86, even if her application were to be allowed and the Board’s decision were to be quashed, what is left would be a pending claim before the Board that must be treated as withdrawn and cannot be re-opened, as section 37ZF of the Ordinance provides as follows:

“ 37ZF. Deemed withdrawal of torture claim on claimant’s departure

(1) A torture claim (whether a claim pending final determination or a substantiated claim) made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant (for whatever reason) leaves Hong Kong.

(2) A torture claim that is treated as withdrawn under subsection (1) must not be re-opened.

(3)   …”  

42.  Ms Cheung argues that this provision makes ample sense, as the very purpose of non-refoulement protection is to ensure that persons are not removed from Hong Kong to another state where they face the requisite level of risks under the applicable grounds, but when a person is not in Hong Kong, and is therefore not subject or liable to removal from Hong Kong, non-refoulement protection in Hong Kong is entirely irrelevant, as section 37W(1)(a) of the Ordinance provides that a person may claim non- refoulement protection in Hong Kong only if that person is subject or liable to removal, of which the Applicant is clearly not anymore since her removal on 18 May 2018.

43.  Whilst it is true that section 37W(1) does restrict only those persons subject or liable to removal and with no right of abode or to land in Hong Kong may claim non-refoulement protection, but in the Applicant’s case, she was removed by the Immigration Department under a removal order, which is not a case of her leaving Hong Kong under section 37ZF(1), as the word “leave” under subsection (1) in my opinion implies a voluntary action, for whatever reason, on the part of the claimant, as otherwise it would be liable to be abused by the authorities to prevent, pre-empt or put an early end to any non-refoulement claim by such claimant, and of which I certainly cannot believe to be the true intention of the legislation.

44.  Furthermore, when the Applicant was removed from Hong Kong on 18 May 2018, her non-refoulement claim had in fact already been determined (and rejected) under the two-tier screening system of Part VIIC of the Ordinance and the Unified Screening Mechanism (“USM”), and that she is now at the stage of challenging the Board’s decision by judicial review, for which she is entitled and is able to exercise her right of access to the court from outside the jurisdiction, a right which the Director did not dispute in her earlier application before Hon Chow J as recorded in his judgment [32], and as it has been held by the Court of Appeal in Saeed v Director of Immigration [2012] 3 HKLRD 541 that the proposed removal of a non-refoulement claimant (whose claim had been assessed and rejected) to Pakistan would not prevent him from pursuing his civil claim against the Director for damages for unlawful imprisonment.

45.  In the premises I do not agree with the Director that the Applicant’s present application for judicial review is in any way restricted either by sections 37W or 37ZF of the Ordinance, nor is it just an academic application.

The Board’s factual findings

46.  As for the Applicant’s intended challenges under her proposed grounds, which Ms Cheung submits are essentially just critical of the manner in which the adjudicator handled the evidence, applied the law to the evidence and explained her decision on the facts of the case, but that it is important to note that the adjudicator has made the following factual findings upon which the Board decided that the Applicant had failed to substantiate a case under any of the applicable grounds, and hence there is no merit in her intended challenge:

(a)  that there was a lack of power, resources and interest of the husband or the two rapists to pursue the Applicant beyond her home locality;

(b)  that there was no state element involved;

(c)  that reasonable state protection is available; and

(d)  that internal relocation is a viable option.

47.  Ms Cheung argues that given these factual findings by the adjudicator, regardless of whether the past feared treatment of the Applicant falls within the definition of torture, CIDTP or persecution, it is plainly legally open and reasonable for the Board to conclude that the future risks faced by the Applicant upon return to Sri Lanka do not reach the requisite levels to substantiate a non-refoulement claim or to justify non-refoulement protection in Hong Kong.

48.  Accordingly and in the premises, it would be relevant for me to first set out the Board’s factual findings of the Applicant’s case, before proceeding to consider each of the Applicant’s proposed grounds as against those factual findings.

49.  Firstly, as confirmed in the Director’s skeleton submissions, the factual and procedural background to the Applicant’s non-refoulement claim set out at §§4 – 35 of her Form 86 [HB/1/2/10–16] were not challenged by the Board and upon which it also accepted the Applicant’s case that she had suffered rapes by her husband and the two men to whom she was prostituted by her husband.

50.  Ms Cheung for the Director has in fact summarized such facts of the Applicant’s own case as accepted by the Board in her skeleton submissions [31], and which I propose to set out as follows:

“ Past treatment by J & V

(a)  The Applicant was mistreated as a child by her guardians, J & V.  This took place nearly 40 years ago, when the Applicant (then aged 12) was put under their care by her mother in 1982.  [3/418/§100]

Past treatment by Husband

(b)  In 1984, the Applicant (still a child) was tricked into marriage with A (‘Husband’).  [3/48/417–418/§§90, 100]

(c)  The Applicant was a victim of domestic violence and marital rape by Husband. [3/48/417–418/§§90, 100] The Board did not specify the timing of these matters in its factual findings. Based on the Applicant’s own version of events, these took place from 1984 (year of marriage) to about 1993 (when the Applicant left Sri Lanka to work overseas), and whenever the Applicant went back to Sri Lanka whilst she was working overseas to some time before or in 2003.

(d)  From 1993 to some time before or in 2003, the Applicant was forced by Husband to work as a domestic helper overseas, with her wages all remitted to her family.  [3/48/417/§90]

Past treatment by Husband and the 2 Rapists

(e)  In 2013, while staying in Sri Lanka during a gap between two Hong Kong foreign domestic helper contracts, the Applicant was raped by two men (‘the 2 Rapists’) at the arrangement of Husband who prostituted her for money.  [3/48/417–418/§§91, 100]

Past treatment by Husband and son

(f)  Also in 2013, the Applicant’s son was alienated from her by Husband and her son disowned her.  [3/48/417–418/§§91, 100]”

51.  It was on such accepted facts of the Applicant’s case that the Board proceeded to make its own findings based on the evidence before it, and as summarized in Ms Cheung’s skeleton submissions [31]:

“ Lack of power, resources and instead of Husband, son and the 2 Rapists to pursue the Applicant beyond her home locality

(a)  The Applicant had not had contact with Husband, the son and the 2 Rapists since 2013.  [3/48/430/§176]

…

(h)  The Applicant was able to leave Sri Lanka in 2013, without hindrance from the State or non-State parties.  The Board found that Husband, the son and the 2 Rapists were neither powerful, resourceful, nor interested in the Applicant’s departure sufficiently to locate and stop her, once she left her home locality.  [3/48/420/§165]

No state element

(i) The Board found that, ‘[o]n the evidence, there was nothing to show that Husband, J and V and family, the son, or the 2 Rapists were public officials or state agents, acting on behalf of the state, in conjunction with the state, under its direction or control, or otherwise under colour of law. [3/48/417/§§96, 101, 102]

Availability of reasonable state protection

The Board also found, after a detailed consideration of COI [3/48/421–428/§§121–153], that ‘[s]tate protection and assistance, augmented by voluntary agencies services, are available to women and children in Sri Lanka’ (§153). The Board found that the Applicant never sought state protection [3/48/417/§111] and state protection would have been available had she sought it. [3/48/429/§167]

Internal relocation is a viable option

The Board found that internal relocation ‘outside her original immediate vicinity’ is viable [4/38/429/§166].

