KULAPU WADUGE CHANDRANI SILVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 515/2024, [2025] HKCA 393

On Appeal From [2024] HKCFI 3079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 515 OF 2024

(ON APPEAL FROM HCAL NO 2023 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 November 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 August 2018.

BACKGROUND

2.  The Applicant is a national of Sri Lanka. She first arrived in Hong Kong to work as a foreign domestic helper. Her last employment contract was prematurely terminated on 24 November 2015. She had overstayed since 11 December 2015. On 20 March 2018, she was arrested by the police. In April and May 2018, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by (i) her abusive ex-husband (Jude Samantha Jayasuriya) who was a gang member, (ii) other members of her ex-husband’s gang, and/or (iii) members of a rival gang of her ex-husband’s gang. Details of the Applicant’s claim have been summarised by the Judge at §§4-8 of his Judgment dated 29 November 2024.

3.  By a Notice of Decision dated 23 August 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 29 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§13-15 of the Judgment, as follows:

“[13] The Board considered that the [Applicant] had given a largely consistent account of her past experience in Sri Lanka and found her to be a truthful witness. Her claims also accorded with the country of origin information in general about the nature and prevalence of domestic violence in Sri Lanka [77].

[14] The Board accepted that the [Applicant] was forced into marrying her ex-husband after being raped by him and that she was subjected to constant abuse at his hands thereafter, including kidnapping and further rape [83]. Although it was accepted that the [Applicant’s] ex-husband might have continued threatening her through her family in recent years, the Board considered that such threats would unlikely materialise given that the [Applicant] had not been harmed by her ex-husband since 2004 despite her return to Sri Lanka on at least three occasions [78], [84]-[85]. Meanwhile, the Board rejected the [Applicant’s] claimed threat from her ex-husband’s fellow gang members and from the rival gang because the former had never harmed her in the past, while the claim against the latter was merely speculative [86]-[87]. In any event, state protection and internal relocation would also be available to the [Applicant] [89]-[92].

[15] Based on such findings, the Board rejected the [Applicant’s] claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [13]-[22], [93]-[96]. The Board therefore dismissed the [Applicant’s] appeal and confirmed the Director’s decision.”

THE JUDGMENT

5.  On 16 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s intended grounds of judicial review, as set out in a document entitled “Grounds of Appeal” attached to her supporting affidavit of the same date, have been summarised by the Judge at §17 of the Judgment, as follows:

“(1) The Board had accepted some of her evidence, yet, it came to its conclusion which is illogical.

(2) The Board speculated that state protection is available to her. However, the Board had not given sufficient weight to the USSD report[5], which notes prevalence of corruption in Sri Lanka and that protection for women there is inadequate.”

6.  On 29 November 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[19] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

…

[21] For the reasons given, on the one hand, the Board had accepted the [Applicant’s] evidence in relation to her being raped and assaulted by her ex-husband, Jude, which forms the general background of her claim, and on the other hand, it found that she does not have real risks of harm if she returns to Sri Lanka. This is because the Board had to determined her claim in relation to all the applicable risks by reference to her past experiences, the probability of future risks, state protection and internal relocation. Even if the Board accepted some facts of her claim, it does not necessarily mean that those accepted evidence is sufficient to support her claim if it does not meet the requirements of the applicable risks. Thus, the Board concluded at paragraph 93 of the Board’s Decision:

‘On the facts accepted, the Board does not consider there to be anything which creates a risk of severe pain or suffering being inflicted on the Appellant should she return to Sri Lanka. Consequently, the Board is not satisfied that there are substantial grounds for believing the Appellant to be in danger of being subjected to torture if returned to Sir Lanka.’

[22] The [Applicant] also complains that the Board had not given sufficient weight to the USSD report, which she claimed, to note prevalence of corruption and protection for women in Sir Lanka is insufficient. In fact, the Board had considered this report. At paragraph 89, the Board said:

‘… However, the USSD report also suggests both that there is genuine intent on the part of the government, and that some real progress is being made, as can be seen from the subsequent quote indicating that the police have conducted awareness campaigns at grassroots level to encourage women to file complaints, and that they continue to establish women’s units in police stations despite funding limitations. …’

[23] The Board had also researched on various agencies in Sri Lanka providing support which she may be able to access. See paragraphs 69-71. The [Applicant] was invited to make comments on those materials and information. The Board remarked:

‘72. The Appellant did not specifically respond to the matters raised by the Board, …’

[24] There is no valid reason that this Court should interfere with the Board’s finding of the facts.

[25] The [Applicant] fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal filed on 29 November 2024, the Applicant stated that she wanted to appeal. She also stated that she did not agree with the Judge’s decision because there were a lot of mistakes, but failed to give any particulars.

8.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 17 March 2025. Accordingly, she is deemed to have waived the right to have an oral hearing of her appeal and elected to have her appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

12.  The Applicant’s appeal against the Order has no merit, and is dismissed.