UDIRI APPU WADUGE MATILDA FERNANDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3286/2019

[2025] HKCFI 6307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3286 of 2019

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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 4 November 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 17 October 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 August 2018 (the “Notice”), refusing her application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Sri Lankan national. Her personal background, the factual background leading to the present application, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[1] for reference. In gist, she claims that if returned to Sri Lanka, she will be harmed or killed by Asoka and his men for being unable to repay the loan her son had borrowed from Asoka to enable her to come to work in Hong Kong as a foreign domestic helper and by the consequences of outstanding charges and a warrant of arrest against her.

The Board’s finding

3.  The Applicant testified at the hearing. The Board made the following finding in respect of past events. It accepted that:

(a)  the Applicant’s son may have borrowed one million Sri Lanka Rupees (“LKR”) from Asoka in 2010 whom he knew through their work for a local district councilor;

(b)  the Applicant and her son were involved in an altercation with four men during which the Applicant was injured on her right knee/thigh and her son injured one of the men who had to be hospitalized;

(c)  the Applicant and her son were arrested and charged with an offence in relation to the above incident;

(d)  as the Applicant failed to appear in court, a warrant was issued for her arrest in 2017 for absconding bail;

(e)  Asoka asked the Applicant’s son for repayment since it was made in 2010;

(f)  the Applicant’s son went to work in Qatar in 2015 with the intention of earning money to repay Asoka, but was not paid for his work;

(g)  the Applicant agreed with her son to transfer her land to Asoka to repay the loan;

(h)  the Applicant’s son died in May 2016 with no finding that he was murdered;

(i)  Asoka may have approached the Applicant’s daughter a year and a half after her son’s death; and

(j)  several years before the hearing, some gangster had held her daughter at knife point and demanded 10,000 LKR, but the Board found no evidence that this incident is linked to the incident in (i).

4.  The Board did not accept that:

(a)  Asoka is a powerful and influential person with ties to underworld gangsters who have killed on behalf of his employer, a local United National Party (“UNP”) district councillor;

(b)  Asoka ordered four men to question or attack the Applicant and her son in 2010 over the loan; and

(c)  Asoka made serious threats to kill or harm the Applicant, her son and daughter;

(d)  Asoka killed the Applicant’s son in May 2016.

5.  Accepting that the Applicant had absconded bail, the Board found on the basis of country of origin information (“COI”) and the relevant provisions under the Sri Lanka Criminal Code and Bail Act, that there is a reasonable possibility that the Applicant may, if returned to Sri Lanka, be placed on remand for at least some period of time or may even face punishment of up to one month’s imprisonment, a fine of fifty LKR or both. It then assessed the Applicant’s claim in relation to the risk of harm from Asoka arising from the loan and from the consequences of the outstanding charges and the warrant for her arrest for absconding bail (the “outstanding proceedings”).

6.  In relation to Torture Risk ground arising from the loan from Asoka, the Board found the Applicant’s and her son’s dispute with Asoka was a private dispute and did not accept that Asoka would cause the applicant severe pain or suffering, either physical or mental, reaching a level of severity that would amount to torture. It rejected the Applicant’s argument that she suffered mental torture caused by Asoka as it did not accept that Asoka had murdered her son. Even if there were such risk, the Board was not satisfied that the severe pain or suffering was inflicted by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity, and that Asoka was a public official or a person acting in an official capacity. It did not consider there are substantial grounds for believing the Applicant would be in danger of being subjected to torture, as defined in section 37U(1) of the Immigration Ordinance, if returned to Sri Lanka.

7.  Likewise, it did not accept that the Applicant faced severe pain or suffering amounting to torture from any of the four men involved in the 2010 attack and that the hypothetical future pain or suffering to be inflicted by those men would be inflicted, at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. As for the Applicant’s concerns regarding her detention in Sri Lanka, the judicial process as consequences of the outstanding proceedings, the Board acknowledged allegations that torture has continued in Sri Lanka and is primarily perpetrated by the police. However, the COI indicated that the use or torture referred to individuals arrested and detained on national security grounds and that the risk of torture by the police force has decreased since the end of the civil conflict and is no longer state sponsored. As the Applicant is not of Tamil ethnicity and there is no indication that she would be arrested or detained on national security grounds, the Board found her risk of being subjected to torture would be remote. It does not accept there is a consistent pattern of gross, flagrant or mass violations of human rights in Sri Lanka.

8.  In respect of BOR 2 Risk, the Board found there were no substantial grounds for believing, whether in relation to the loan from Asoka or the outstanding proceedings that there is a real risk that the Applicant will arbitrarily be deprived of her life, have the death penalty impose on her or otherwise be deprived of her rights under BOR 2.

9.  For the same reasons as discussed in relation to the Applicant’s claim under Torture Risk ground, the Board did not accept in relation BOR 3 Risk ground, that the Applicant faced a genuine and substantial risk of treatment amounting to either torture cruel, inhuman, degrading treatment or punishment (“CIDTP”) from Asoka and that any future demands, or even harassment from Asoka to repay the loan would amount to either torture or CIDTP.

10.  Having extensively considered COI about prison conditions in Sri Lanka, the Board acknowledged concerns regarding prison conditions in Sri Lanka, particularly overcrowding, sanitation, detrimental effect on an individual’s health or well-being and the length of detention may amount to degrading treatment, but considered that each case is necessarily highly fact-specific. Having regard to the totality of the evidence before it, the Board was not satisfied that there are substantial grounds for believing that the Applicant would face a real risk of treatment amounting to CIDTP during the time that she may be on remand or in prison in Sri Lanka arising from the outstanding proceedings.

11.  For the above reasons, the Board was also not satisfied that there is a real risk of the Applicant facing harm amounting to persecution from Asoka or arising from the outstanding proceedings. It was also not satisfied that any such harm caused would be on account of one or more of the reasons enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  It found there was no evidence to show that the state of Sri Lanka was unwilling or unable to afford protection to the Applicant.

12.  For all these reasons, the Board dismissed the Applicant’s appeal.

Grounds for judicial review

13.  The Applicant had not advanced any grounds of judicial review in her Form 86. In her supporting affirmation, she complained that the Board disregarded the documents she submitted. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk of harm if returned to Sri Lanka. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

14.  Having rigorously examined the Decision, the papers 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 carefully and tested it against common sense, inherent probability and the country of origin information. It accepted most of her factual evidence, but refused to accept the speculation she drew therefrom. For example, she accepted that her son died but refused to accept her speculation that he was murdered and murdered by Asoka. It accepted she and her son had an altercation with four men, but refused to accept her speculation that the men were sent by Asoka. It accepted her daughter had been threatened with a knife and 10,000 LKR was demanded of her but refused to accept her speculation that Asoka was behind the incident. It was on that basis that it found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

15.  For the above reasons, the Applicant’s leave application is refused.

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