…

 (l)   The Board found that the capital of Sri Lanka is Colombo (where the Applicant was born), the main ethnic group is Sinhalese (74.9% of the population; which is the Applicant’s ethnic group), its national and official language is Sinhala (spoken by 74% of the population, which is the Applicant’s language), and the official religion is Buddhism (by 70.2% of the population, which is the Applicant’s religion). [3/48/429/§§156–158, 163]

The Applicant has vast overseas working experience and is an able-bodied adult.  [3/48/429/§166]

The Applicant’s PTSD

The Board took into account the Applicant’s contentions and the psychological assessment field before the Board regarding her PTSD.  [3/48/420–421/§116]  The Board found that the Applicant’s emotional trauma and depression clearly had not affected her ability to give testimony at the hearing.  [3/48/421/§119]”

52.  It is on the basis of these factual findings, as submitted by Ms Cheung for the Director, that the Board decided that the Applicant had not substantiated a case under any of the grounds under the USM, and against which I now proceed to consider the merits of the Applicant’s proposed grounds for her intended challenge, but before doing so, I propose to first highlight the general propositions as to the role of the court in a judicial review.

General principles

53.  As has been repeatedly emphasized by the Court of Appeal, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers 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 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: see 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.  

54.  It is with these principles in mind that I now turn to consider the Applicant’s leave application, but given the circumstances of this case and the nature of the complaints raised against the Board, I propose to grant leave and go straight to the consideration of the grounds of her substantive application for judicial review of the Board’s decision.

Ground 1:  Failure to recognize rape as possible basis for non-refoulement claim

55.  The Applicant’s complaint is that the adjudicator, having found that she has suffered numerous rapes by her husband and the two bodyguards to whom she was prostituted, wrongly held that rape, particularly in the domestic context, was not treatment that could give rise to a protection claim under any recognized ground, as the adjudicator found in her decision as follows:

(a)  that the Applicant had not suffered persecution because domestic violence including marital rape is a private matter and does not come within the definition of persecution, and that there is no nexus to a Convention ground ([180] – [181]);

(b)  that no state nexus was established for the purpose of the Torture Convention ([96] – [102]); and

(c)  that rape is insufficiently severe a form of mistreatment to amount to torture or CIDTP ([177]).

56.  Mr Parker submits that two interconnected errors of law emerge from these findings, as it is well established in law that violence by a domestic partner, or Intimate Partner Violence (“IPV”), is capable of grounding a persecution claim within certain defined circumstances where it is shown that the State is unwilling or unable to offer adequate protection to women who are victims of IPV, and that an assessor must in such cases assess the extent of State protection available to women who are victims of IPV: see Islam v Secretary of State for the Home Department [1999] 2 AC 629, 648.

57.  In the present case, Mr Parker submits, the adjudicator had categorically excluded the Applicant’s claim on the basis that the infliction of IPV involved no nexus with a Convention ground, and that the Applicant was not a member of a relevant particular social group, and therefore the adjudicator failed to go on to ask the necessary questions of whether the State in Sri Lanka would provide adequate protection for a woman in the Applicant’s circumstances, nor did the adjudicator even mention any of those expert reports submitted by the Applicant as to the availability of State protection in Sri Lanka which Mr Parker argues as evidence that the adjudicator, having misdirected herself on the law, did not consider it necessary to examine whether adequate State protection was available to victims of IPV and therefore did not consider the subject at all.

58.  Mr Parker argues that in fact there was ample evidence before the Board that State protection was totally lacking in these cases, as the adjudicator had so found in her decision by quoting from a United States State Department Report [131], as confirmed by the expert report submitted by the Applicant, and other facts compellingly point to the absence of State protection for women in the Applicant’s position as those forced or duped into child marriages and those subjected to severe IPV including rape, and those treated by their husbands as property, and the fact that marital rape is not a crime in Sri Lanka is particularly significant in this context.

59.  Mr Parker therefore submits that the adjudicator failed to consider these factors pointing to inadequate State protection, on the basis of her erroneous conclusion of law, namely that the Applicant did not fall within a protected group and that there could be no Convention nexus because IPV is a private matter, and hence the Board’s finding on persecution is legally flawed and cannot stand.

60.  Mr Parker further submits that the adjudicator’s conclusion that the rape experienced by the Applicant did not amount to the minimum level of severity is incorrect as a matter of law, as it is well established that the level of physical suffering and mental anguish a victim of rape experiences reaches the severity threshold for torture and CIDTP as well as persecution, in particular after taking into account the personal circumstances of the victim and all of the circumstances of the ill-treatment and its physical and mental effects, as in the case of the Applicant.

61.  The adjudicator’s misapplication of the threshold required, Mr Parker argues, vitiates her findings about the Applicant’s future risk of harm, as she completely failed to assess and/or incorrectly assessed the Applicant’s risk of further sexual assaults in the future, after having wrongly found that rape does not reach the severity threshold, and also failed to consider the particularly severe suffering that the Applicant would undergo in the event of any further sex attack would be compounded by her own past experience as a long-term rape survivor and post-traumatic stress disorder (“PTSD”) sufferer.

62.  Further and/or alternatively, Mr Parker argues that the adjudicator’s finding that in relation to the Applicant’s rape at the hands of the two bodyguards that they lack any State connection cannot stand, or that such finding is irrational or erroneous in law despite having found the Applicant’s testimony to be credible, and that the adjudicator also failed to take into account the expert evidence adduced supporting the conclusion that there was a State connection of those bodyguards.

63.  The Director accepts that there are two shortcomings in the Board’s decision as follows:

(a)  the ruling that the rape of the Applicant did not attain the level of severity required under BOR 3 (CIDTP): [177]; and

(b)  the ruling that domestic violence and marital rape were “domestic” and did not come within the definition of persecution: [180].

64.  Ms Leona Cheung however submits for the Director, as noted above, that these shortcomings do not constitute decisive errors which warrant the Court’s interference with the Board’s overall conclusions, as the Applicant’s claim would have failed in any event based on the Board’s factual findings that the persons against whom the Applicant claims feared do not have the interest, power or resources to locate her outside her original home locality, that there is reasonable internal relocation as well as state protection, the latter of which brings me to the Applicant’s second ground.

Ground 2:  Failure to take account relevant evidence or give adequate reasons

65.  The Applicant’s complaint in this Ground is that the adjudicator erred in law in failing to take into account two highly relevant expert reports (“Expert Reports”) of Ms Sarala Emmanuel dated 21 December 2017 [HB/2/36/258 – 273] and its Addendum dated 14 February 2018 [HB/3/46/397 – 399], prepared in the context of the Applicant’s claim concerning relevant country conditions in Sri Lanka and related, inter alia, to risk and the availability of State protection, or alternatively, Mr Parker submits, if the adjudicator did take these reports into account, she failed to make any finding or state what, if any, weight she placed on them, and/or to give any or sufficient reasons explaining why she gave them no weight.  

