BATHAGE WATHTHE GEDARA LAXMI PIYARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2030/2024

[2025] HKCFI 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2030 OF 2024

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 May 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a hearing. I shall deal with her application on the papers.

The applicant

3.  The applicant, aged 49, is a national of Sri Lanka. She came to Hong Kong as a domestic helper on 30 April 2021. Her employment contract terminated on 6 July 2021 and she overstayed since 21 July 2021. She lodged her non-refoulement claim by way of written signification dated 27 July 2022 on the basis that, if refouled, she would be harmed or killed by her husband because she had mortgaged his property in Sir Lanka for her expenses for coming to Hong Kong as a domestic helper.

4.  According to the applicant, she was subjected to domestic violence by her husband shortly after marriage in 1993. On one occasion, he had injured her by cutting her eyes with broken pieces of glass and she had to be admitted to hospital for 11 days. She had reported to police, but was advised not to fight with her husband by the police. She and her husband were separated in 2015. Her husband left the house and she was unable to have contact with him. He had left a house as residence for the children. She mortgaged the house for 450,000 rupees for the expenses for her to come to Hong Kong to work as a domestic helper. Her husband was furious when he had knowledge of this and threatened to kill her. She considered that police could not help her and internal relocation was not viable as her husband would be able to locate her.

5.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 October 2022 (“the Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the applicable risks for the reasons that (i) there is no evidence that her claimed risk of harm from her husband is real or imminent [14]–[17]; (ii) state protection will be available to her [18]-[22]; and internal relocation is viable [23]-[24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 20 April 2023, the Board conducted a hearing. The applicant has given oral evidence before the Board.

9.  The Board, having considered the evidence, found:

“30. The Appellant’s evidence at the hearing about her claims was evasive and inconsistent. Her claims about the present ownership of the house changed several times, both prior to and during the hearing. … She has given different evidence as to how she was able to mortgage the house, …

37. For the reasons explained above, I regard the Appellant’s core claims as lacking in credibility. …

39. I find therefore that the Appellant has not established that there are ‘substantial grounds’ which support the conclusion that she will face a real risk of ill-treatment as claimed if she returned to Sri Lanka. …”

10.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 6 November 2024 for leave to apply for judicial review of the Board’s Decision.

12.  In the affirmation in support of her application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

17.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.