JAYAMANNA MOHOTTIGE DONA MADUSHANI UDESHIKA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1402/2021

[2025] HKCFI 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1402 OF 2021

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 / the Applicant being absent in open court;

The 1^st, 2^nd and 3^rd Applicants’ application for leave to apply for

judicial review be dismissed.

Observations for the Applicants:

1.  The Applicants are a mother and her 2 daughters all nationals of Sri Lanka who last arrived in Hong Kong on 18 December 2016 as visitors and with permission to remain as such up to 25 December 2016 when they did not depart and instead overstayed, and on 28 December 2016 they surrendered to the Immigration Department when the 1^st Applicant raised a non-refoulement claim for protection for herself and her daughters on the basis that if they returned to Sri Lanka they would be harmed or killed by the political adversaries of her husband. They were subsequently released on recognizance pending the determination of their claims.

2.  The 1^st Applicant (“A1”) was born and raised in Colombo, Sri Lanka. After leaving school she worked in a factory and then as a domestic helper in her home district, and in 2006 she started to come to Hong Kong to work as a foreign domestic helper.

3.  In July 2007 she returned to Sri Lanka as arranged by her family to marry her husband who was then an officer of the Sri Lankan Army, and that their marriage was registered on 4 July 2007 in Colombo, and later in the same year A1 returned to Hong Kong to resume her employment as a foreign domestic helper as before.

4.  On 2 July 2008 she gave birth to their elder daughter, the 2^nd Applicant (“A2”) in Hong Kong, and was allowed by her employer to keep her job while raising her daughter in Hong Kong until 3 months later in October 2008 when she was told that her husband was injured in a military action that she returned to Sri Lanka with A2, but when she learnt that her husband had been taken care of by the military and was recovering well in the military hospital, she then returned to Hong Kong with A2 to continue with her employment.

5.  In 2011 her husband bought a piece of land in Katana for their family after he was promoted to be a member of the security staff of a Member of Parliament (“MP”) Duminda, and so A1 returned with A2 to Sri Lanka to live with her husband in their own house in Katana where she later on 12 November 2013 gave birth to their second daughter, the 3^rd Applicant (“A3”).

6.  Earlier in October 2011 Duminda was suspected to have arranged for the murder of a rival MP Bharatha, but later in 2015 when Bharatha’s daughter Hirunika was elected to be a MP, she took actions to take revenge against Duminda by launching investigation and prosecution against him and his subordinates including members of Duminda’s security staff, and after some unknown men had come to their house looking for her husband, A1 suspected that they were sent by Hirunika, and when those men also made threats against her, A1 brought her daughters to take shelter in her mother’s home in Maharagama.

7.  However, one day in January 2016 when some men tried but failed to kidnap A2 while on her way to school, A1 suspected that those men were sent by Hirunika against her family, she therefore decided that it was no longer safe to remain in Sri Lanka, and after hiding with her daughters in various places, A1 departed Sri Lanka with her daughters on 17 December 2016 for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which A1 completed a Non-refoulement Claim Form (“NCF”) on 18 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 27 December 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found material inconsistencies discrepancies and implausibility in A1’s evidence that caused serious doubts on her claim of fear of harm from Hirunika and her people upon their return to Sri Lanka as wholly unreliable and incredible, that in any event even if such claimed risk from Hirunika were real that she was only after Duminda and his people which might include A1’s husband but certainly no reliable evidence of any adverse interest in her or her daughters, that in the absence of any evidence of any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also 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 A1 as an able-bodied adult with working experience to move with her daughters to other areas of the country away from her home district in large cities such as Colombo where it would be difficult if not impossible for Hirunika or her people to locate them.

10.  On 10 January 2018 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 4 oral hearings on 2 April 2019, 10 June 2019, 20 August 2019 and 5 December 2019 with their lawyer from DLS before the Board during which A1 gave evidence for all of them and answered questions raised of their claims by the Adjudicator for the Board and with submissions made on their behalves by their lawyer. On 25 August 2021 their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim that her husband was ever in the Sri Lankan army or the security team of Duminda or that there were any reliable evidence of any adverse interest in A1 or her daughters or that they would face any risk of harm from Hirunika or her people at all upon their return to Sri Lanka that it concluded that A1 had fabricated her account of events as wholly unreliable and incredible that their claims for non-refoulement protection failed on all applicable grounds.

12.  On 6 October 2021 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for their intended challenge which can be summarized as follows:

(1)  That there were no proper grounds for the Board to find the evidence of the Applicants vague or amounted to nothing but hearsays or were untruthful;

(2)  That the Board failed to properly assess the Applicants’ claims or to have any real understanding of the background of their case;

(3)  That the Board failed to have a proper understanding of the political situations in Sri Lanka in its assessment of the Applicants’ claims;

(4)  That the Board wrongly assess that reasonable internal relocation alternatives would be available to the Applicants to return to Sri Lanka;

(5)  That the Board failed to accept on a fair appraisal that the visit of the Applicants’ home by thugs were connected to their claims;

(6)  That the Board failed to take into account of the fact that the Applicants did in fact make a report or complaint to the police of the threats against them in the assessment of their claims;

(7)  That the Board wrongly disbelieved that A1’s husband was an army officer or a member of the security team for the MP in its assessment of the credibility of the Applicants’ claims;

(8)  That the Board failed to apply the principles laid down for determining cases where BOR 2, BOR 3 and Persecution risks are alleged in a fair and just manner.

13.  These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to properly apply the principles in the assessment and determination of their claims. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

14.  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.

15.  In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of their claims as well as arguments and submissions made on behalf of all the Applicants by their lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants or of any underlying child-specific circumstances of A2 or A3 who were both legally represented in their appeals before the Board, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Sri Lanka, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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 Applicants’ claim.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.

19.  As the Court has recently been informed by the Immigration Department that the Applicants have since been removed from Hong Kong, accordingly I direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with a sealed order to the Applicants in Sri Lanka.

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