66.  Mr Parker submits that it is well established in law that expert evidence is of significant importance in assessing country conditions, and that a decision-maker is required to take into account all relevant material in arriving at a decision and to state what finding is reached about those relevant material and to explain why, and that the disregarding of which is irrational or otherwise procedurally unfair.

67.  In the present case, Mr Parker argues that the Expert Reports were submitted to the Board in accordance with the prescribed procedure for admitting new evidence under section 19 of Schedule 1A to the Immigration Ordinance, and that no objection to their admission was ever raised by the Director or the Board, nor was there any challenge to the expert’s expertise when the adjudicator admitted the reports into evidence.

68.  Mr Parker submits that the Expert Reports presented highly material evidence including the following:

(a)  Women in Sri Lanka very rarely report IPV, and even when they do, the response from service providers and the police is often unsupportive, and that there are very limited shelter services for women to go in order to escape violence: §§9 – 16, 20 – 23 of 1^st Report [HB/2/36/261 – 264, 266 – 267].

(b)  Marital rape is not a criminal offence under Sri Lanka law: §17 of 1^st Report [HB/2/36/265].

(c)  If the person responsible for IPV is linked to or has any connections with the police, security forces or political actors,the complainant will have “very little chance for protection or redress”, that Sri Lankan police will be insensitive to complaints of domestic violence and will trivialize women’s experiences or otherwise be reluctant to take any action on the complaint: §§18 – 19, 26 of 1^st Report [HB/2/36/265 – 266, 268].

(d)  It is probable that the two bodyguards who raped the Applicant were State agents, or otherwise had political or police connections: §19 of 1^st Report [HB/2/36/265 – 266].

69.  However, Mr Parker submits, the Expert Reports were not mentioned at all in the Board’s decision, which shows that the adjudicator either ignored them entirely without providing any good reason for doing so, or else failed to give any reason for reaching her findings that are contrary to the analysis and opinion stated in the Expert Reports, and that such failure to take into account the Expert Reports amounts to a failure to take into account relevant consideration and/or an error of law, with the Board’s decision therefore liable to be quashed.

70.  Ms Cheung for the Director however argues that the Applicant’s contention does not stand on the facts, as the adjudicator did make it clear that all evidence and materials produced by the Applicant had already been perused and there is no basis to second-guess her confirmation, as the adjudicator did in fact draw some of her findings from those COI cited in the Expert Reports, such as the NGO ‘Women in Need’ which provided assistance to Sri Lankan women, as well as specific reference made to those COI produced by the Justice Centre for the Applicant, and that the transcript of the appeal hearing also reveals that the adjudicator did indicate that she would look at the Expert Reports and to decide how much weight, if any, to give to them.  Hence Ms Cheung argues that it is clear that the adjudicator did consider the Expert Reports.

71.  The adjudicator was however under no duty, Ms Cheung argues, to specifically address every part of the Expert Reports and to explain the weight given to each, as the parties had submitted a plethora of materials to the Board, and it was up to the adjudicator to exercise her judgment to strike an appropriate balance as to the details required in giving a suitably reasoned decision as opposed to dogmatically analyzing every part of the materials; and in response to the Applicant’s Expert Report, the Director had presented counter evidence and submissions before the adjudicator, and it was open to her to make her own assessment upon considering the parties’ submissions and COI materials.

72.  Ms Cheung further submits that the Expert Reports are merely a collection and selection of various pieces of information that were available on the country situation, but they cannot overstep the Board’s power in making a risk assessment, of which it was its duty to consider all relevant COI in its determination of the Applicant’s need of non-refoulement protection, and it had no obligation to explain in its decision how it gave weight to the opinions or findings in the Expert Reports.

73.  As noted above, these Expert Reports were made respectively on 21 December 2017 and 14 February 2018 by Ms Emmanuel, a development practitioner and researcher based in Sri Lanka working with various local women’s groups in responding to cases of IPV and other gender issues.  The first of her Reports was, as stated in §3, her opinion as to whether a real and continued risk of serious harm for the Applicant if she were to be returned to Sri Lanka, and whether effective state protection is available for women in her circumstances in Sri Lanka.  It is this report that is of main concern under this Ground of the Applicant.

74.  There does however appear to me no express reference to this Report on the face of the Board’s decision in its consideration and conclusion as to the Applicant’s claimed risk if returned to Sri Lanka and the availability of State protection.  It is not disputed that the Report was adduced by the Applicant on 27 December 2017 to the Board as new evidence [HB/2/36/258], and which were referred to and relied on in [44] – [50] of her skeleton submissions of the same date.

75.  Given Mr Parker’s submissions above that highly material evidence were presented in this Report relevant to the Applicant’s claimed risk if returned and the availability of State protection, I should first set out a number of the relevant passages, starting with the historical, social and cultural attitudes in Sri Lanka towards IPV as follows:

“ 6. To begin with, although the aggregate human development indicators pertaining to health and education for women is high, and there is a long history of women’s rights activism in Sri Lanka, society remains deeply patriarchal and biased against women. Women are trapped in traditional gender roles and labour force participation of women is very low as is women’s political participation. As further discussed below, impunity for violence against women, including within the home, is very high. Survivors of violence face many challenges in being heard and risk social censure and shame if they go public with their experiences of abuse. Domestic violence remains largely hidden and even though it is subject of a specific legislation going back to 2005, implementation remains very weak.

7.  Social and cultural attitudes in Sri Lanka towards IPV are deeply patriarchal, where it is accepted that a man can be physically and sexually violent towards his wife.  It is believed that a woman should not provoke or challenge the man, and that the cause of violence is often said to be women not performing household duties well, asking for money, or being suspected of relationships with other men.  Most importantly, there is a belief that no matter what the circumstances are, the family should not ‘broken’.”

76.  The Report then proceeded to discuss the inadequacy of legal and state protection or support available for women at risk to IPV:

“ 9. Women often remain silent and very rarely report IPV, and even when they do, the response from service providers and the police is often unsupportive. More often than not they are made to go back to the abusive relationship. Even women who do seek support from women’s organizations to secure relief and redress often end up going back into abusive situation due to lack of sustainable alternatives and a legal system that fails to recognize their experience of violence, social and cultural pressure, economic dependency and lack of appropriate and meaningful alternative support systems and structures.

…

16. The 2013 CARE Report remains relevant to the present circumstances as such studies are conducted infrequently, and the underlying societal attitudes and trends do not change over the course of four years. Moreover, the report reflects my professional knowledge about women’s experiences appearing in the local courts. For example, even though it is possible to apply for Protection Orders (operative for 1 year) and Interim Protection Orders (operative for 14 days) under the PDVA, if the house is not in the woman’s name we can only ask the judge for her to stay in the house for a short period (approximately one month) and there is no protection or guarantees for her. Also, in situations where it is state land permits issued under the Land Development Ordinance the house is often not in the woman’s name as land registration of state land often occurs in the name of the male head of household. Moreover, in my professional experience, courts often require material evidence of physical injuries before granting protection orders, and in some cases courts have ordered the women who are seeking the protection of the court to attend counselling together with the accused which has been known to compromise the mental and sometimes physical safety of the women. These orders are also supposed to be enforced by the police, however women who do not secure prompt protection in instances of breach and in some cases the police have worked in support of the man instead. The PDVA has no mandatory monitoring system to check compliance with the Orders made.

