KANDIAH MERCY MATILDA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1011/2018

[2021] HKCFI 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1011 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 56-year-old national of Sri Lanka who arrived in Hong Kong on 22 July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contact on 22 July 2015 or within 14 days of its early termination, but it was prematurely terminated on 17 August 2013, she did not depart and instead overstayed in Hong Kong until 4 November 2013 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 some military deserters for reporting them to the authorities and/or by some local gangsters for witnessing their murder of her brother and/or by her husband over some property dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Negombo, Sri Lanka. After leaving school she worked in a garment factory, married her husband and raised a family with one son.

3.  In 1991 she separated with her husband and then went to work in a garment factory in Dubai and later in Cyprus before returning to Sri Lanka in 2002 when she resumed cohabitation with her husband in Minuwangoda until 2005 when her husband left her for another woman.

4.  In 2012 some military deserters hid their weapons in the garden of her house, and after the Applicant reported the matter to the authorities, those military deserters threatened to kill her in revenge, and so she left Minuwangoda to move back to Negombo to live with her brother.

5.  One day in January 2013 while she was out with her brother, some local gangsters approached them and shot her brother to death, and after she reported the matter to the local police, she received death threats from those gangsters, and as she was fearful for her life, she therefore moved back to Minuwangoda and made arrangements to come to Hong Kong to work as a foreign domestic helper, which she eventually did on 21 July 2013, during which she was contacted by her husband in Sri Lanka over the division of their property, and when they were unable to reach agreement, her husband threatened to kill her if she returned to Sri Lanka, and so after the early termination of her employment contract in August 2013, she was afraid to return to Sri Lanka, and instead she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 16 August 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her alleged enemies upon her return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from them, that given the nature of her alleged disputes with them that it is not accepted that they had any real intention to harm or kill her as evidenced by the fact that nothing had happened to her up to the time when she departed Sri Lanka, that in any event it is doubtful that they would still have any adverse interest in her after all these years, that in the absence of 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 perceived enemies to locate her.

8.  By a Notice of Further Decision dated 18 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 29 August 2016, and for which she attended 2 oral hearings on 10 January 2018 and 17 April 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 7 May 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found inconsistencies and exaggerations in the Applicant’s evidence as to her alleged threats from her enemies that it doubted the credibility of her claims, that in any event her claims are based on assertions relating to personal or local issues without any official involvement that state/police protection would be available to her upon her return to Sri Lanka as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

11.  On 4 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 stated that she needs to stay in Hong Kong, and at the hearing of her application she only repeated her claim that her life would still be in danger in her home country but without putting forward any proper ground for her intended challenge. As such 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 for her intended challenge.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risks of harm in her claims are localized ones 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.     

14.  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.

15.  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