WIJESIRI GUNAWARDANA NANDANIE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1053/2018

[2021] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1053 of 2018

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 60-year-old national of Sri Lanka who arrived in Hong Kong on 4 February 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 February 2018 or within 14 days of its early termination, but when it was prematurely terminated on 10 May 2016, she did not depart and instead overstayed in Hong Kong, and on 8 June 2016 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 and/or 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 Akmeemana Village, Galle District, Sri Lanka. In 1986 she married her husband and moved to live with him in Matale, Central Province, but soon after marriage her husband became abusive and violent towards her that she in 2000 in order to avoid such further abuses went to work in Cyprus as a domestic helper until 2013 when she returned to Sri Lanka, but when her husband started to demand money from her and was again abusive towards her, the Applicant therefore took shelter in her sister’s place in Akmeemana.

3.  However, in January 2016 she was located by her husband who proceeded to beat and raped her, the Applicant felt it was no longer safe to remain in Sri Lanka, and so she borrowed a loan from a local loan shark for her application to work as a foreign domestic helper in Hong Kong, and in February 2016 she arrived to start her employment, but when her employment contract was prematurely terminated in May 2016, she did not depart for Sri Lanka as she was fearful of being harmed or killed by her husband or her creditor, and instead she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 2 March 2017 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband or creditor due to serious doubts over the credibility of her claims, that in any event her problems with her husband or her creditor if true were private domestic or monetary disputes 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 of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from her home district in large cities such as Colombo where it would be difficult if not impossible for her husband or her creditor to locate her.

6.  On 16 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 29 March 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 5 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found significant elements of the Applicant’s evidence as to her claim vague, lacking in details and inconsistent that it concluded that her claim of fear of harm from her husband or her creditor as not credible, and that in any event that her alleged problems with her husband or creditor if true were private domestic or monetary disputes in the absence of any official involvement that state/police protection would be available to her upon her return to Sri Lanka that her claim for non-refoulement protection failed on all applicable grounds.   

8.  On 8 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely repeated her claim that she would be killed by her husband if returned to Sri Lanka but without putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

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

10.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 132 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or 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.  

11.  Furthermore, the fact is 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.  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.

13.  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