OTUNU PATTALE MULACHARIGE NILUKA K. J. v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2877/2018

[2020] HKCFI 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2877 of 2018

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

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 3 January 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at Torture Claims Appeal Board (“the Board”). They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 30 August 2019.

2.  Leave was given to the applicant to amend the name of the respondent.

The applicant

3.  The applicant is a national of Sri Lanka. She came to Hong Kong on 9 July 2012 as a domestic worker. She was permitted to stayed until 9 July 2014. Her employment contract terminated prematurely, but she did not depart. She was arrested by police on 4 June 2014 for theft and overstaying. On 27 June 2014, she was convicted of theft and was sentence to 4 weeks’ imprisonment. She lodged her non-refoulement claim on 9 July 2014.

4.  In support of her claim, she said that if refouled, she feared that she would be harmed, killed or sexually assaulted by Mervyn Silva and his men and she had to face the stigma of being single mother.

5.  In 2000, she assisted a politician to carry out promotional work. She was 16 at that time. She was raped by one of the bodyguards of the politician and gave birth to a child. The villagers there looked down upon her as the child was born out of illicit relationship. In 2002 another politician called Mervyn Silva asked her to work for him. She refused because she knew that Silva was only trying to take advantage of her. Silva sent 5 men to get her on a van. They drove her to a remote place, fainted her and believed to have raped her. She did not report to police and went home. 

6.  She married a man. Her husband was involved in a dispute with the drugs sellers at the location and he had to escape to somewhere else. She visited her mother-in-law and she came across Silva’s men. She moved to her grandfather’s house where she stayed. Then she discovered that Silva’s men were still looking for her. She went to Kuwait to work as a domestic helper for three years. She returned to Sri Lanka to her mother’s place. She found that Silva’s men were around. She decided to come to Hong Kong to work.

The Director’s Decisions

7.  The Director considered her application in relation to the following risks:

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

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

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     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”).

8.  By Notice of Decision dated 23 August 2016 and Notice of Further Decision dated 7 July 2017, collectively called (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions and she attended a hearing before the Adjudicator on 6 October 2017.

10.  By Decision dated 3 January 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decisions.

11.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     The reason for Silva’s ill-treatment on her was her refusal to work for him. The dispute was private in nature and there was nothing to indicate that it had any connection with the Sri Lankan government or its authorities [96].

b.     If she returned to Sri Lanka, she had no substantial grounds for believing that she would be subjected to ill treatment. Further, she had not shown that there existed a reasonable degree of likelihood that her fears would materialize. The future risk of harm was small [97].

c.     Internal relocation was an option open to her [158].

Application for leave to apply for judicial review

12.  The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, she said that she was still in fear that Silva and his men might find her and harm her because they were powerful.

14.  However, her application is late because the date of the Board’s Decision is 3 January 2018 and her application is dated 14 December 2018. I shall consider the merits of her case in order to determine extension of time should be granted to her for her application.

DISCUSSION

15.  The applicant appeared before me. She said that she did not have any interview with the immigration officer. After enquiry, I was satisfied that she might have mixed up the people she saw at the Kowloon Bay Centre of the Immigration Department. I decided that it would not be necessary to make further enquiry.

16.  She said that she was free to state her case before the Adjudicator at the Board hearing.

17.  The Board accepted her evidence on the facts of the case. However, the Board considered that the evidence did not establish that she would have real risks as she claimed. It rejected her appeal.

18.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”

19.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

20.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her extension of time for her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

21.  It is further directed that:

a.     If the applicantintendsto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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