HAPUTHANTHREEGE DONE NAYANA TUSHARI MANJULA v. THE PETITION TEAMS (SECURITY BUREAU)

HCAL 353/2018

[2020] HKCFI 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 353 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Sri Lanka who arrived in Hong Kong on 10 March 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 March 2013 or within 14 days of its early termination. On 31July 2011 her contract was prematurely terminated, but she did not depart and instead overstayed until 8 December 2015 when 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 creditor for failing to repay her loan. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Wellawaththa, Western Province, Sri Lanka. After leaving school she worked in the factory, married her husband with whom she has a son.

3.  In 2010 she wanted to work as a foreign domestic worker in Hong Kong, and so she borrowed a loan of 700,000 rupees from a money lender to pay for her employment agency fees, which loan she was to repay within two years with monthly interest payment at 10% of the principal sum.

4.  On 10 March 2011 she arrived in Hong Kong to start her employment, and from her salary she remitted the monthly interest payments to her creditor.  However, on 31 July 2011 her contract was prematurely terminated, and without any income she was unable to make any further interest payments to her creditor who then made death threats against her to her husband and family and by harassing them in Sri Lanka.

5.  The Applicant therefore applied for extension of her visa in order to look for another employment, but when that was not successful, and when the extension of her visa expired,she did not return to Sri Lanka for fear of harm from her creditor and therefore overstayed in Hong Kong for the next four years during which her creditor continued to threaten and harass her husband and family for repayment of her loan with threats to kill upon her return to Sri Lanka.

6.  On 8 December 2015 the Applicant surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 18 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  Whilst released on recognizance pending the determination of her claim, the Applicant was arrested on 7 February 2017 for undertaking unauthorized employment and was subsequently convicted and sentenced by the court to two months’ imprisonment.

8.  By a Notice of Decision dated 10 October 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  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 from her creditor to the Applicant upon her return to Sri Lanka as low due to the absence or low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“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 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 Colombo where it would be difficult if not impossible for her creditor to locate her.

10.  On 17 October 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 8 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 1 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found significant inconsistencies and discrepancies between the Applicant’s evidence given to the Immigration Department and to the Board that the credibility of her claimed unpaid loan and threats from her creditor was found to be unreliable, which was further undermined by the fact that she did not raise her non- refoulement claim for protection until more than four years later in 2015, that in any event that it was a private monetary dispute between her and her creditor that state or police protection would be available to her, and concluded that it was not satisfied that she had anywell-founded fear of risk of harm from her creditor if refouled to Sri Lanka that her claim failed on all applicable grounds.

12.  On 6 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, andin her supporting affirmation of the same date she merely claimed that she was not satisfied with the Board’s decision as her life would still be in danger in her home country.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246;Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected her claim based on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 56 of its decision and with the benefit of hearing her in evidence and in answers to questions raised of her claim during the oral hearing of her appeal, and in the absence of any error of law or procedural unfairness in its decision being clearly and properly identified by the Applicant,I do not find any reasonably arguable basis to challenge the finding of the Board. 

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

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

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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

Form CALL-1