JUWANA BADUGE DARSHANEE v. TORTURE CLAIMS APPEAL BOARD

HCAL 2149/2019

[2021] HKCFI 1528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2149 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Sri Lanka who last arrived in Hong Kong on 18 October 2014 with permission to work as a foreign domestic helper until the expiration of the employment contract on 18 October 2016 or within 14 days of its early termination, but when it was prematurely terminated on 1 January 2015, she did not depart and instead overstayed in Hong Kong, and on 3 March 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Sri Lanka she would be harmed or killed by her creditors for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Leheuge Watta, Kotuwegoda, Matara, Sri Lanka. After leaving school, she married her husband and raised a family of 3 children in her home district.

3.  As her husband could only find casual jobs with limited income, to help out with the family’s finance, the Applicant in 2013 decided to come to work in Hong Kong as a foreign domestic helper by borrowing a loan from a local money-lender to pay for the agency fees and with monthly interests payable on her loan.

4.  In December 2013 the Applicant arrived in Hong Kong to commence her first employment contract which was however prematurely terminated in March 2014, and the Applicant therefore returned to her home in Sri Lanka.

5.  In June 2014 the Applicant borrowed a loan from another money-lender for her husband to start a tea trading business and also for her to come to work in Hong Kong again as a foreign domestic helper, for which she arrived in Hong Kong in October 2014 for her second employment contract.

6.  However, her employment contract was prematurely terminated in January 2015, and as a result she was unable to make any loan repayments to her creditors who then threatened her husband that they would kill her upon her return to Sri Lanka, and so the Applicant overstayed in Hong Kong until 3 March 2015 when she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 15 March 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditors upon her return to Sri Lanka as low due to the absence of any past ill-treatment from them, that her problems with them were private monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Sri Lanka away from her home district in large cities such as Colombo where it would be difficult if not impossible for her creditors to locate her.

9.  On 26 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 13 February 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 12 July 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found inconsistencies, exaggerations and implausibility in the Applicant’s evidence and in the absence of any reliable or documentary evidence such as copies of her alleged loans agreements that it found her claim not credible, and concluded that she failed to establish her claim under any of the applicable grounds.    

11.  On 29 July 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim of fear of harm form her creditors without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

13.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 - 72 of its decision with the benefit of hearing her in his oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16.  Furthermore, the Applicant on 23 April 2021 filed an affirmation requesting to withdraw her application as all her problems in her home country “are finished” and that she wants to return home as soon as possible.

17.  In the premises, and as I am not satisfied as for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that the basis of her claim no longer exists, I accede to her request and accordingly dismiss her leave application.

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