DE SILVA ANTHONY MENEKA KUMARASENA v. TORTURE CLAIMS APPEAL BOARD

CACV 532/2020

[2021] HKCA 958

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 532 OF 2020

(ON APPEAL FROM HCAL NO 445 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the judgment of the court):

Introduction

1.  On 18 September 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 13 March 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 31 May 2016 and 22 May 2017 refusing to reopen a withdrawn torture claim and rejecting the applicant’s non-refoulement claim respectively.

2.  On 30 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Sri Lankan national.  He arrived in Hong Kong on 26 June 2005, and was permitted to remain as a visitor until 26 July 2005.  He did not depart and has overstayed. On 14 February 2009, he was arrested by police for overstaying and was referred to the Immigration Department.  The applicant raised a torture claim on 16 February 2009, but subsequently withdrew it on 13 March 2012 and 20 March 2012.

4.  On 8 June and 8 August 2012 however, the applicant requested that his torture claim be reopened; the application to reopen that claim was refused on 31 May 2016.  He lodged his current non-refoulement claim on or about 23 April 2016. 

5.  The applicant’s claim was based on the fear that, if he returned to Sri Lanka, he would be harmed or even killed by members or supporters of the United People’s Freedom Alliance, due to his having campaigned for the United National Party of which he was a member.  The factual background was set at paragraphs 20 to 45 of the Board’s decision.

6.  By notice of decision dated 22 May 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds except torture risk^[1] and determined it against them.  The remaining applicable grounds are BOR 3 risk^[2], persecution risk^[3], and BOR 2 risk^[4]. 

7.  The applicant appealed to the Board against the Director’s decisions dated 31 May 2016 and 22 May 2017 respectively.  An oral hearing was held on 25 October 2017 and 3 November 2017, during which the applicant gave evidence with a Sinhala interpreter present. The Board found that the applicant had failed to satisfy the requirements of s37ZE(2) of the Immigration Ordinance which sets out conditions for re-opening a withdrawn torture claim.  The Board examined documents which he claimed would support his case.  The Board found that he was not a credible witness, due to many inconsistencies and deficiencies (indeed, he even claimed to have been a supporter of another political party altogether and then sought to explain the inconsistency by saying his document was written by a friend).  The Board noted that he was not a person of low education or intellect, having done business overseas, and rejected his entire factual account. 

8.  Further, the Board found that even on the applicant’s factual account, there was no real risk, because the applicant’s level of political involvement was low, and at the time of the Board hearing, 13 years had elapsed during which his family in Sri Lanka has not been harmed.

9.  As such, the Board found that there was no real risk of harm in the event of refoulement, and also no basis to reopen his withdrawn torture claim.  The Board also found that internal relocation was viable and that sufficient state protection was available.  Thus the Board dismissed the applicant’s appeal on 13 March 2018 on all the applicable grounds.

Decision of the court below

10.  On 19 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his supporting affirmation, he stated that the rejection of his claim was unfair because he gave supporting documents.  However, he did not raise any proper or specific grounds for judicial review.

11.  Following consideration of the documents only, on 18 September 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 ([2020] HKCFI 2316, HCAL 445/2018) as follows:

“14. On 19 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his 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 his intended challenge.

15. 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.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and 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.”

Appeal to this Court

12.  On 30 September 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are his credibility was declined because his supporting documents were disregarded, that there are problems for opposition supporters in Sri Lanka and that he would like to stay until his problems are finished.

13.  This Court directed on 14 April 2021 that the applicant must lodge his written submissions on appeal by 13 May 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

14.  The applicant has failed to lodge any submissions as directed.  The hearing date was accordingly vacated and this appeal is disposed of on paper without a hearing.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.  The applicant did not provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

18.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on the applicant’s credibility (having examined among other things the documents he proffered in support), and on its finding that there would be no real risk of harm in the event of refoulement, due to the applicant’s family not having been harmed in the intervening years since 2004. The Board also found that internal relocation was viable and that state protection was available.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

19.  The applicant’s argument in his Notice of Appeal that his credibility was declined because his supporting documents were disregarded, is clearly without merit.  It is evident from the Board’s reasons for its decision that the Board carefully set out or summarized and considered the relevant content of the applicant’s supporting documents. It was due to the many inconsistencies and deficiencies in his evidence that led the Board to find that he was not a credible witness.

20.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

21.  For these reasons, this appeal is dismissed.