VITHANA PATHIRANNEHELAGE WARUNAPRIYA LAKMAL JAYARATNA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 324/2022

[2022] HKCA 1857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 324 OF 2022

(ON APPEAL FROM HCAL NO 2269 OF 2018)

_____________________

_____________________

_______________

J U D G M E N T

_______________

Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 4 August 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2388).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 January 2017 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 5 December 2022.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Sri Lanka.  The applicant claimed to have arrived in Hong Kong illegally on 28 December 2008.  He raised a torture claim on 9 January 2009, which was refused by the Director on 19 September 2012 and the Adjudicator (Torture Petition) on 25 October 2012.  On 25 March 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the military or the intelligence operators who supported the ex-president Mihinda Rajapaksa (“MR”).  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] to [6] of the Leave Decision.

5.  By a Notice of Decision dated 24 January 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds other than torture risk^[1], namely, BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board on 7 February 2017.  The applicant attended the hearing on 10 September 2018 and a Sinhala interpreter was also present to provide language assistance.  Having assessed and considered the totality of the evidence, the Board found that there was no credible evidence that MR was involved in any of the incidents the applicant had described or that MR had any adverse interest in him.  Although the applicant alleged he had received numerous anonymous calls, on no occasion did the caller say who they were or mention MR.  The applicant also failed to put forward any credible evidence that he had personally suffered harm, or was personally at risk, from MR or MR’s family.  The Board also refused to accept that those past incidents (including the anonymous threatening phone calls and various incidents of alleged harassment) amounted to persecution or would in any way support the applicant’s assertions of future risk of harm.  In any event, due to the lapse of time, the Board did not believe that the said perpetrators still had any adverse interests in the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 19 October 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in his Form 86.  In his supporting affidavit, he only stated that he was not satisfied with the Board’s Decision.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [14] to [20] of the Leave Decision:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

17. The ground in paragraph 13 above is not valid reason to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

The Appeal

9.  On 16 August 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“Dear Sir/Madam

I would like to tell through this grounds responding my judicial review refused and I was unable to submit my supporting document in time. But I expect oral hearing to submit to Court but without hearing refused. The case it was unfair decision I need to review to find the justice for my life. Thank you.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicant lodged his written submissions on 7 November 2022.  In those submissions, he repeated the factual basis of his non-refoulement and that if refouled, his life would be in danger.  He also attached various documents to his written submissions, namely (i) a Diagnosis Ticket from Base Hospital indicating that the applicant was admitted on 17 April 2008 and discharged on 20 April 2008; (ii) a letter from S. Thomas’ College Mount Lavinia dated 9 November 2010; (iii) a report dated 19 March 2012 (and an English translation thereof) concerning a complaint made by the applicant’s mother on 30 December 2011 in the Police Station of Thalangama; (iv) an Acknowledgment of Complaint dated 3 December 2008 (and an English translation thereof) concerning the applicant’s complaint of abuse and threat over phone; (v) a letter dated 29 February 2012 (and an English translation thereof) from the applicant to the Chief Inspector of Police of the Peliyagoda Police Station requesting an extract of the complaint made on 3 December 2008; and (vi) an extract from the Information Book of Athurugiriya Police Station issued on 12 January 2012 (and an English translation thereof) concerning a complaint made by the applicant on 24 July 2008 as to his bus (collectively referred to as “the Documents”).

11.  We heard the appeal on 5 December 2022. A Sinhala interpreter was present to provide language assistance.  The applicant attended the hearing with his son who is currently 1-year-and-2-months old.  During the hearing, the applicant confirmed that he had nothing to add to his written materials.  He further submitted that he had been a single father for the past year as his son’s mother, who had previously worked as a foreign domestic helper, had returned to her country after her visa had expired when his son was 2 months old. 

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  At the outset, all of the applicant’s allegations are vague, bare contentions.  Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  The applicant’s oral submissions insofar as his son is concerned are also irrelevant to the present appeal.  Accordingly, his submissions are plainly not proper grounds of appeal and on this basis alone, his appeal must fail. 

15.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. 

16.  Insofar as the Documents are concerned, they were not produced before the Deputy Judge.  While the Diagnosis Ticket and the police report dated 19 March 2012 concerning the applicant’s mother’s complaint on 30 December 2011 might have been before the Board (see the Board’s Decision at [66] and [70]), it is unclear whether the other documents were previously before the Board or the Director.  In any event, we see no basis to entertain those documents on appeal given that the applicant had failed to demonstrate how those Documents satisfied the conditions as set out in Ladd v Marshall [1954] 1 WLR 1489 at p1491[5].   More importantly, given that the applicant plainly failed to point out any error in the Board’s Decision and the Leave Decision, we see no basis to intervene with those decisions or consider the Documents at this late stage on appeal.  Accordingly, there is no basis to interfere with the Board’s Decision and the Leave Decision.

17.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.