FERNANDO MIHINDUKULASURIYA LALITHA RAMANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2310/2019

[2025] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2310 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 7 August 2019 (“Board's Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 8 January 2019 (“Director's Decision”) rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondent(s). As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 12 December 2024. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant was a national of Sri Lanka. She arrived in Hong Kong on 29 December 2010 to work as a foreign domestic helper. Upon the premature termination of her employment contract on 18 June 2011, the applicant overstayed in Hong Kong since 25 July 2011. On 20 June 2018, she surrendered to the Immigration Department. By written significations dated 26 August 2018, 28 August 2018 and 6 September 2018, the applicant lodged a non-refoulement claim, and the applicant’s case was considered under all applicable grounds - the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear that if refouled, she would be harmed or killed by the creditor for an outstanding loan of 1 million Sri Landan Rupees (“SLR”) the applicant’s late husband borrowed in 2008.

6.  According to the applicant, her husband borrowed the subject loan to expand his fish trading business. However, after the closing of the fish business in mid-2010 due to the poor business and poor health of the husband, the interest payments were in arears. The creditor started to exhort to physical attacks against the husband and threats against the couple for repayment. The creditor even once threatened to take away their daughter, and in July 2010, attempted to rape the applicant. In October 2010, when the creditor and his gang came to the husband for repayment, the creditor insisted that the loan had been increased to 1.5 million SLR. The applicant therefore came to Hong Kong in December 2010 in order to earn money to repay the loan. Upon the termination of her employment contract, the applicant could not remit any money for the loan repayment. The applicant’s husband died from a heart attack in November 2011 after the creditor’s threats and harassment. The applicant was told that the creditor had been asking for the applicant’s whereabouts.

7.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. The Director found the past ill-treatments and threats were only directed against the applicant’s late husband but not to the applicant. Hence, the risk of harm was assessed to be low. The Director also found that the applicant’s delay in only raising the re-foulement claim after 6 years of overstaying was inconsistent with her asserted fear. Further, the Director found that the matter was a monetary dispute that was private in nature and without any official/state involvement. After having considered the country of origin information reports (“COI”), the Director was satisfied that the Sri Lankan government would exercise due diligence to prevent, investigate, and punish the perpetrator, and in any event, state protection was available and that internal relocation alternatives are viable. Hence, the applicant’s appeal to the Board against the Director’s Decision.

8.  On 4 June, 6 June, and 25 June 2019, the applicant attended hearings before the Board. In the Board’s Decision, the Board found that the applicant’s account of events incredible. After comparing the English translation of the “Promissory Note” for the renewed loan of LKR 1.5 million with the original, the Board found that the authenticity of the documents highly suspicious, and rejected the documents. The Board found that there was no real risk that the applicant would be subjected to serious harm on her return. In any event, the Board was satisfied that both state protection and internal relocation were available, and found that the applicant’s appeal failed on all applicable grounds.

Legal principles applicable to judicial review

9.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

10.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she deposed that she was not satisfied with the decision and exhibited a copy of the Board’s Decision. In her written submissions dated 9 April 2021, the applicant submitted that the Board acted in a procedurally unfair manner; and that she was not given sufficient time for her to prepare the hearing before the Board. At the hearing, this court had asked her to elaborate on these submissions. However, all the applicant stated was that as her husband had died, she could not go back to her country now as no one would help her. Since the applicant was acting in person, this court asked her what mistake or error she believed the Board had made. She stated that the husband’s creditor would torture her if she were refouled. Despite the court’s probing, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. There were no evidence or identification of errors in support of the intended challenge.

11.  The applicant also submitted written submissions dated 9 April 2021, alleging a breach of procedural fairness and requesting for an oral hearing. However, no particulars were provided in support of her bare assertions.

12.  The Board’s Decision was arrived after examining the applicant’s evidence in detail. It found that the applicant’s account was not credible and in any event, even taken at its highest, there was no real risk that the applicant, if refouled, would be subjected to serious harm. Furthermore, the applicant has an option of internal relocation alternatives. These are findings of fact, which the court in a judicial review will not interfere with.

13.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks.

14.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

15.  The Form 86 is amended on the court’s own motion.

16.  The Leave Application be dismissed.

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