RAMANAYAKA KANKANAMALAGE CHITRANGANI RAMANAYAKA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 876/2019

[2023] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 876 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Sri Lanka. She entered Hong Kong on 6 December 2007 and was permitted to work as a foreign domestic helper until 6 December 2009. However, she did not depart and had overstayed after the completion of the employment contract. On 1 December 2015, she surrendered to the Immigration Department for overstaying. On 5 May 2016, she lodged a non-refoulement claim. However, she absconded and did not proceed with the claim further. On 18 October 2017, she wrote to apply for a reopen of her non-refoulement claim. On 5 January 2018, the evaluation of her non-refoulement claim was resumed. Her claim was made on the basis that, if refouled, she would be harmed or killed by a group of underground gangsters who extorted money from her and her husband.

5.  In short, the applicant claimed that she and her husband had been harassed by a group of underground gangsters who belonged to a political group. From mid-2006 to January 2007, they had been visiting her husband’s shop, threatening and assaulting her and her husband for money in six instances. While sometimes her husband was able to fulfil the demand, most of the time they were unable to pay. Thereafter, the applicant and her husband were kidnapped by the gangsters. The gangsters tortured them, raped the applicant and killed her husband. Despite she was locked in the house by the gangsters, the applicant was able to escape later. She was so depressed and physically unwell whenever she recalled these incidents. Eventually, she fled to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 15 May 2018 by the Director (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 torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the alleged incidents she encountered happened some eleven years ago and the claimed risk of harm should have dissipated [14]-[15]; (ii) her claim that the gangsters belonged to a political group was a mere speculation [16]; (iii) state protection would be available to her [17]-[20]; and (iv) internal relocation was a viable option [21]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 16 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [6].

9.  Having considered the evidence, the Board found that it could not attach any credence to the applicant’s claim [25]. In particular, the Board noted that the applicant had waited for ten years before lodging her non-refoulement claim, an act of which undermined her credibility [26]-[28]. Meanwhile, it observed that the applicant’s oral evidence about the material aspects of her claim, namely, the descriptions of the gangsters and the alleged assaults, was vague and lacked details [29]-[30]. It was also unreasonable that the applicant failed to make any enquires with the neighbors to see if her shop was the only one targeted by the gangsters [31]. Her evidence on the chronology of events, her husband’s death and the attack against her was equally vague [32]-[33]. Despite giving the applicant the benefit of doubt since the events occurred a long time ago, the Board considered that, if something as traumatized as she alleged happened, it would be improbable to fail to recall any details [35].

10.  For the aforesaid findings, the Board found that the applicant’s claim lacked credibility and dismissed her claim and appeal.

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

11.  The applicant has filed Form 86 dated 1 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said that she was unable to obtain the documents to support her case, but that what she had told the Board is true.

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 its 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 Decisions 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 grounds as set out in paragraph 12 above do not assist her application. The Board, for the reasons given, refused to accept her evidence in support of her claim.

17.  There is no valid ground to challenge the Board’s Decision.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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