17. Finally, marital rape is not recognized as a criminal offence under Sri Lankan law, unless the couple is legally separated. At Suriya Women’s Development Centre, we have accompanied women who have attempted to report incidents of domestic violence including marital rape, and the general experience is that women, due to the lack of sensitivity and privacy in the police stations, do not speak of the continuous rape in their complaint.

18. Moreover, if the man is linked to or has any connection to the police, security forces or political actors, women have very little chance for protection or redress. For example, in 2016 we worked with a woman who was facing serious IPV from her husband who was a policeman. The police refused to take down her complaint or carry out any inquiry. Later her husband came home and beat her severely for reporting to the police. She went a second time to the police. Then the police brought her husband back to the house. She had to scream at them not to let him into her compound. When we later assisted her to report the case to the Deputy Inspector General of Police, he referred the case back to the same police station. She is now trying to file for a divorce, and he continues to threaten her. Rather than being an isolated incident, in my professional experience, this is reflective of the police’s general approach to women’s complaints of IPV.

19. In addition to apathy and enhancing women’s risks for IPV, women also face violence directly at the hands of state agents, including police officers, politicians and their security personnel. [The Applicant]’s description of the acts/behaviours and appearance of the bodyguards in her supplemental testimony is consistent with my understanding of the relevant bodyguards of politicians in Sri Lanka (politician’s bodyguards are usually drawn from the Ministerial Security Division, which is part of the police force). Since they are part of the police it is almost impossible to take any legal action against the perpetrator because the police will not carry out proper investigations. In addition to my own knowledge and professional experience of this fact in the Sri Lankan context, they have also been news reports about women and children being assaulted by security personnel linked to political parties, including a 13 year old girl that was raped by four men linked to a UPFA politician in 2012. These are all high profile cases as they involve politicians and were prominent in the news media so there is higher visibility, public outrage and some measure of state legal action. However, poor women who are otherwise vulnerable do not receive the same support and therefore have little or no possibility for protection let alone redress. Without such immediate public outcry, women are often unable to meet the evidentiary hurdles put in their place to make their case, including providing physical evidence and identifying specific perpetrators. Women’s own testimony is often not enough, especially with the passage of time since the incident.

20. Compounding the problems with reporting violence to the police is the fact that there are very limited shelter services for women to go to in order to escape violence. Although the PDVA was enacted in 2005, ‘the first State operated shelter for women affected by domestic violence was only set up in 2012’. The present government has established two shelters, one devoted to survivors of trafficking and the other for survivors of violence. However there does not seem to be awareness of shelters or a formalized referral system that courts can follow. The Ministry of Women and Child Affairs (MWCA) currently has no meaningful programs that provide social security or any other forms of protection for women victims of domestic violence. According to MWCA, a priority activity for 2017 is to facilitate ministry and civil society coordination to deliver shelter services, including enhancing ability to manage and run current shelters. It is my understanding that these are not state-run shelters, but rather providing short-term funding to NGO’s to operate shelters in certain areas of the country. For example, the plan notes that while the Ministry constructed 4 shelters in Battlicaloa, Jaffna, Mullaitheevu and Ratnapura, no staff has been recruited to run the shelters as of June 2017.

…

23. In my professional opinion, considering the case load (as described above) these services offered by the few NGOs cannot respond to the demand of IPV cases and are over-stretched. NGOs also cannot provide long term care and protection due to over- burden of cases and lack of funding. As a result, women who need long term psychological and trauma support, which are scarce and hard to access, as well as help to relocate and rebuild their lives, would face risks in returning to Sri Lanka. There are no systems to provide livelihood or other economic assistance in respect of relocation and recovery and reintegration of women like [the Applicant] who have been outside the country for a number of years, and who are also lacking family support and other social networks. This is a dangerous cycle as the isolation and lack of integration may enhance her risk of violence.

24. It is also a significant contextual factor that [the Applicant] has experienced violence since childhood having been forcibly married at 13.5 years of age. Although the law sets the age of marriage at 18 (and girls can be cohabit at 16 with consent of parents), child marriage continues to be a significant problem even today. According to UNICEF’s Child marriage Baseline Estimate 2015, ‘there are over 20,780 girls aged between 12 to 17 years in Sri Lanka who are married or in cohabiting relationships before they reach adulthood’. Also, according to the Family Health Bureau, 5.3 percent of all registered pregnancies are teenage pregnancies. In Sri Lanka, current socio-cultural practices and legal, economic and social security-related factors, are the leading causes of child marriage and teenage pregnancies. Therefore, what the law says and what happens on the ground are often two different matters.

25. The situation in respect of violence against women is grave such that the Prime Minister established a Task Force on Violence against Women and Girls in May 2013. The Task Force has identified the most significant problems and made many recommendations including the following ‘very high priority’ ones which are pertinent to the present case: (1) strengthening the women and children’s desks; (2) comprehensive investigation of complaints of violence against women; (3) more efficient prosecution of sexual and gender based violence cases, and (4) victims and witnesses protection. Taken together, these four areas also speak to the most serious weaknesses in the Sri Lankan justice system that leaves women highly vulnerable to not only being denied justice, but also being re-victimized when they try to seek help. These problems have been recently acknowledged through sustained civil and professional organizational pressure on the issue of gender violence. While a stated commitment to address them on the part of the government is a positive development, the reality is that these statements have not materialized as practical supports for women who experience IPV in Sri Lanka.

26. A good example of the disconnect between the law on paper and the law on the ground is the Prevention of Domestic Violence Act of 2005 (PDVA), which remains the only legal resource for women who have experienced violence to access protection orders. In addition to practical barriers mentioned above with regard to bringing a legal action, the Act has not resulted in meaningful protection due to significant implementation problems in relation to operationalizing protection orders. In particular, enforcement of orders is not supported by state machinery as services and personnel fail to provide protection to women who choose to litigate. As a result, even when an order is made, women have to look after themselves and hope that the accused does not attempt to breach the order. The legal nature of the order is the only deterrence, although given the high levels of impunity with which IPV occurs abusers are not deterred in reality. The other difficulty, mainly as a result of limited training and guidance received by Magistrates on the purpose and implementation of the Act, is the social and cultural norms that have permitted the use of discretion in making protection orders. It has been the experience of lawyers working with women victims that courts appear to try to keep the family together as opposed to addressing the emotional and physical harm that is predicted. By foregrounding the purpose of keeping the family together, orders have time and time again compromised the security and safety of victims.

27. In my professional experience, the Sri Lankan police are insensitive to complaints of domestic violence, and commonly adopt practices contrary to law such as trivializing women’s experiences and delaying initiating any action on the complaint. Over a decade of working to support women through the justice systems and from my professional experience of many other women’s organizations across the country, I know that the prosecution of these cases are very poorly conducted. There is a strong culture of not laying criminal charges in IPV situations. It is very rare that the support of the police is extended to punishing perpetrators of IPV. Instead of proceeding as a criminal matter under the Penal Code in the Magistrate’s Court (such as assault), IPV often proceeds as a family law matter instead and women can only seek remedies under the PDVA. Even where a criminal complaint is pursued, there are lengthy delays in bringing the matter to trial, as well as during the trial process itself, and oftentimes the abuser is acquitted of the charges. In addition, the police have no system of providing or accessing any other government services that could provide protection for such complainants.

