WARNAKULASURIYA SRIYANI SURINDRA FERNANDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 588/2017

[2018] HKCFI 1746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 588 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong legally on 14 November 2013 from Sri Lanka.  Having permission to remain in Hong Kong until 26 July 2014, the Applicant overstayed from 27 July 2014 and was arrested by police on 31 July 2014.  She was transferred to the Immigration Department on 1 August 2014 and was released upon recognisance on 10 September 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 August 2014.  Her NRF claim form was submitted on 16 February 2016.

2.  The Applicant attended a screening interview on 23 March 2016.  The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 16 May 2016 and by Notice of Further Decision (re BOR 2) on 2 March 2017.  The Applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 23 May 2016.  The Adjudicator of the TCAB, Mr William Lam, heard her on 25 April 2017.  The Adjudicator considered his appeal on all applicable grounds, including BOR 2.  The Adjudicator refused her appeal on 18 August 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 September 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a Sri Lankan national.  She was born in Negombo, Sri Lanka in 1966.  She received 10 years of formal education, attaining Form 4 in Sri Lanka in approximately 1982.  Until her marriage in 1984, the Applicant lived with her parents, who are now deceased, in Negombo.  The Applicant was widowed in 1997.  She has two children who are currently aged 30 and 28.  She was unemployed until 2001, whereupon she worked as a seamstress in Sri Lanka until May 2004 and then as a domestic helper in Cyprus (2005-2011).  She came to Hong Kong in September 2012 on a domestic helper (“DH”) visa.  Her first contract lasted only from 1 September 2012 to 6 September 2012, when she returned to Sri Lanka.  She obtained a second DH contract in November 2013, which lasted until 22 June 2014.  She applied for an extension of stay until 26 July but overstayed.  She was arrested on 31 July 2014.

5.  The basis of the Applicant’s claim arises out of events which occurred after her husband’s death, involving alleged abuse and death threats from her husband’s best friend (“N”).  Soon after her husband’s death, N became close to the Applicant and her children, who were young at the time.  However, this closeness transitioned into inappropriate advances and an eventual marriage proposal from N, which she rebuffed.  The Applicant cites four separate incidents in which N, whom she claims is heavily connected with the criminal underworld, would sexually assault her and, on the later three occasions, attempt to abduct her. She claims that the abuse partly stems from N’s wish for revenge after her stepbrother (“D”), got into an altercation with N when trying to protect her (“the first incident”).  The Applicant was dragged out of her workplace by N in May 2004, where he attempted to abduct her by forcing her into a three-wheeled scooter.  It is claimed that N was often with associates and during the third reported incident, arrived at the Applicant’s with three friends who threatened to kill the Applicant’s children whilst N attempted to remove her clothes and sexually assault her.  The Applicant was on occasions forced to move back to her family home in order to get away from N, and received reports from her neighbour that N would come to her house regularly, shouting abuse and death threats.  None of the four alleged incidents were reported to the police, since the Applicant feared that they were corrupt and would side with N.  After the third incident, the Applicant moved to Cyprus to work as a domestic helper.  The fourth incident occurred in February 2011, on her return to Sri Lanka, when she was accosted in the street by N, who again attempted to force her into a vehicle.  It was after this that the Applicant moved to Hong Kong and commenced her first work placement.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under “persecution risk”, the Applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

7.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of her claim.  The Director and Adjudicator must then assess the level of harm the Applicant says she fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that she is the subject of such risk.  Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision and Further Decision of the Director

8.  The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Sri Lanka at present.  Additionally, the Director referenced numerous reports which he had sourced to further investigate the Applicant’s position.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state her case and to supplement the evidence before the Director, which she did.  In coming to his decision to reject the Applicant’s claim under the various heads, he acted reasonably and explained his decision on the merits of the claim in a clear and intelligible manner.  His assessment found that due to the low severity and frequency of the mistreatment of the Applicant by N, that there was a low future risk of harm.  He did not accept that the Applicant came to Hong Kong to seek protection, suggesting that her motives were more likely to be to pursue employment opportunities.  He also highlighted the availability of state protection in Sri Lanka, which further decreased the likelihood of harm.  With regard to the information that N was connected to criminals in Sri Lanka and would be supported by the police, this information was found to be hearsay and, in any case, the Director identified that the Applicant could contact the Commission to Investigate Allegations of Bribery or Corruption in the circumstances where she felt that the police would be of no help.  It was not accepted that the Applicant faced a genuine and substantial risk of persecution or torture, as well as her BOR 3 rights being violated.  The Applicant’s non-refoulement claim was thus rejected.  In so far as the Further Decision is concerned, the Applicant was notified of her right to be considered under BOR 2 and was invited to make submissions thereon. She failed to do so.  Nevertheless, the Director considered whether there was a real and substantial risk that the Applicant’s BOR 2 rights would be infringed.  He found that there was no such risk and accordingly dismissed the claim.

Decision of the Adjudicator

9.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator found that the torture element of the claim failed on the “State Agent” requirement and, since N was not acting qua the capacity of the Government, torture could not be claimed. In any case, there was not a foreseeable risk of torture in the future.  The risk of BOR 2 and BOR 3 violations and persecution was also assessed and found to be insubstantial.  The Adjudicator also found the Applicant to be unreliable, citing the fact that she did not file a claim upon her arrival but waited until she was arrested as evidence to suggest a lack of credibility.  In any event, the Applicant could not establish a sufficient risk of torture or persecution and the appeal was dismissed.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  She has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1