MIHINDUKULASURIYA IRENE FERNANDO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 619/2018

[2020] HKCFI 1921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 619 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 the application for leave to apply for Judicial Review of the decisions of Director of Immigration dated 11 December 2014 and
24 January 2017 respectively and the decision of Torture Claims Appeal Board dated 31 August 2015 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 55-year-old national of Sri Lanka who arrived in Hong Kong on 3 March 2005 with permission to remain as a visitor up to 2 April 2005 when she did not depart and instead overstayed and was arrested by police on 12 July 2012 for overstaying and for possession of another person’s identity card for which she was convicted and sentenced to prison for 10 months.  Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Sri Lanka she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Chilaw, Puttalam District, North Western Province, Sri Lanka.  After leaving school she married her husband who was a fisherman, and raised a family of three children in her home district.  To help out with the family income, she had worked as a domestic helper in Kuwait and Saudi Arabia.

3.  In 2004 to help pay for her son’s wedding, the Applicant borrowed a loan from a local loan shark repayable within 5 months with monthly interest payments on the loan which she and the family initially managed to meet with the income from their jobs.

4.  However, after Sri Lanka was hit by the tsunami in December 2004, every member of her family lost their job and the Applicant was therefore unable to repay her loan.  As a result her creditor started to make hostile demands against her and her family over her failure to repay the loan, and later when he escalated his demand with death threats against her, the Applicant decided that it was no longer safe to remain in Sri Lanka, and so on 3 March 2005 she departed for Hong Kong where she overstayed until her subsequent arrest 7 years later in July 2012 when she then raised her torture claim later taken as a non-refoulement claim for protection, for which she completed a Supplementary Claim Form on 9 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 11 December 2014 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Sri Lanka as low due to the absence of or low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 20 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Sri Lanka away from her home district in large cities such as Colombo where it would be difficult if not impossible for her creditor to locate her.

7.  On 24 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 21 July 2015 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 31 August 2015 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found significant inconsistencies and contradictions in the Applicant’s evidence as to her claim that it highly doubted her credibility and attached little weight to her evidence regarding events which she claimed to have occurred in Sri Lanka that it was not persuaded that she would face any risk of ill-treatment at the hands of her creditor if she is refouled to Sri Lanka, and that in any event with state/police protection available if needed that it concluded that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 6 January 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 24 January 2017 rejected the Applicant’s claim under BOR 2 risk upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR being violated upon her return to Sri Lanka.

10.  The Applicant did not lodge any appeal to the Board against that Further Decision of the Director, but on 11 April 2018 she filed her Form 86 for leave to apply for judicial review of all the decisions of the Director and the Board, and no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that she was not satisfied with their decisions which were unreasonable in that they depended only on web reports and the Sri Lankan authority reports without considering source relevant to her torture claim but without providing any particulars or elaborations why they were so or putting forward any other proper grounds for her intended challenge.  Nor did she request any oral hearing for her application.

11.  She was by then also late with her application in respect of any of those decisions, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the three-months period for her to file her Form 86 regarding the latest decision, i.e. the Director’s Further Decision, fell on 24 April 2017, the Applicant was therefore almost one year late with her application, never mind those much earlier decisions of the Director or the Board, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of one year or more must be considered as very substantial or excessive, for which she did not provide any explanation, and as the records confirm that all the relevant decisions were sent to her last reported address which had remained the same at all material times as stated in her Form 86, and that none of which have never been returned through undelivered mail, I am unable to see any good or valid reason for her such serious delay with her application.      

14.  As for the merit of her intended application, as noted above the Applicant failed to put forward any proper ground for her challenge, be it against the earlier decisions of the Director or the Board, or against the Further Decision of the Director regarding her BOR 2 risk which was simply not engaged on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim, as correctly founded by the Director.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any basis or merit at all in her intended application. 

15.  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. 

16.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford her 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 Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave 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