…

30. There is a new Victim of Crime and Witness Protection Act (VCWP) as of 2015. The act spells out the rights of victims and witnesses of crimes, including right to privacy, compensation, restitution, medical and other services, as well as the right for victims to make a complaint about a crime and have it taken down and investigated.However, there is a lack of general awareness about this VCWP and the services available to victims and witnesses, leading to the belief that there is lack of political will to actually implement the Act. In my professional opinion, even though these new laws exist in paper, they have not translated into real safety and protection for citizens, particularly women who fit the profile of [the Applicant].

31. In addition to problems with the justice system and risk of ongoing unmitigated violence, single women, especially survivors of violence like in this case, face many serious challenges in establishing themselves in Sri Lanka.  In particular, the lack of adequate psychological support and community and social assistance is a serious issue.  It is estimated that only 20 percent of those needing psycho-social care and treatment actually receive it.  Mental health and psychological care services in Sri Lanka are inadequate owing to poor funding, an insufficient number of trained psychologists and medical officers, regional disparities in service provision, poor referral systems, and the lack of social protection for patients and families.”

77.  The Report then arrived at the following conclusion about the risks the Applicant may face upon her return to Sri Lanka:

“ 33. Based on my knowledge of the country situation as outlined above, I find [the Applicant]’s experience of child marriage, IPV and assault by security personnel to be entirely plausible in the Sri Lanka context. I have serious concern for [her] safety and well-being if she were to be returned to Sri Lanka, where she has no realistic access to legal or social supports. I also do not believe she would be able to access or receive protection if she were to experience violence in the future, and especially if security personnel were already involved in her victimization.”

78.  However, a careful examination of the Board’s Decision show that the Report does not actually add any new facts that were not otherwise before the Board in its assessment of the problems of sexual violence and discrimination against women in Sri Lanka, in which the adjudicator made, as an example from amongst the abundance of COI materials before it, the following reference to the United States State Department 2014 Report:

“ 131. The law prohibits rape and domestic violence, but authorities did not enforce it effectively. Sexual assault, rape, and spousal abuse remained pervasive societal problems. According to a September 2013 UN study, about 10 percent of Sri Lankan men in relationships admitted sexually abusing their partners. The law specifically addresses sexual abuse and exploitation and contains provisions in rape cases for an equitable burden of proof and stringent punishments. The law considers marital rape an offence only in cases of legally separated spouses. In November the media reported that 45 victims of marital rape entered the local NGO Women in Need’s nine crisis centers in the country each day, or approximately 1,350 cases per month. An average rape case took six to 12 years to resolve. Observers believed domestic violence was widespread, although discussion of the problem was not common. According to the 2013 UNICEF Sri Lanka Annual Report, ‘reports of abuse and violence against women and children are progressively increasing and vary across districts.’”

79.  The adjudicator then went on to note the similar problems as raised in the Report:

“ 132. While the law could potentially address some of the problems of sexual assault, many women’s organizations believed that greater sensitization of police and the judiciary was necessary to make progress in combating the crime …

133. Police recorded more than 1,400 incidents of rape of women and children during the first nine months of the year, but this number was an unreliable indicator of the degree of the problem because many victims were unwilling to file reports. Services to assist survivors of rape and domestic violence, such as crisis centers, legal aid, and counselling were generally scarce due to lack of funding.

…

146. The comment of the USSD 2016 Country report on Human Rights Practice—Sri Lanka stated that:

‘Service to assist survivors of rape and domestic violence, such as crisis centers, legal aid, and counselling, were generally scarce nationwide due to a lack of funding.’”

80.  The Board nevertheless also noted there are various voluntary organizations to provide assistance to women in Sri Lanka including nine crisis centers and five police station counselling desks to help victims, whilst other NGOs have been formed to help bring about transformative changes based on feminist principles on ideological and practical issues of concern to women: [142] – [145].

81.  In my judgment the question therefore to ask is whether the Expert Report, in the setting of all the other evidence available to the Board, disclose material of such substance that the Board was obliged to address them expressly and explain what it made of them.

82.  As it is not contended that the impact of the Expert Report ought to have been so great that the only conclusion open to the Board was to accept that the risks faced by the Applicant if returned to Sri Lanka would be so real and substantial that she must not be returned there, and as it was merely one piece of evidence, I do not see why, for the reasons given above, the Board was obliged to deal with every piece of evidence when its conclusions based on the whole of the material before it are not contradicted or affronted by the contents of the Expert Report.

83.  As held by the United Kingdom Court of Appeal in S v Secretary of State for the Home Department [2002] EWCA Civ 539 at [24], a public decision-maker is not obliged to deal with every single point or every single relevant document raised in the case before him, it is generally sufficient that the principal points are addressed, and that the duty to give reasons varies from case to case, as there are situations where the duty demands no more than a very summary treatment of the subject-matter.

84.  The above propositions are in line with the recent decision in Lam Ar Fu Peter v Building Authority [2019] HKCA 1019 (CAMP 70/2019, Lam VP and Au JA, 10 September 2019), when the Court of Appeal agreed with the following observations of the lower court in its decision ([20]):

“ … In so far as it is complained that the Tribunal did not deal with some authorities referred to by the Applicant at the hearing of the appeal, the Tribunal is under no duty to deal with all the authorities mentioned by the Applicant. It is a matter for the Tribunal to decide what authorities are relevant and required to be dealt with in its determination. The court, in the exercise of its supervisory jurisdiction in judicial review, can only intervene where the Tribunal makes an error of law, or decides irrationally, or acts in a manner which is procedurally unfair.”

85.  In the circumstances and for the reasons above, I do not find any error of law on the part of the adjudicator for having not specifically referred to the Expert Report in her consideration and determination of the Applicant’s claim.  Accordingly I reject Ground 2 of the Applicant.

Ground 3:  Erroneous internal relocation findings

86.  In this Ground the Applicant targets the adjudicator’s findings that the Applicant has a viable internal relocation option by finding that it would not be “unduly harsh” for her to relocate “outside her immediate vicinity” within Sri Lanka, of which Mr Parker submits were erroneous in that the adjudicator failed to provide any reasoning or supporting evidence for this assertion and erroneously concluded that the Applicant has a viable option without identifying where in Sri Lanka that might be.

87.  Mr Parker further argues that the adjudicator also failed to take into account relevant factors highlighted in the Applicant’s evidence and the Expert Reports, including the fact that she suffers from PTSD as a result of her highly traumatic experiences of violent sexual assault in Sri Lanka, that she is totally without family support in Sri Lanka, that her allegedly “vast overseas working experience” pertains to low-skilled domestic work which does not support the adjudicator’s bare assertion that she will be able to find appropriate employment opportunities in Sri Lanka to support her living when there is no evidence or analysis as to the availability of such work in Sri Lanka.

