HITINAYAKA MUDIYANSELAGE NALINDA SARATH BANDARA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 297/2022

[2022] HKCA 1859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2022

(ON APPEAL FROM HCAL NO 1103 OF 2019)

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J U D G M E N T

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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 21 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2217).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 March 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 August 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.  He entered Hong  Kong on 25 August 2014 as a foreign domestic helper.  His employment contract was however prematurely terminated on 11 November 2014. He did not depart within the limitation of stay and had overstayed since 26 November 2014. On 15 October 2015, he surrendered to the Immigration Department.  On 26 February 2016, he raised a non-refoulement claim on the basis that if refouled, he would be harmed or killed by the United National Party (“UNP”) people for his affiliation with United People’s Freedom Alliance (“UPFA”), and for the death of the UNP man who was shot by his uncle.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [5] of the Leave Decision.

5.  By a Notice of Decision dated 10 August 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[1], 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 21 August 2017.  The applicant attended the hearing on 10 December 2018.  Having assessed and considered the totality of the evidence, the Board considered that the applicant’s claim was riddled with contradictions and obscurities and rejected his account.  The Board did not accept that he was ever threatened or assaulted.  Alternatively, the Board considered that even if it were to leave aside the issue of credibility and accept the applicant’s account, the applicant had failed to prove any real risk that he would be subjected to serious harm of such severity as to amount to torture, CIDTP, risk to life or persecution.  After considering the applicant’s case and the relevant Country of Origin information (“COI”), the Board also considered that state protection and internal relocation would be available to 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 24 April 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86, the applicant did not state any ground of review.  In his supporting affirmation, he only stated that his enemies would take revenge against him and that he was scared to return to his home country.  He also attached a statement in which he reiterated the factual basis of his non-refoulement claim and the general situations after he had arrived in Hong Kong and that given the political and social conditions in Sri Lanka, his life would be in danger if he returned.  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. Those materials in paragraph 13 above are not valid reasons 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 2 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:

“I would like to inform you that still I have problem in my country for me because at this movement U.N.P. leader come to rule our country and become more crisis too. He used to take revenge from who against his party me too. Therefore I seemed to go at this moment I will explain in my oral hearing that why I don’t like to go at this movement.” (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, the applicant again claimed that his enemies are causing trouble to him and his family and that he is scared to return to Sri Lanka as his life would be in danger if he returned. He also stated during 2011 to 2014, many incidents happened to him and he was unable to submit supporting documents in given the delay and the unstable governmental situation.  He then attached two new documents, namely (i) a cash receipt dated 9 October 2022 and (ii) an extract from the Information Book of Wellawa Police Station dated 25 September 2013 (and an English translation thereof), which was issued on 9 October 2022 (“the New Documents”).  From the face of the extract from the Information Book of Wellawa Police Station, the applicant appeared to have made a report on an incident where 4 people from the opposition party went to his home on 25 September 2013, of which one person then slapped the applicant and told him not to get involved in the election activities and scolded him and his wife that he would kill him.   

11.  We heard the appeal on 5 December 2022.  A Sinhala interpreter was present to provide language assistance.  During the hearing, the applicant confirmed he had nothing to add to his written materials.

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.  Accordingly, his submissions are plainly not proper grounds of appeal.  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, COI 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 New Documents are concerned, the applicant also failed to demonstrate how the New Documents satisfied the rules in relation to admission of fresh evidence on appeal as set out in Ladd v Marshall [1954] 1 WLR 1489 at p1491[5].  At the outset, the applicant failed to demonstrate how the New Documents had any bearing or influence on his case.  On its face, the extract from the Information Book of Wellawa Police Station only showed that the applicant claimed he was attacked by strangers which he claimed to be from the opposition party but whose faces were completely covered and that he did not know their identities.  At best, it only showed that the applicant had reported an isolated incident from unidentified attackers to the police.  It did not show any injuries had been sustained by him, or whether the police followed up with the investigation on this matter.  Further, although the applicant contended that he was unable to submit supporting documents given the unstable governmental situation, he provided no evidence to support his bare contention or why the New Documents could not have been obtained earlier with reasonable diligence, when the alleged incident happened over 9 years ago in 2013.  Clearly, the New Documents failed to satisfy the Ladd v Marshall conditions and we refuse to admit them as fresh evidence on appeal.   

17.  In any event, in the present case, based on the evaluation of evidence before it, the Board found that the applicant failed to demonstrate that he would be at risk of being subjected to ill-treatment if refouled.  It also found that state protection and internal relocation were available for him.  As explained above, the evaluation of evidence and the assessment of viability of internal relocation are within the province of the Board, and the Court will not interfere with its evaluation and assessment unless there are public law grounds to do so.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  We see no basis to interfere with the Leave Decision.

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