AMARASINGHA ARACHCHIGE ANUSHA PRASANGI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2638/2019

[2025] HKCFI 4553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2638 of 2019

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 oral submissions by the Applicant in open court;

1.   Leave to amend the Form 86 be granted; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 September 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Petition Teams (Security Bureau) dated 3 September 2019.  She named the Petition Teams (Security Bureau) as the proposed respondent and the Board as the putative interested party.  In her supporting affidavit, she annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 September 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 January 2019 (the “2019 Notice”), refusing her application for non‑refoulement protection.  It is obvious that her intention is to apply for judicial review of the Board’s Decision dated 3 September 2019.  In the circumstances, the Board and the Director should respectively be the proposed respondent and interested party.  Hence, out of its motion, the Court amended her Form 86 as above to give effect to her intention. 

The Applicant’s claim

2.  The Applicant is a Sri Lankan national, now aged 43.  She last arrived in Hong Kong on 23 April 2008 to work as a domestic helper.  Her employment was prematurely terminated on 30 June 2008. She did not leave Hong Kong and overstayed since 15 July 2008.  She surrendered to the Immigration Department on 27 October 2015 and made a non-refoulement claim by way of written representations dated 1 April 2016 and 7 September 2018.  Her personal background, the factual background leading to the present application, the basis of her claim and the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, she claims that if returned to Sri Lanka, she will be harmed or killed by a loan shark for being unable to repay a loan of one million Sri Lanka rupees borrowed from him to pay an agent for arranging her employment in Hong Kong.  At the hearing before the Board, she also raised claims of fear of domestic violence from her husband and generalized violence in Sri Lanka.

The finding of the Board

3.  The Applicant testified before the Board.  The Board had concerns about her credibility.  The loan agreement produced by the Applicant is of the nature of a promissory note signed by her in favour of the loan shark.  The interest rate is listed as 120% per annum.  When the Board queried the rate as exorbitant, she sought to explain that the rate should read “20%” and not “120%” and that what appeared like a numeral “1” before the figure “20” was perhaps a symbol or an oblique (/).  The Board rejected that contention as being at odds with both the written evidence on the page where the figure “120” appeared twice and the context in which it appears. 

4.  The Applicant claimed that the loan shark had threatened to kill her and to burn down her house.  Because of the risk, she sent her daughter far away to live and study in a convent.  After she had left Sri Lanka for 11 years, she claimed the loan shark still continue to threaten her mother and made grave predictions about what will happen to her if she returns to Sri Lanka.  Despite that, no harm has ever befallen on the Applicant’s mother and her daughter.  The loan shark had made no attempt to compel her to sell or hand over her property.  These facts cast doubt on the genuineness or at least the seriousness of these claimed threats and whether the loan shark is as ruthless and powerful as she alleged.

5.  At the hearing, the Applicant raised for the first time the issue of domestic violence by her husband claiming that part of the reason why she wanted to go to work abroad was to avoid her husband.  Her explanation for not raising this claim earlier is that she had never been asked.  Putting that unconvincing explanation aside, her claim is also problematic as she listed her husband as her next of kin on her passport which was issued after she claims to have left him.  She was unable to explain the inconsistency other than blaming it on her travel agent.     

6.  The Board was not satisfied that the Applicant had given an entirely truthful account and found on the contrary that she had fabricated or exaggerated substantial aspects of her claims.  It accepted that the Applicant may have borrowed money from the loan shark in order to meet the costs of her journey to Hong Kong to find work and was unable to repay.  It did not accept the loan shark or his associates had been making ongoing threats to the Applicant or her mother or that they actually intended to harm her if she returns to Sri Lanka.  It considered her claim that she would be sold by the loan shark to recoup the debt speculative and did not accept that there is any appreciable risk of this happening to the Applicant.

7.  The Board considered her first time claim about threat from her estranged husband confusing and contradictory.  Even accepting that she had decided to leave her husband in 2007, she was not harmed by him when she was living at her mother’s place up until her departure from Sri Lanka the following year and that the worst her husband did during this period was to occasionally come to the house and drunkenly shout at her and her mother.  The Board was not satisfied that the Applicant’s estranged husband posed any appreciable risk to her if she returns to Sri Lanka.

8.  As for her claim of risk of generalized violence, the Board acknowledged that there is some ongoing insecurity in the country. However, even taking into account the fact that the Applicant is a Christian, the Board did not accept that there is more than a remote possibility of her encountering any violence of this nature in the event that she returns to Sri Lanka. 

9.  Applying the law applicable to non-refoulement protection under the Unified Screening Mechanism (“USM”) to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.

Grounds for judicial review

10.  In her Form 86, the Applicant did not advance any grounds for judicial review.  She merely stated that she still had problem in her country, and she need time to remain in Hong Kong.  In her supporting affidavit, she further stated that her life would be in danger in her home country because she could not repay the loan owing to the loan shark.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Sri Lanka.  This is impermissible in a judicial review.

11.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

12.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense, inherent probability and the COI.  The Board was not satisfied that the Applicant had given an entirely truthful account of her claim and found on the contrary that she had fabricated or exaggerated substantial aspects of her claim.  She had no factual basis to support her feared harm or risk of harm.   The Board gave full reasons for its finding.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

13.  For the above reasons, the Form 86 is amended on the Court’s own motion, but the leave application as amended is refused.

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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002638_2019_files/the_Board's_Decision.pdf