88.  Mr Parker submits that the adjudicator’s mere assertion that she had considered “all evidence and material” without any relevant analysis of such material is insufficient, and that her finding on internal relocation is irrational and unsafe, and that her decision is liable to be quashed on this basis.

89.  Ms Cheung for the Director however argues that the requirement to identify the place or region in Sri Lanka for internal relocation had in fact already been met in the Director’s earlier decision, and was also raised in his skeleton submission in the Applicant’s appeal before the Board, and that the adjudicator did consider specifically the situation of the Applicant in the Board’s decision, including the facilities in Sri Lanka for women in need of psychological and trauma support, and shelters and assistance for victims of domestic violence who lacked family support, while the Applicant’s PTSD and relevant psychological assessment was also expressly noted in the Board’s decision.     

90.  In any event, Ms Cheung argues, given the adjudicator’s findings on the lack of power, resources or interest of the Applicant’s husband or son or the two rapists to locate the Applicant outside the home locality, and the availability of reasonable state protection, it was unnecessary for the adjudicator to discuss at length the viability of internal relocation.

91.  As held by the Court of Appeal in TK v Jenkins & anor [2013] 1 HKC 526, the rationale behind internal relocation is that if the risk of persecution or torture is a localized one, and that it is not unreasonable or unsafe for the claimant to relocate to another part of the country in question, there is no justification for affording internal protection under either the Refugee Convention or the CAT, and in relation to the question of whether or not there is an internal relocation alternative, the burden of proof is on the claimant as it is for him to make out his case.

92.  While it was the Applicant’s case that her husband in 1993 used their children as leverage to force her to work overseas to earn money for him, in her supplementary statement for her appeal before the Board [HB/2/34/248,253 – 254], she also stated that in 2003 when the children were older, she was able to place them in the care of her mother before going to work of her choice in Cyprus when she stopped sending any money to her husband and demanded to separate from him and free from his control, as she stated:

“ 31. After the third contact, and after Ajith threatened to kill me, I begged my mother to look after the children. As I wanted my mother and children to be supported, I arranged to find work in Cyprus, and worked there from July 2003 to February 2008. At the time, my son was 17, and my daughter 14.

32. I worked in Cyprus without a break. This time, I did not send the money back to Ajith. I was paid by cheque and opened an account in Cyprus. From time to time I remitted money from the account to my own account in Sri Lanka and transferred some to my children.

33. I then worked in Abu Dhabi from July 2008 for about 2 years.

34. Before I left Cyprus, I told Ajith that I had no feelings for him and I asked to be left alone. He did not respond. When I left Sri Lanka, I wrote to him saying I wanted to separate from him. We did not discuss this at the time, but I know that he was very angry about it from the way he treated me later.

35. Para 37 NCF. While I was staying at my mother’s place, Ajith came and abused me verbally. He was furious that I was not returning to him, and I had not continued to pay him money from my earnings.

36. I purchased a house, and Ajith came and tried to live with me and his children. We slept in separate rooms. He did not hurt me physically, only because the children were adults by this time, and they were with me all the time. He still scolded me with dirty words and called me foul names.

37. My children were married in the same year I first came to Hong Kong—2012. My son was married in April of that year, my daughter in May.

38. I transferred my house to my son, on or about the time of his wedding.  By this time, my son had turned against me and was behaving increasingly like his father.  Basically he demanded that I give the house to him, and then go away, again, overseas.”

93.  It was in these circumstances that the Applicant came to work in Hong Kong in September 2012, and that it was in February 2013 when she returned to Sri Lanka that she was raped by the two bodyguards whom she said had warned her not to go to the police, but in her supplementary statement, she concluded by stating that she cannot return in safety and security to Sri Lanka because she feared that she could not hope to receive proper psychological treatment for being abused by her husband, and that she would be again treated like a slave by him or his family: [54] – [55] (HB/2/34/256):

“ My fear

54.  My fear of ill-treatment and torture in the future if I return, is very real. I cannot return in safety and security to Sri Lanka. Nor can I hope to receive any or sufficient psychological treatment for the years of unrelenting violence and abuse at the hands of my husband.

55.  The Director of Immigration has completely failed to consider the fact that I have been treated like a slave in Sri Lanka by my in-laws, my husband, and that there is a real possibility that this will continue in the future.  For so many years, my husband exploited me for money, and did so without any repercussions to him.  I do not believe that I can obtain any protection from such exploitation happening in the future.”

94.  It was therefore neither her case that the Applicant also feared harm from those two rapists whether they were state agents or otherwise, or of any state officials, and that the only stated source of fear that she had if refouled to Sri Lanka was of further exploitation by her husband that he may prostitute her again or force her to work like a slave to make money for him, as it was also so stated by her lawyer in her skeleton submissions before the Board: [23] (HB/2/37/278):

“ 23. The Appellant was then subjected in the violent rape, at the instigation of Ajith: see [45] – [53]. This brutal assault is indicative of the way in which Ajith viewed, and likely still views, the Appellant—as his slave, a possession he could use to make money. During the attack, Ajith was calmly sitting outside the house, drinking.”

95.  Given the submissions from the Applicant and the facts of her own case, and in the absence of any reliable evidence other than some hearsay that the two rapists who happened to dress similarly in black with earpieces were bodyguards of some politicians but made no further contact with the Applicant after the rape incident, the adjudicator was in my view entitled to find no evidence of any State involvement in whatever ill-treatments the Applicant may have been subjected to prior to her departure from Sri Lanka, nor would her husband have the resources or manpower to locate her outside her home locality in Sri Lanka, as she did in the Board’s decision: [164] – [167] (HB3/48/429).

96.  As for Mr Parker’s submission that the adjudicator failed to take into account various factors highlighted in the Expert Reports in concluding that the Applicant has a viable option of relocating within Sri Lanka, it was mainly in the later Addendum dated 14 February 2018 that Ms Emmanuel expressed concerns for the problems which the Applicant would face to relocate within Sri Lanka, including the inadequacy of organizations to provide support for women victims and survivors of IPV to re-establish themselves, and the requirement for nationals to register with the local authorities which may lead to increased risk of being located by the Applicant’s husband which Ms Emmanuel feared would in fact cause further hardship to her rather than to ensure her safety from future harm and would not be effective in avoid risk of harm from her Husband in any case [HB/3/46/397 – 399].

97.  While again there does not appear to me any specific reference of the Addendum in the Board’s determination of internal relocation in its decision, it did refer to the relevant COI as to the requirement for Sri Lankan nationals to register with the local authorities, but found that such requirement has since the end of the civil war in 2009 been relaxed, and that Sinhalese people, of which the Applicant is one, were never required to register ([161] – [163]), and found no reliable evidence that her husband would be able to locate her anywhere in Sri Lanka ([164]).

