WARNAKULASURIYA RENUKA DAMA YAN THI TISERA COLOMBAGE FERNANDO DINESH ARAVINDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 94/2021

[2025] HKCFI 509

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 94 of 2021

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 the 1st and 2nd Applicant being absent in open court;

1.  The 2^nd Applicant’s application to withdraw the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 27 January 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 24 December 2020 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration in his notice of decision dated 29 March 2018 (the “Notice”) refusing their application for non-refoulement protection.

2.  The 1^st and 2^nd Applicants are nationals of Sri Lanka, now aged 56 and 34 respectively. The 1^st Applicant is the mother of the 2^nd Applicant. She arrived in Hong Kong on 14 July 2005 and overstayed since 14 August 2005. She was arrested for theft on 2 August 2006. After serving her sentence, she was transferred to immigration detention on 26 August 2006. After a removal order was issued against her on 23 September 2006, she raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 16 November 2006.

3.  The 2^nd Applicant was arrested by the police on 17 May 2013 as an illegal immigrant. He claimed to have departed Sri Lanka on 3 April 2013 for mainland China and then sneaked into Hong Kong on 10 May 2013. He raised a torture claim on 20 May 2013.

4.  In due course, their non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claim was dismissed by the Director’s Notice. Their appeal against the Notice was dismissed by the Board’s Decision. On 27 January 2021, they applied for leave to apply for judicial review of the Board’s Decision.

5.  When their leave application came to be processed by this Court, the 2^nd Applicant had applied by affidavit on 23 December 2024 to withdraw his leave application on the ground that he is “seeking alternative pathways to [his] displacement.” Hence, he no longer wishes to pursue his non-refoulement claim in Hong Kong. On the basis of his affidavit, the Court was not satisfied that his application to withdraw is the result of an informed choice with full knowledge or understanding of the consequences of the withdrawal. Thus, the Court set down the leave application for hearing on 20 January 2025 for both Applicants with a view (i) to dispose of the 1^st Applicant’s leave application; and (ii) to understand the full reasons for the 2^nd Applicant’s withdrawal, explain to him the consequences of the withdrawal so as to ensure that he could make an informed choice, and to appropriately dispose of his leave application in accordance with his ultimate choice. However, on 8 January 2025, this Court was informed by the Immigration Department that the 1^st Applicant had been removed on 17 December 2024.

The 1^st Applicant’s case

6.  The background leading to the 1^st Applicant’s claim is as follower. The 1^st Applicant’s husband was a supporter of the United National Party (“UNP”) and had done a lot of work for the UNP during the last election. UNP was defeated in the election and the People’s Alliance Party (“PAP”) became the ruling party. Since then, the PAP used to ransack her home, damage the property and broke household goods. But the 1^st Applicant admitted she did not know who did the damage as the incident occurred while she and her family were not at home. Her husband always returned home with bruises and cuts on his body, but he never told her how he received his injuries.

7.  One night, the 1^st Applicant’s husband returned home with injuries and told her that he had been beaten by PAP people who threatened to kill him and his whole family. He said he was afraid and took the family to hide in the woods. They hid for two nights until the 1^st Applicant and her two children could not stand that any longer. They fled to the home of the 1^st Applicant’s brother-in-law, leaving her husband in the woods. On 2 September 2001, after having stayed for one day in her brother-in-law’s home, she was informed by him that her husband died of a snake bite. The death certificate showed that the cause of death was “Cardio Vascular Accident probably following snake bit. Accidental death.” The 1^st Applicant could not accept her husband died of an accident and insisted that he was murdered by the PAP and the death certificate was obtained by bribe. She said that during the funeral ceremony for her husband, PAP members lit fire crackers on the road to express their pleasure of his death.

8.  On the night of 22 September 2001, while she was staying in her mother’s house, people from the PAP stoned the roof of her mother’s house. She was concerned about the safety of her children. Following that incident, with the help of a priest from her church, her son was placed in a boarding school in Puttalam and her daughter was placed in a convent in Maharagama.

9.  On 21 December 2001 at around 9:00 pm, while walking home from work, a van stopped beside her. Then, a man got out of the van and chloroformed her. She fainted. When she regained consciousness, she found herself in a wooded area. She had blood all over her private parts and had cigarette burns on ten places on her body. She said she had been raped and abused by four men from the PAP.

10.  She then worked as a baby sitter in Katunayake on 4 February 2002. One day, she saw a van stopping outside her employer’s house and tooted the horn for about ten minutes. She felt that was a signal of threat by the PAP.

