DE SILVA MALMADANA KAPUGE REETA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2444/2020

[2024] HKCFI 3675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2444 of 2020

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam De Silva Malmadana Kapuge Reeta (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 25 November 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 1 March 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Sri Lankan. She was born on 11 July 1964 in Puttalam District, Sri Lanka. She received Grade 8 education and had 3 years of work experience in Cyprus as a foreign domestic helper. She also worked as a foreign domestic helper in Hong Kong.

The Claim

3.  The Applicant claimed that her family were supporters of the Sri Lanka Freedom Party (“SLFP”). She became a supporter of SLEP since she was 18 years old. She became deeply involved in SLFP activities when she was around 30 years old (i.e. the year 1994).

4.  In around January 2015, the Applicant was tasked with promoting SLFP in an upcoming presidential election. SLFP members often gathered in her house and her house became the target of the opposing political party, the United National Party (“UNP”).

5.  After SLFP lost the election, some UNP supporters started harassing the Applicant and other SLFP supporters. On a day in February 2015, about 4 or 5 UNP supporters (“UNP Supporters”) forcefully entered the Applicant’s house and tried to rape her. They threatened to kill her if she resisted them. The Applicant managed to escape in the end.

6.  The UNP Supporters came to the Applicant’s house on several other occasions. They harassed her and humiliated her by taking off her clothes. The Applicant sustained bruises all over her body in her struggle against the UNP Supporters.

7.  In a night in March 2015, three of the UNP Supporters broke into her house but the neighbours scared them away before anything bad happened. The Applicant suffered bruises on her chest.

8.  The Applicant then moved to the homes of her friends or that of her husband’s sister in Kochchikade, Dankotuwa Village and Daluwakotuwa. She did not experience any trouble while staying in their homes. The Applicant then decided to come to Hong Kong to work as a foreign domestic helper.

9.  After coming to Hong Kong, a relative of the Applicant (“K”) told her that one of the UNP Supporter (“S”) had vowed to take revenge on the Applicant for the breakdown of his marriage by throwing acid on the Applicant’s face if he saw the Applicant in Sri Lanka. This was because K told S’s wife that S tried to rape the Applicant. S’s wife was also angry with the Applicant because the Applicant spread the news of S about his character and she also suspected that the Applicant had a relationship with S.

10.  The Applicant claimed that she would be harmed or killed by the UNP Supporters, S and his wife if she were returned to Sri Lanka.

Procedural history

11.  The Applicant arrived in Hong Kong on 13 April 2015 to work as a foreign domestic helper. Her employment was prematurely terminated on 31 May 2015. She did not leave Hong Kong within the prescribed period, ie on or before 14 June 2015 and overstayed in Hong Kong.

12.  She surrendered to the Immigration Department on 7 July 2015. By a written representation of 13 May 2016, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 15 December 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Petition Teams (Security Bureau) as the proposed respondent and the Board as the proposed interested party. The Applicant referred to the decision dated 25 November 2020 (ie the Board’s Decision) as the subject decision for her intended judicial review and exhibited the Board’s Decision to the Supporting Affidavit. It is clear that the Applicant intended to seek judicial review against the Board’s Decision in this application. I proceeded with this application on such basis.

16.  On 23 July 2024, the Applicant filed another affidavit applying to withdraw this intended judicial review application stating that her problems had been settled and that she was not feeling well (“Withdrawal Application”).

The DOI Decision

17.  After considering all the relevant circumstances, the Director noted that the low intensity and low frequency of past ill-treatment from the UNP Supporters was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries she suffered from the UNP supporters were not serious and did not attain a minimum level of severity (§14 DOI Decision).

18.  The Director noted that the Applicant raised the Claim only after termination of her employment in Hong Kong and her application for employment as a domestic helper in Hong Kong was submitted before the 2015 presidential election in Sri Lanka, ie before the happening of the harassing incidents alleged by the Applicant. The Director was of the view that the Applicant’s purpose of coming to Hong Kong was not for protection seeking, but probably for job seeking.

19.  As for the alleged risk from S, the Director noted that K was the one who informed S’s wife about S’s behavior and spread the news. K was apparently never harmed in Sri Lanka and this suggested that the threat from S was not as serious as the Applicant feared.

20.  The Director was of the view that the problem encountered by the Applicant in Sri Lanka was a personal and private dispute between the Applicant and the UNP Supporters in her locality. There was nothing to suggest that UNP or the state was involved in the Applicant’s dispute with the UNP Supporters or the UNP Supporters were acting in official capacity. There was also no evidence to show that the state or UNP was indifferent to or provided any form of encouragement to the UNP Supporters in harassing and threatening the Applicant. On the issue of state protection, the Director found that there were objective indications in the country of origin information ("COI") that reasonable state protection would be available to the Applicant, if she resorted to.

21.  The Applicant had not encountered the UNP Supporters personally anymore after moving out of her own living place which showed that her problem with the UNP Supporters was just localized. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Kochchikade, Dankotuwa Village or Colombo, the UNP Supporters would have great difficulties in locating her. There was no substantial ground to believe that the UNP Supporters in her home area or S and his wife had the abilities and resources to locate the Applicant nationwide in Sri Lanka. There was no evidence to suggest that UNP as a whole had reasons to target the Applicant (§15 of the DOI Decision). After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

22.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

23.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal, her oral evidence given at the 2 hearings before the Board and the new evidence she sought to adduce at the hearings, the Board formed the view that the Applicant was not a witness of truth. The Board was unable to accept as credible any of the central aspects of the Applicant’s claim.

24.  The Board found that the Applicant’s testimony was inconsistent with her evidence to the Director and the inconsistencies were discussed in detail at §99-116 of the Board’s Decision. The Board was not satisfied that the Applicant was even a member of SLFP or that she was even on the run and had had the need to hide in different places. The Board was of the view that the Applicant’s claim in relation to feared harm from S and his wife were vague and unpersuasive.

25.  As for the new evidence sought to be introduced by the Applicant, namely the letters written by the village representative and the officer in charge at the Kochchikade Police Station, the Board did not accept them to be credible evidence. After noting those letters were handwritten and undated, the Board expressed doubts as to why a police officer in Sri Lanka would write a letter in support of the Applicant or come to know about the Applicant’s alleged circumstances.

26.  The Board rejected the Applicant’s evidence in its entirety. It did not accept that she had ever been subject to attempted rapes or other forms of harassment by the UNP Supporters. It also did not accept that the Applicant had been informed of the alleged threat from S. The Board did not accept that she faced any risk upon her return to Sri Lanka.

27.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

28.  In a judicial review, the court does not step into the shoes of the decision makers.

29.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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.”

30.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

31.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated that: “I like to tell to court regarding my USM case was rejected by Petition teams because I was unable to submit my any document hereof during my USM interview but truly I have problem in my country at this moment many difficulty to obtain any document and I will try my best to take document and present situation as soon as possible I allowed.” She then produced the Board’s Decision as exhibit to the Supporting Affidavit. She did not submit further documents to the court after filing of the Supporting Affidavit.

32.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

33.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

34.  The Board was not satisfied that the Applicant had been or would be subject to any form of proscribed harm either by claimed political opponents in UNP or any non-state agents including S and his wife in Sri Lanka, as claimed, if she were returned to her home country. The Board concluded that there was not a real risk that the Applicant would prospectively face any of the proscribed forms of harm should she return to Sri Lanka.

35.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

36.  The Applicant subsequently filed the Withdrawal Application on 23 July 2024 stating that her problems were all settled and she was not feeling well. She asked to withdraw her case and to go back to Sri Lanka.

37.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

38.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

39.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

40.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

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