98.  As for the Applicant’s concern of not being able to receive psychological treatment for the years of abusive treatments by her husband,of which she was assessed to be suffering from PTSD in the Psychological Report dated 8 January 2018 [HB/3/44/372 – 378] which summarized her psychological conditions as follows:

“ [The Applicant]’s current symptoms and the detailed diagnosis above are entirely consistent with her reported history of trauma — including her experiences of chronic physical and emotional abuse by her husband, since adolescence. Her sense of helplessness, worthlessness and shame are plausibly due to the lack of support and trust from family; and her experience of being disowned by her father upon knowing that she is married, and of being disowned band rejected by her children. Her abuse by the two men further increased her sense of helplessness, worthlessness, shame with added fear of being killed. Such extreme traumatic experiences can result in significant emotional distress including fear, insecurity, shame, helplessness as well as impairment to the retrieval of information. These experiences may have also formed the negative beliefs that she is unworthy and the world is dangerous and others are not to be trusted. To cope with such psychological difficulties, she tries to isolate herself to avoid further harms from others while living in Hong Kong. Although her life is not being threatened at the moment, the development of PTSD in response to the previous traumas, in part affects her ability to remember, and her ability to sleep. The sleep deprivation may perpetrate a vicious circle which exacerbates her physical problems, dampens her ability to process as well as recall information, intensify her anxious and depressive moods, and aggregate her dissociative symptoms. As a result, [the Applicant] continues to suffer from severe emotional disturbance on a daily basis which impairs her functioning.”

99.  The Board was clearly aware of this report ([116]), the purpose of which was, as stated in the reason for referral at the beginning of the report, for an “independent psychological assessment regarding her current mental state, well-being and any psychological effects of her claimed traumatic experiences”, and of which it made specific reference to The Asylum Gender Guidance from the Immigration Appellate Authority of the United Kingdom as to the effect of emotional trauma and depression which may affect a victim’s ability to give testimony, her demeanour and nature of the evidence which she gives.  In the Board’s decision the adjudicator found that the Applicant’s responses at her appeal hearing fluent and fair, and that her emotional trauma and depression had not affected her ability to give evidence: [117] – [119].

100.  While the Psychological Report did find the Applicant’s current symptoms consistent with her history of traumas and abuses dating back to the time when she was married to her husband at just over the age of 13, it seems even on her own case and as stated in her submissions to the Board, she managed to get away from her husband’s abuses and control since 2003 by being able to place her children with her mother and to make her own decisions over her employment in Cyprus and other places without sending any money to him, thus severing any further connection, financial or otherwise, with her husband for almost 10 years until 2012 when on that one occasion when she returned to Sri Lanka in between jobs that she was raped by those two men arranged by him.  It is against these facts that the Psychological Report should be considered, and was considered by the adjudicator, and as such the Report did not provide any detailed prognosis or mental health treatment for the Applicant.

101.  In Januzi v Secretary of State for the Home Department [2006] 2 AC 426, which was applied in TK v Jenkins, supra, it was held by the House of Lords that the test for internal relocation is whether it is reasonable and not unduly harsh to require the claimant to relocate elsewhere in the country of origin, as Lord Bingham of Cornhill stated as follows ([21]):

“ … The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant’s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.”

102.  Given the evidence before the Board even on the Applicant’s own case, and given the Board’s finding of no real risk of the Applicant suffering serious harm from her husband which in my view must fall on the other end of the spectrum, I do not find it irrational or unsafe in the adjudicator’s determination that internal relocation would be available to the Applicant having regard to the general circumstances prevailing in Sri Lanka.

103.  Lord Bingham also made the following observations on decision- makers examining whether a claimant can reasonably be expected to stay in a part of the country of origin having regard to the general circumstances prevailing in that part of the country and to his personal circumstances ([19]):

“ … Suppose a person is subject to persecution for Convention reasons in the country of his nationality. It is a poor country. Standards of social provision are low. There is a high level of deprivation and want. Respect for human rights is scant. He escapes to a rich country where, if recognised as a refugee, he would enjoy all the rights guaranteed to refugees in that country. He could, with no fear of persecution, live elsewhere in his country of nationality, but would there suffer all the drawbacks of living in a poor and backward country. It would be strange if the accident of persecution were to entitle him to escape, not only from that persecution, but from the deprivation to which his home country is subject.It would, of course, be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment or punishment.”

104.  Given the immense significance of such decisions which decision-‌makers have to make, Lord Bingham agreed that there should be some guidance on the approach to reasonableness and undue harshness in this context, of which he found helpful from those given in the UNHCR Guidelines on International Protection of 23 July 2003 (“IFR”) in paragraphs 28 – 30:

“ Respect for human rights

28. Where respect for basic human rights standards, including in particular non-derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio-economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative.

Economic survival

29.  The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.

30.  If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable.  For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection.  In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there.  A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship.”   

105.  Lord Bingham also found the following passage on socio- economic factors in Storey, ‘The Internal Flight Alternative Test: The Jurisprudence Re-examined’ (1998) 10 International Journal of Refugee Law, 499, 516 helpful:

“ Bearing in mind the frequency with which decision-makers suspect certain asylum seekers to be simply economic migrants, it is useful to examine the relevance to IFA claims of socio-‌economic factors. Again, terminology differs widely, but there seems to be broad agreement that if life for the individual claimant in an IFA would involve economic annihilation, utter destitution or existence below a bare subsistence level (Existenzminimum) or deny ‘decent means of subsistence’ that would be unreasonable. On the other end of the spectrum a simple lowering of living standards or worsening of economic status would not. What must be shown to be lacking is the real possibility to survive economically, given the particular circumstances of the individual concerned (language, knowledge, education, skills, previous stay or employment there, local ties, sex, civil status, age and life expectation, family responsibilities, health; available or realisable assets, and so forth). Moreover, in the context of return, the possibility of avoidance of destitution by means of financial assistance from abroad, whether from relatives, friends, or even government or non-governmental sources, cannot be excluded.”

106.  In adopting the approach laid down in Januzi, Lam J (as he then was), in his first instance decision on TK v Jenkins & anor HCAL 126/2010, 21 October 2011, which was upheld by the Court of Appeal on appeal as noted above, followed the approach laid down in Januzi and stated ([81]):

“ It follows that there cannot be any rule of law pre-empting the possibility of internal relocation in a country simply because there is a consistent pattern of gross, flagrant or mass violations of human rights. On the other hand, as a matter of common sense and assessment of a CAT claim on its merits, insofar as a claimant is able to show that his ground(s) for believing that he would be in danger of being subjected to torture has a connection with such state of affairs, it would not be difficult for an adjudicator to conclude that it is unreasonable to expect him to relocate.”

107.  His Lordship then went on to hold that while the IFR Guidelines can provide useful guidance, they must not be treated as subsidiary statutory provisions which must be followed in all cases, and that a decision cannot be challenged simply on the basis that no reference was made to the Guidelines by the adjudicator: [86].

108.  In the context of the present case, it is clear to me from the Board’s decision that the adjudicator did take proper account of all the relevant circumstances pertaining to the Applicant and her country of origin, and upon those factual findings summarized by Ms Cheung above, including the fact that after the rape in February 2013 the Applicant remained in Sri Lanka until 16 March 2012 without further incidents when she was able to leave and to return to Hong Kong without any difficulty, and that during which there were no further threats or ill-treatments either from her husband or those two rapists other than a warning from the latter not to go to the police.  As such and having considered the relevant COI materials as to the situations in Sri Lanka and with the Applicant’s undisputed work experience in various different countries in the past, the adjudicator was in my view entitled to conclude that it was reasonable and not unduly harsh to expect her to relocate to other part of Sri Lanka away from her husband’s locality, such as its capital Colombo where she was born as duly noted by Ms Cheung above ([51]), notwithstanding those inadequacies prevailing in Sri Lanka referred to in the Applicant’s Expert Reports or her PTSD condition.