11.  The 1^st Applicant then worked as a cleaner in a hospital from 30 August 2003 until 13 July 2005. One day, as she was going back to the boarding house with five friends after work, a group of PAP members attempted to abduct her. She was only rescued by her friends.

12.  There are some other less significant events relied on by the 1^st Applicant, including the abduction of her own brother in 2008, seeing the silhouette of a male in the darkness of the living room one night, and the attempted abduction of her son in 2010 after the 1^st Applicant had left for Hong Kong.

13.  The 1^st Applicant never reported the incidents to the police because she believed the police would informed the PAP of her complaint and she would have to face further problems at the hands of the PAP members. Eventually, she fled Sri Lanka to come to Hong Kong. While in Hong Kong, she was told by her sister that PAP members had been to the homes her family members looking for her.

14.  In gist, the 1^st Applicant claims that if returned to Sri Lanka she will be at risk of harm and death at the hands of members of the PAP, now called the United People’s Freedom Alliance (“UPFA”), as a revenge for her husband’s support for the UNP during the election about 25 years ago.

The Board’s finding

15.  The Board accepted that the 1^st Applicant’s husband died of a snake bite, but rejected her evidence that the death certificate was procured by bribe as fanciful and unreasonable. It rejected her evidence that PAP people lit firecrackers to celebrate her husband’s death and stoned her mother’s house as based solely on her own speculation since she conceded in evidence that she had no basis to suggest that the people were PAP members.

16.  The medical certificate presented by the 1^st Applicant is dated 13 July 2012, but purports to certificate a medical examination of the 1^st Applicant on 22 December 2001, more than ten and half years ago. The Board considered the report brief, vague and generalised. More importantly, it found the language used by the writer is not of the standard which might be expected of an official medical report written by a genuine medical practitioner. It certified that “… [the 1^st Applicant] complained that about 04 males her (sic) forcefully. Under the circumstances I subjected her to a full medical examination and came to the conclusion that she had been sexually molested by several persons and as a result she was under shock and physically hurt.” The Board was not satisfied it is an authentic document and gave it no weight.

17.  The Board noted the following account of the rape incident described by the 1^st Applicant in the psychiatric report dated 3 December 2013: “[the 1^st Applicant] was hospitalized for around 2 to 3 weeks. Her sister did not tell her what the doctor said while she was hospitalized and she learnt 8 to 9 months after her hospitalization that she was being raped when she was unconscious.” The Board accepted the psychiatrist’s opinion that the 1^st Applicant is suffering from post-traumatic stress disorder and depression of moderate severity. It accepted that the 1^st Applicant subjectively believes she had been subjected to some form of sexual assault at the hands of unknown attackers while she was unconscious and suffered post-traumatic stress as a result. However, it found her account of the incident inconsistent with all her evidence relating to that incident. The Board found the inconsistency damaged the 1^st Applicant’s credibility and suggested that she was prepared to exaggerate and indulge in pure speculation in the hope of advancing her claim.

18.  The Board found the 1^st Applicant’s assertion that the PAP people were responsible for every negative event she claims to have experienced before she left Sri Lanka as based solely on her presumption because she had no other enemies. The Board rejected that as her subjective belief and was not well-founded. It was not persuaded on the balance of probability that the 1^st Applicant had been sexually assaulted as she claimed or at all.

19.  On the basis of the above finding of fact, the Board was not satisfied that the 1^st Applicant had established the factual basis in support of her claim under any of the applicable grounds under the USM and dismissed her appeal against the decision of the Director in the Notice.

The grounds of the 1^st Applicant’s application for judicial review

20.  The thrust of the 1^st Applicant’s ground of application is that the Board erred in finding that her evidence was vague and lacked sufficient corroboration and that the documentary evidence is unreliable. In particular, she criticised the Board’s failure to consider her mental state at the time of the rape, failed to take into sufficient account of the fact that she was in and out of consciousness during the course of the rape and that her sister had found blood and injuries on her body. It criticised the Board’s dismissal of the allegation of rape on the basis that it is hearsay and speculation and criticised the Board’s evaluation of the medical certificate.

21.  The other grounds relied on by the 1^st Applicant are the Board’s failure to take into account the likelihood of the rapists’ intention to kill her for fear of identification and the Board’s perceived rejection of her husband’s involvement in political activities on behalf of the UNP. The first ground stands or falls on the Board’s finding about the rape incident. The Board did not seem to have made any adverse finding about the husband’s involvement in the UNP. It will not be necessary to discuss these grounds.

