DAYARATHNAGE SAMA UDAYANGANI DAYARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1950/2023

[2025] HKCFI 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1950 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Dayarathnage Sama Udayangani Dayarathna (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 August 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 13 July 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Sri Lankan. She was born on 29 October 1989 in Horowpothana, Sri Lanka. She received 11 years of education and had 15 years of work experience in Sri Lanka, Saudi Arabia, Kuwait and Hong Kong. She worked as a farmer, a foreign domestic helper and a shop owner.

The Claim

3.  The Applicant claimed that on 10 March 2018, she borrowed 500,000 Sri Lankan rupees (“LKR”) (“Loan”) from a well-known local moneylender (“Creditor”). The monthly interest rate was 20%. They did not sign any loan agreement. According to the Applicant, there was a deadline for paying back the Loan, which was the reason for her coming to Hong Kong to work.

4.  The Applicant opened a book shop (“Shop”) in Horowpothana under her sister’s name in around 21 March 2018. She purchased stationeries and books from a wholesaler and resold them at the Shop. She managed to pay back LKR 200,000 of the Loan.

5.  In March 2020, the pandemic caused schools to shut in Sri Lanka, which dealt a major blow to the Shop. The Applicant could not make any money and stopped paying back the Creditor.

6.  Between March and July 2020, the Creditor (accompanied by one or two associates) went to the Shop about twice a week to collect the Loan. The Applicant pleaded with them and explained her situation. She also made small payments towards the Loan (§7.23 DOI Decision). She offered to hand over the Shop as part payment but the Creditor refused her proposal.

7.  The Applicant gave up the Shop in around July 2020. The Creditor and his associates came to her home from time to time to ask for repayment. The Creditor did not explicitly make threats towards her, but she was still afraid of him. This was because the Creditor was notorious in the local village and had ties with all kinds of vices. The Applicant claimed that everyone in the village feared the Creditor and she was afraid that she would be sold into prostitution if she failed to pay back the Loan.

8.  In around October 2020, the Applicant told the Creditor that she had an opportunity to work in Hong Kong and reassured him that she would pay back the Loan. The Creditor then reduced the frequency of his visit to her home to about once a week.

9.  The Applicant claimed that she would be ill-treated or abused by the Creditor if she were returned to Sri Lanka because she did not have the money to pay back the Creditor. Her mother informed her that the Creditor was getting impatient with her and repeatedly asked her family to hand her over. The Applicant believed the Creditor intended to sell her into prostitution. In one phone call with her mother, her mother told her to stay in Hong Kong while her mother sorted out the Loan (§7.30 DOI Decision).

10.  The Applicant confirmed that neither she nor her family were harmed by the Creditor (§§7.23 and 7.30 DOI Decision).

Procedural history

11.  The Applicant arrived in Hong Kong on 14 December 2020. Her employment was pre-maturely terminated on 18 February 2021. She did not leave Hong Kong within the prescribed period, ie on or before 4 March 2021 and overstayed in Hong Kong.

12.  She surrendered to the Immigration Department on 13 January 2022. By a written representation of 7 February 2022, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 31 October 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents.

16.  By another affirmation filed on 19 July 2024, the Applicant applied to withdraw the judicial review application, stating that all her problems had been “finished” and that she wanted to return to Sri Lanka as soon as possible to take care of her sick husband (“Withdrawal Application”).

17.  The Director has subsequently informed the court that the Applicant had been removed from Hong Kong in October 2024. When the Applicant filed the Form 86, she expressly stated that she did not request an oral hearing for her application. As such, I decided to proceed to deal with this case according to the papers already placed before the court.

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditor intended to harm the Applicant.

19.  The Director further found that the conduct of the Applicant after her arrival in Hong Kong to be inconsistent with a person genuinely in fear of an imminent threat. This was because she did not seek protection immediately after coming to Hong Kong but had instead waited 11 months after she became an overstayer to make the Claim.

20.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant in Sri Lanka, if necessary.

21.  The Director further found that internal relocation would be viable. If the Applicant moved to Kandy or Trincomalee, it would be difficult for the Creditor to locate her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

22.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

23.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, the Board formed the view that she gave coherent evidence about the reason for seeking protection. The Board was prepared to proceed on the basis that the facts she relied on were true.

24.  The Applicant’s own evidence to the Board was that her family had committed to a repayment schedule and the Loan was expected to be paid off in a few months. The Applicant claimed that she only needed a few more months in Hong Kong.

25.  The Board found that if the Applicant’s family had committed to paying back the Loan, there would be no reason for the Creditor to harm her or sexually abuse her (which was what she feared would happen upon her return). The Board also had regard to the fact that after the Applicant defaulted on the Loan, she continued to live in close proximity to the Creditor and nothing bad happened to her during that time.

26.  The Applicant told the Board that she lived in a rural farming village and there was no police presence there. She claimed that it would be difficult for her to obtain help if the Creditor suddenly decided to harm her. The Board found that even if this assertion were given the benefit of the doubt, the Applicant could still avoid the risk of harm by the Creditor through internal relocation within Sri Lanka.

27.  The Board found in §32 of the Board’s Decision that there was “absolutely no evidence whatsoever” that the Creditor had influence outside the local village or that he had the necessary influence to locate the Applicant nationwide. With her work experience and language skills, the Applicant could safely relocate to other parts of the country, such as Colombo, and it would not be unduly harsh to expect her to do so.

28.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

29.  In a judicial review, the court does not step into the shoes of the decision makers.

30.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] 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 the 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 Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

31.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

32.  In a statement annexed to the Form 86, the Applicant advanced the following grounds for her intended judicial review:

(1)  the Board’s assessment on the risk of harm faced by her was unrealistic given her rural environment background where it might be difficult to seek assistance or protection of the law and the influence of the Creditor in the rural community was great;

(2)  her family could only repay the Loan for her when there was good harvest and it would be a long process. She could not return to Sri Lanka until her family had paid her debt;

(3)  the Creditor might harass her sexually and she would be an outcast in a small rural community if she became susceptible to the Creditor;

(4)  prospects of relocation for her were remote as there was no guarantee that she would find employment in Colombo with sufficient income for her maintenance and repayment of the Loan; and

(5)  the Creditor would still chase her for repayment of the Loan notwithstanding that they had not signed loan agreement.

33.  In the Supporting Affirmation, the Applicant only stated that: “I am disagree with the decision of Torture Claim Appeal Board on 10-Aug-2023.” She then produced the Board’s Decision as exhibit to the Supporting Affirmation but no other supporting documents.

34.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

35.  In disputing the Board's assessment on evidence, risk of harm, state protection and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. The Applicant did not point out any in the Form 86 or the Supporting Affirmation and I find none in this case.

36.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

37.  The Board found that the Creditor had agreed with the Applicant’s family for them to pay off the Loan gradually when they generated sufficient income from their farming and crops to do so and the repayments were ongoing. As such, the Board found it impossible to conclude that there was any serious risk to the Applicant whatsoever. For reasons set out in §§31-39 of the Board’s Decision, the Board found that the Applicant could safely and reasonably relocate to a different part of Sri Lanka such as Colombo. Reasonable protection was also available to her.

38.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

39.  The Applicant subsequently filed the Withdrawal Application stating that all her problems in her country had been “finished”. Her husband was very sick and she wanted to go back to her home country. She requested to withdraw her intended judicial review application.

40.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

41.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

42.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

43.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

44.  The court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of her address for service. The court noted that the Applicant’s address stated in the Withdrawal Application was different from her address stated in the Form 86 but the address stated in the Withdrawal Application was incomplete in that the street number was missing. In such case, the court will send a copy of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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