109.  In the premises and for all these reasons, I reject Ground 3 of the Applicant.

Ground 4: Failure to make findings under BOR 4/Article 8 of ICCPR

110.  In this Ground the Applicant complaints that the adjudicator failed to make any findings in relation to risks contrary to Article 4 of the HKBOR, an absolute and non-derogable right of not to be held in slavery and slave-trade in all their forms, and that it is unlawful and contrary to the Director’s stated policy to remove a person from Hong Kong to a place where there is a risk of treatment contrary to absolute and non-derogable rights under HKBOR such as Article 4, which is engaged on the facts of her case, and was expressly raised before the Board as follows:

(a)  that she was a victim enslavement and trafficking as shown in her personal testimony and applicable COI;

(b)  that the Director’s Further Decision was made pursuant to an administrative process put in place in September 2016, following the Court of Final Appeal’s decision in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, to screen for a violation of all absolute and non-derogable rights;

(c)  that the Board’s own procedural guidelines recognize that BOR 2 is an example of a provision which contains an absolute and non-derogable right, that the application of such rights are non-exhaustively defined and hence BOR 4 is also engaged; and

(d)  that COI on Sri Lanka demonstrates that it has problems with human trafficking where women and children are particularly vulnerable.

111.  Hence Mr Parker submits that the adjudicator made no finding on any of the facts, evidence or the law in respect of this aspect of the Applicant’s claim under BOR 4 risk is a material error.

112.  Ms Cheung for the Director however argues that the Applicant has never specified what precisely her claimed fear was in relation to BOR 4, and that in any event on the facts of the Applicant’s case, she submits that it cannot be argued that there was any future risk of slavery, servitude or forced or compulsory labour faced by the Applicant even if one were to accept the argument that she may have been enslaved by her in-laws when she was a child or by her husband during the marriage, but upon reaching adulthood and since 2003 she had been at liberty to decide on her employment, her property and finance, and the nurture of her children.

113.  In my view this Ground can be dealt fairly quickly.  In the recent case of ZN v Secretary for Justice [2018] 3 HKLRD 778 when the decision was handed down after the Board’s decision, the Court of Appeal held that article 8 of the ICCPR did not cover human trafficking for forced labour as such, and that article 4 of the HKBOR does not cover either human trafficking as a form of modern slavery by itself or at least human trafficking for forced labour, as Cheung CJHC (as he then was) concluded at p 830 in his judgment:

“ 132. For all these reasons, I am not able to accept the expansive interpretation contended for by the applicant to the effect that art.4, when given a generous interpretation, covers either human trafficking (as a form of modern slavery) by itself, or at least, human trafficking for forced labour. I reject the argument. In my view, art.4 of our Hong Kong Bill of Rights covers what it says, that is, slavery and the slave trade in all their forms, servitude, and forced or compulsory labour. Human trafficking, or human trafficking for the purpose of forced labour, is neither a necessary nor sufficient element for a violation of our art.4. As I just mentioned, this interpretation that I favour is arrived at by considering the contemporary situations in Hong Kong, as well as the relevant international developments. Circumstances and needs are not static, and the relevant international scene may develop further. The scope of application of art.4 may change accordingly. But that is something for the future.”

114.  Given the Applicant’s claimed fears stated in her supplementary statement for her appeal before the Board as already noted above which did not include human trafficking, and that in her skeleton submissions by her lawyer from DLS in which her stated issues for the Board’s determination in relation to article 4 only as to whether her claimed ill-treatment from her husband amounts to a breach of prohibition of slavery [HB/2/37/285], and on the basis of the Board’s factual findings as noted above, it is my view that the adjudicator was entitled to find it unnecessary to consider article 4 of HKBOR per se in the circumstances of the Applicant’s case.  Accordingly I also reject this Ground of the Applicant.

Ground 5:  No second limb to persecution test

115.  In this Ground the Applicant targets the adjudicator’s error of law and departure from stated persecution when applying the test for persecution risk by proceeding on the basis that the test involves two hurdles, namely that the claimant must qualify as a refugee within the meaning of Article 1 of the Refugee Convention, and that he or she must satisfy a further distinct hurdle in Article 33 in the Board’s Decision ([83]), which Mr Parker submits is an erroneous interpretation of the Refugee Convention, as it is well-established that Article 33 was not intended to impose an additional barrier or hurdle to the enjoyment of non-refoulement protection by refugees who have already qualified under Article 1 and are entitled to the protection without further qualification.

116.  Mr Parker further submits that the adjudicator’s approach is not only erroneous in law, but also contrary to the Director’s stated policy on determining claims under persecution risk, and that the addition of a further hurdle based on a plainly wrong reading of the Refugee Convention is one which operated to the Applicant’s detriment, and as it was a fundamental error of law, the Board’s decision is liable to be quashed.  

117.  Ms Cheung argues that this complaint is actually a misreading of the Board’s Decision which is a mere compilation of the relevant provisions in the Refugee Convention when the adjudicator linked the two relevant articles with the word “and” as a matter of editing style, as it is clear from the later parts of the Decision that the adjudicator did not apply any two-hurdle threshold, when she stated crisply and accurately in §179 that “[t]o avail herself of the protection under the refugee Convention, [the Applicant] must show she comes within the definition of Article 1A of the Convention”.

118.  It is of course not possible for me to second guess the adjudicator’s editing style, which is in any event not accepted by the Applicant as such, and on plain reading of the way the adjudicator set out the law on persecution risk in [83] of the Decision [HB/3/48/415 – 416],it does appear to me that the adjudicator might have meant that the test for persecution involves two hurdles, but I agree with Ms Cheung that since the adjudicator did not accept that the Applicant came within the meaning of a refugee under Article 1 of the Convention which led to her conclusion that her claim for protection under persecution risk therefore failed, it is immaterial whether the adjudicator had considered there to be a second hurdle, as it is clear from the Decision that she never engaged herself in any analysis of such in arriving at her conclusion.  In the premises I do not find any merit in this fifth and final ground of the Applicant.

Conclusion

119.  In the circumstances and for all the reasons given, I do not see any ground for setting aside the Board’s decision in rejecting the Applicant’s claim for non-refoulement protection based on its findings as to state protection and internal relocation by way of judicial review, and accordingly her application is dismissed.

120.  As for the costs of the proceedings, given the result of the rolled up hearing of the three applications with which neither parties were wholly successful, I propose to make an order nisi that there be no order as to costs to be made absolute at the expiration of 14 days, and that the Applicant’s own costs to be taxed on the Legal Aid Regulations.

121.  Last but certainly not least, I am grateful to counsel of both sides for their valuable assistances rendered throughout of what must be considered as a most difficult case.