BOMBUWALA DEWAGE INOKA DILRUKSHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended, naming only the Torture Claim Appeal Board / the Non‑Refoulement Claims Petition Office as the Putative Respondent and naming only the Director of Immigration as the Putative Interested Party.

2.   The application for leave to apply for judicial review be dismissed.

 

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 25 October 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 14 September 2022 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 28 September 2021 (the “DOI Decision”).

2.  I amend the Form 86 on my own motion, naming only the TCAB as the putative respondent and only the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application and attended the same. When asked if she had anything to add, she drew the court’s attention to her young baby and said that she was now at greater risk and facing a bigger threat as she had a baby.

Background

4.  The Applicant is a national of Sri Lanka.  In gist, she claims that she is in fear of being arrested, and cannot return to Sri Lanka because of her relationship with a Muslim man who was arrested after her departure in connection with the Easter bombings in Sri Lanka in April 2019.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant’s Form 86 states one ground on which relief is sought, being “Because I don’t have any knowledge of in law nobody gave me any advice to submit [illegible]”.  Further, in her supporting affirmation, she states that “I am writing this grounds regarding my appeal petition was dismissed by petition being but still I have problem by police department knows I had connection with suspect of easter bomb blast if I go my life become unserton (sic)…”[2].

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [40‑64]. The TCAB considered that the Applicant’s claims were extremely vague and lacking in detail, particularly as she was unable to provide any details beyond what was in her statement, such as the Muslim man’s full and real name, whether he was arrested or whether he was still in custody.  It is also to be noted that she merely had a tenuous relationship with that man [44].  Although she was given the opportunity to produce the document she claimed the police had sent to her mother after the hearing and before the decision was made, she had not produced it [45].  Taking into consideration of all material evidence, the TCAB concluded that the central core of her claims was not credible [48], and there was no basis to her claim other than speculation [51].  In view of the above findings, the Applicant’s grounds must fail.

10.  In relation to her ground that she has no knowledge of the law and nobody gave her advice, the high standard of fairness does not grant the Applicant an absolute right to free legal representation or interpretation services at all stages of the proceedings (Re Zafar Muazam (unrep., CACV 2/2018, 23 March 2018); Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; Re Ahmad Syed Rafiq [2018] HKCA 178 at §22; Akhondo Shakil [2021] HKCA 1616 at §20[10]; Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378; Kamran Khan [2022] HKCFI 1924 at §§21‑25 and [2022] HKCA 230 at §§16-17).

11.  Her other purported ground of appeal was entirely factual, and had been (correctly) dealt with by the TCAB Decision.

12.  I have also considered the Applicant’s oral submissions.  The Applicant’s family circumstances in Hong Kong are not valid grounds or relevant consideration in relation to her own non-refoulement claim: Oguzie Ikechukwu Charles v Torture Claims Appeal Board, unreported, CACV 469/2021, 21 January 2022, [2022] HKCA 135, at [20] and Re Adeel Muhammad, unreported, CACV 71/2022, 7 August 2023, [2023] HKCA 948 at [7].

13.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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