KULAPU WADUGE CHANDRANI SILVA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2023/2019

[2024] HKCFI 3079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2023 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 21 October 2024, I shall deal with her application on paper.

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

The applicant

4.  The applicant, aged 43, is a national of Sri Lanka. She first arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 22 June 2010. Her employment contract was terminated on 24 November 2015 and she overstayed her visitor visa since 11 December 2015. The applicant was arrested by the police on 20 March 2018 for overstaying and she was sentenced to imprisonment of 3 months on 23 March 2018. The applicant made a non-refoulement claim in April and May 2018. The claim was made on the basis that, if refouled, she would be harmed or even killed by (i) her ex-husband; (ii) his fellow gang members and (iii) some other gangsters.

5.  According to the applicant, her ex-husband was a gangster. She first met him in 1996, shortly after which she was raped by him. Despite so, she still chose to marry him. Since then, she was subjected to repeated abuse at his hands, including assaults, kidnapping and further rape. Due to the constant threats from her ex-husband, the applicant went overseas to work as a FDH. Her last encounter with her ex-husband was in 2004.

6.  The applicant maintained contact with her mother and was told that her ex-husband was still threatening to kill her upon her return. In 2017, the applicant received a call from a member of her ex-husband’s gang, warning her not to return to Sri Lanka. Thereafter, she immediately changed her phone number.

7.  Meanwhile, her ex-husband was involved in murdering someone from his rival gang and she feared retaliation from them. As informed by her mother, members of the rival gang had attempted to capture her in the airport on one occasion, but for her changing the date of her air ticket.

8.  The applicant claimed that she had lost confidence in the police because they did not take it seriously despite her previous reports to them. She also considered internal relocation not viable because she lacked the necessary financial capability and had no one to rely on elsewhere.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 23 August 2018 (“the Director’s Decision”).

The Director’s Decision

10.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the domestic violence from her ex-husband was not severe as it had no prohibitive effect to her daily life [15]-[16]; (ii) there was no evidence indicating that her ex-husband or the rival gang had the means to locate her anywhere within Sri Lanka [17]; (iii) the applicant’s delay in seeking protection was inconsistent with the behaviour of someone genuinely in fear [18]; (iv) the claimed fear of revenge from the rival gang was based on hearsay and too far-fetched [19]; (v) state protection would be available [21]-[29] and (vi) internal relocation would be viable [30]-[30](sic).

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 10 January 2019, the Board conducted an oral hearing.

13.  The Board considered that the applicant had given a largely consistent account of her past experience in Sri Lanka and found her to be a truthful witness. Her claims also accorded with the country of origin information in general about the nature and prevalence of domestic violence in Sri Lanka [77].

14.  The Board accepted that the applicant was forced into marrying her ex-husband after being raped by him and that she was subjected to constant abuse at his hands thereafter, including kidnapping and further rape [83]. Although it was accepted that the applicant’s ex-husband might have continued threatening her through her family in recent years, the Board considered that such threats would unlikely materialise given that the applicant had not been harmed by her ex-husband since 2004 despite her return to Sri Lanka on at least three occasions [78], [84]-[85]. Meanwhile, the Board rejected the applicant’s claimed threat from her ex-husband’s fellow gang members and from the rival gang because the former had never harmed her in the past, while the claim against the latter was merely speculative [86]-[87]. In any event, state protection and internal relocation would also be available to the applicant [89]-[92].

15.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [13]-[22], [93]-[96]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

16.  The applicant has filed Form 86 dated 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.  The applicant has raised the grounds below in support of her application.

(1) The Board had accepted some of her evidence, yet, it came to its conclusion which is illogical.

(2) The Board speculated that state protection is available to her. However, the Board had not given sufficient weight to the USSD report, which notes prevalence of corruption in Sri Lanka and that protection for women there is inadequate.

DISCUSSION

18.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

19.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20.  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.”

21.  For the reasons given, on the one hand, the Board had accepted the applicant’s evidence in relation to her being raped and assaulted by her ex-husband, Jude, which forms the general background of her claim, and on the other hand, it found that she does not have real risks of harm if she returns to Sri Lanka. This is because the Board had to determined her claim in relation to all the applicable risks by reference to her past experiences, the probability of future risks, state protection and internal relocation. Even if the Board accepted some facts of her claim, it does not necessarily mean that those accepted evidence is sufficient to support her claim if it does not meet the requirements of the applicable risks. Thus , the Board concluded at paragraph 93 of the Board’s Decision:

“On the facts accepted, the Board does not consider there to be anything which creates a risk of severe pain or suffering being inflicted on the Appellant should she return to Sri Lanka. Consequently, the Board is not satisfied that there are substantial grounds for believing the Appellant to be in danger of being subjected to torture if returned to Sir Lanka.”

22.  The applicant also complains that the Board had not given sufficient weight to the USSD report, which she claimed, to note prevalence of corruption and protection for women in Sir Lanka is insufficient. In fact, the Board had considered this report. At paragraph 89, the Board said:

“… However, the USSD report also suggests both that there is genuine intent on the part of the government, and that some real progress is being made, as can be seen from the subsequent quote indicating that the police have conducted awareness campaigns at grassroots level to encourage women to file complaints, and that they continue to establish women’s units in police stations despite funding limitations. …”

23.  The Board had also researched on various agencies in Sri Lanka providing support which she may be able to access. See paragraphs 69-71. The applicant was invited to make comments on those materials and information. The Board remarked:

“72. The Appellant did not specifically respond to the matters raised by the Board, …”

24.  There is no valid reason that this Court should interfere with the Board’s finding of the facts.

25.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

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