RE PERERA ADDIN PRIYANGANI

CACV 374/2023, [2024] HKCA 329

On Appeal From [2023] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 374 OF 2023

(ON APPEAL FROM HCAL 1144 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 9 November 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 25 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 August 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka. She last entered Hong Kong as a foreign domestic helper in August 2015 but her employment contract was terminated early in November 2015. She overstayed and was arrested by the police on 11 December 2017. She thereafter lodged a non-refoulement claim on 13 December 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by her 2 creditors in Sri Lanka due to a loan dispute and her inability to repay the same. The details of the applicant’s claim have been summarised by the Judge at [4] to [8] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 16 August 2018 i.e. the Director’s Decision, the Director rejected the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 20 November 2018 and at which the applicant appeared in person. The Board found, on the evidence, that the applicant’s claim of rape by one of her creditors was not made out. The Board also found against the applicant on her contention that she was threatened by her 2 creditors or they had seriously intended to kill or harm her. In any event, the Board found that state protection and internal relocation were available. The applicant’s appeal was therefore dismissed by the Board’s decision dated 25 April 2019 i.e. the Board’s Decision.

The Judge’s decision

6.  The applicant filed a Form 86 on 30 April 2019 seeking leave to judicially review the Board’s Decision but did not set out any grounds for review, apart from stating that her “money lender is a very dangerous person” and that he could harm her because she was unable to pay back his loan.

7.  In her supporting affirmation filed on the same date, the applicant deposed that she still had a loan problem, her creditor was always looking for her to harm her and that she would be in danger if she was refouled to Sri Lanka.

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [16] to [21] of the CALL-1 Form:

“16. 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).

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

18. 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.”

19. For the reasons given in paragraph 12, supra, the Board rejected the applicant’s evidence. It further found that state protection and internal relocation are viable options for her in Sri Lanka.

20. The applicant has raised no valid ground to challenge the Board’s Decision. 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.

21. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Grounds for appeal

9.  In the Notice of Appeal filed on 17 November 2023, the applicant merely stated that she still had a problem with the loan sharks in her country and she would be unsafe because she still could not repay the loans.

10.  In her written submissions dated 26 January 2024, the applicant repeated her case about the threats from her creditors and her fear of returning to Sri Lanka as she had never paid back her loans. Attached to the applicant’s submissions was what was said to be a loan agreement.

11.  The Applicant was absent at the hearing scheduled on 9 April 2024.

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 the decision of the Board afresh as if it is a fresh application for judicial review.

14.  As can be seen from the above, the applicant has failed to identify with particulars in her Notice of Appeal and written submissions any error on the part of the Judge and thus failed to raise any viable ground of appeal. It is necessary for the applicant to identify some error on the part of the Judge that would justify this court in intervening. She has wholly failed to do so. On this basis alone, her appeal must fail.

15.  In any event, in her application to the Judge, the applicant had failed to provide particulars as to any respects in which the Board was acting illegally or unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established: See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

17.  There is therefore no merit in the appeal and we dismiss it accordingly.