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HCAL 529/2017
[2018] HKCFI 1252
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 529 of 2017
BETWEEN
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Rajaram Razeena |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 43-year-old national of Sri Lanka who arrived in Hong Kong on 24 August 2006 with permission to work as a domestic helper until 24 August 2008 or within 2 weeks of early termination of her employment contract. On 19 September 2006 her employment contract was prematurely terminated, but on her application for change of employer the applicant’s stay in Hong Kong under her second employment contract was extended to 13 October 2007 or within 2 weeks of the termination of her second contract, but when it was again prematurely terminated on 9 May 2007, she did not depart thereafter and instead overstayed until 11 March 2014 when she was arrested by the police. After she was referred to the Immigration Department for investigation, she raised her non-refoulement claim on 14 March 2014 on the basis that if she returned to Sri Lanka she would be harmed or killed by her creditor or by her abusive husband. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Wellawatte, Colombo District, Western Province of Sri Lanka. After leaving school she got married in 2000, and to set up their new home she and her husband in April 2001 borrowed 50,000 Sri Lankan rupees from GM a wealthy and influential man and a member of the ruling political party United People Freedom Alliance (“UPFA”), for which they signed an agreement for the loan at an interest rate of 7,500 Sri Lankan rupees per month until full payment of the loan.
3. However, by September 2001 after making four interest payments they were unable to do so when her husband lost his job, and so they went to GM’s home to ask for more time to make repayments, to which GM agreed but only after giving them a warning that there would be consequences if they defaulted with their payments again.
4. About 10 days later the applicant’s husband was asked by GM to put up rallying posters for UPFA in Colombo, and that even though thereafter they still failed to make any further repayments, GM would either demand the applicant’s husband to put up more posters for UPFA or had him beaten up by his men, but whenever her husband was beaten up, he would blame it on the applicant and vent his anger by beating her when he came home, of which the applicant would report to the police who would simply just give her husband a warning without taking any further action.
5. In July 2004 while the applicant and her husband were on a motorcycle on their way home, they were struck by a van and both sustained injuries and were hospitalized, and although the police recorded the incident as a traffic accident, the applicant suspected that it was an attempt by GM’s men to murder them for failing to repay their loan.
6. After the motorcycle incident the wife of GM on two occasions came with some men to the applicant’s home to demand repayment of the loan due to GM, and when the applicant failed to do so, she slapped her on the face with threats to kill her or her husband and to kidnap their son if they still failed to repay the loan, of which the applicant again reported the threats to the police but was simply told to just pay off the loan, while her husband would continue to abuse the applicant, and the police would also simply just give him a warning.
7. By 2006 and with the abuses from her husband becoming more serious including one occasion when he poured kerosene on her and tried to set fire to her body until he was restrained by others, the applicant decided that she should leave Sri Lanka for her own safety and therefore applied to work as a domestic helper in Hong Kong for which she arrived on 24 August 2006 for her first employment contract, and subsequently lodged her non-refoulement claim on 14 March 2014, and for which she completed her Non-refoulement Claim Form (“NCF”) on 11 September 2015 with legal representation from the Duty Lawyer Service which revealed that her husband who had gone to work in Saudi Arabia passed away there on 29 July 2014 without paying off the loan to GM, and hence she heard that GM was still looking for her for its repayment.
8. By a Notice of Decision dated 30 December 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found the risk of harm to the applicant from her husband has gone with his death, while the low intensity and frequency of past ill-treatment from GM and his men is indicative of a low risk of harm from them upon her return to Sri Lanka as it was not accepted that GM would still have any adverse interest in her after all these years, that state protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the applicant to move to areas away from her home district such as Mannar in the Northern Province of Sri Lanka where she can live and work safely from any threats from GM.
10. By a Notice of Further Decision dated 16 January 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit 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”).
11. By then the applicant was already in the process of his appeal to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 12 January 2016, and for which she attended an oral hearing on 24 January 2017 before the Board during which she did not make any further representation other than repeating her claim that she cannot go back to Sri Lanka. On 16 June 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.
12. In its decision the Board found on the facts of the applicant’s case that the threats from GM were not serious nor did he ever follow up with any actions against the applicant, that she did not genuinely want to come to Hong Kong for non-refoulement protection, that state protection is available upon her return to Sri Lanka if resorted to, and that it would not be unduly harsh for her to relocate to anywhere in the country.
13. On 18 August 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in her affirmation of the same date did she put forward any grounds for her intended challenge other than merely stating that she was not given time to explain her problem and that her life would be under threats if she was to return to Sri Lanka.
14. As noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only play a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law or procedural unfairness or whether the decision is irrational or Wednesbury unreasonable in the public law sense.
15. Here in the absence of any particular or specific grounds from the applicant when she did not even say that the Director or the Board has erred in their decisions, while the claim that she was not given time to explain her problem is plainly incorrect as she did go through lengthy screening interviews during the process before the Director as well as an oral hearing before the Board.
16. Nevertheless, upon proceeding to 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.
17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.
Dated the 8th day of June 2018.
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(Gloria NG)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 8 June 2018
Rajaram Razeena
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 June 2018
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 2932/16/1/55/S63
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9001425/16 (Formerly RBCZ 1644/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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