Conclusion on the leave application in respect of the 1^st Applicant

22.  In short, the Court finds there are serious problems in the Board’s finding about the rape. First, the Board accepted the psychiatrist’s opinion that the 1^st Applicant suffered from post-traumatic stress disorder and depression of moderate severity at paragraph 158 of the Decision. If so, what was the post-traumatic stress, what was the trauma and why was she unconscious?

23.  Second, the Board accepted that the 1^st Applicant held a subjective belief that she had been subjected to sexual assault at paragraph 188 of the Decision. That could not be a finding in isolation of any factual basis. The only factual basis which this Court could find from the evidence are that the 1^st Applicant had been chloroformed, that she woke up and found cigarette burns on her body and blood all over her private parts, that she was in pain (presumably) and crawled out of the woods for about a mile until she met a woman and gave her sister’s address to that woman, and eventually her sister brought her to a private hospital: see paragraphs 70 and 74 of the Decision. If these are the factual basis in support of the 1^st Applicant’s subjective belief, how can the Board find at paragraph 189 that it was not persuaded that she was sexually assaulted as she claims or at all? This finding is irrational.

24.  Third, seemingly the Board did not apply the low standard of proof in making its finding, but instead applied the criminal standard of proof beyond reasonable doubt. Even accepting that the Board rightly rejected the medical certificate as unauthentic, that could not wipe away the evidence in paragraphs 70 and 74 of the Decision and 1^st Applicant’s sister’s evidence that she saw blood over the 1^st Applicant’s private part. No explanation has been given by the Board. In the Court’s view, the low standard of proof is discharged if a claimant could present a relatively consistent account which is not discredited by any objective evidence. This Court considered the 1^st Applicant’s account consistent. The Board had not identified any objective evidence which contradicts her account. The Board’s rejection of the 1^st Applicant’s evidence about the rape is an error of law which cannot stand.

25.  However, it is not enough for the 1^st Applicant to prove the rape. To establish her claim to protection under the USM, she had to prove it was performed by the PAP people and that the ill-treatment complained of meets the other requirements under the relevant appropriate grounds. However, the 1^st Applicant could offer no evidence that the rape and other conducts complained of were committed by the PAP people. All that she could offer is her subjective belief or speculation which is not enough. Hence, despite the defects in this part of the Board’s Decision, the 1^st Applicant is still not entitled to protection under any of the four applicable grounds under the USM. There is no prospect of success in the intended judicial review. Accordingly, the 1^st Applicant’s leave application is refused.

The leave application in respect of the 2^nd Applicant

26.  The 2^nd Applicant did not attend the hearing on 20 January 2025. A court staff reached him on his mobile phone. The 2^nd Applicant confirmed that he had received the notice of hearing, but did not appear as he had filed his application for withdrawal and considered his leave application had been withdrawn.

27.  The facts relied on by the 2^nd Applicant are appear from those relied on by the 1^st Applicant. As mentioned above, the Court could not be satisfied that the 2^nd Applicant’s application to withdrawal was made as result of an informed choice and it would be inappropriate to grant him leave to withdrawal his leave application. On the other hand, by his affidavit he had expressed an unequivocal intention that he did not wish to pursue his leave application. He has expressed his intention unequivocally to the court staff and deliberately defaulted the hearing. This Court is therefore satisfied that he had no intention to prosecute his leave application. The Board dismissed his appeal primarily because it found the 2^nd Applicant’s credibility questionable and had failed to establish the factual basis to support his claim for non-refoulement protection.

28.  Having rigorously examined the Decision, the notice of appeal, the amended grounds of application 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 and inherent probability and gave reasons for its finding. It found the 2^nd Applicant incredible and that he had failed to establish the factual basis to support his claim for protection. The Court could not detect any apparent error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success. Having regard to the 2^nd Applicant’s unequivocal intention, the Court considered it would not be unjust, unfair or prejudicial to dismiss his leave application for want of prosecution and made an order accordingly.

Conclusion

29.  For the above reasons, the 1^st Applicant’s leave to apply for judicial review is refused. The Court does not have the 1^st Applicant’s contact address in her home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavour to forward them to the 1^st Applicant.

30.  The 2^nd Applicant to withdraw his leave application is refused. His leave application is dismissed for want of prosecution.

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