ELIYAS JOUITH MEARL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 433/2020

[2021] HKCA 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 433 OF 2020

(ON APPEAL FROM HCAL NO 173 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal from the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 10 June 2020 refusing to grant an extension of time for the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“Board”) dated 29 September 2017 and dismissing the leave application.[1]  In its decision, the Board had dismissed the applicant’s claim on BOR 2 risk[2] and confirmed the decision of the Director of Immigration (“Director”) dated 18 January 2017 rejecting the applicant’s non‑refoulement claim on BOR 2 risk.

Background

2.  The applicant is national of Sri Lanka.  He entered Hong Kong illegally on 3 March 2007 and was arrested by the police on 3 September 2008.  After he was referred to the Immigration Department for investigation, he raised his non‑refoulement claim by way of written signification dated 6 September 2008.

3.  The applicant’s claim was made on the basis that if he returned to Sri Lanka he would be harmed or killed by members of the Liberation Tigers of Tamil Eelam (“LTTE”) over a land dispute in Sri Lanka.  The factual background was succinctly summarized by the Judge in [1]‑[5] of his decision.  Essentially, the applicant says that he bought certain land in 2002 and 2003, and that in 2005 the LTTE made threats and demands to him that he had to sell the land to them.

4.  By notice of decision dated 26 September 2014, the Director assessed and dismissed the applicant’s claims based on BOR 3 risk[3], persecution risk[4] and torture risk[5].

5.  The applicant lodged an appeal to the Board against the Director’s decision.  An oral hearing was held on 3 June 2015.  In its decision given on 3 November 2015, the Board dismissed his appeal.  The Board found that there were no state agents involved in the acts alleged by the applicant and that the applicant had not been subjected to severe pain and suffering.  The risks he alleged was simply his own assertions and speculation.  The applicant did not suffer any attack or receive any injury over the alleged incidents and the risk of harm upon his return was neither foreseeable nor real.  There was no element of state involvement or acquiescence and he was able to depart and re‑enter Sri Lanka via proper immigration channels without encountering any problem with the government or other officials.  The Board therefore dismissed the applicant’s appeal in relation to BOR 3 risk, persecution risk and torture risk.

6.  On 30 November 2015, the applicant filed a Form 86 in HCAL 233/2015 for leave to apply for judicial review of the decisions of both the Director and the Board on the grounds that they failed to take proper account of his evidence that his life was in danger and that he would be subjected to serious ill‑treatment if returned to Sri Lanka, and that their decisions were Wednesbury unreasonable.

7.  On 30 January 2018, his leave application was refused by D’Almada Remedios J upon finding that none of the proposed grounds was reasonably arguable, that there was no error of law or procedural unfairness by the Director or the Board in their decisions, and that there was no realistic prospect of success in the intended challenge.[6]

8.  Meanwhile, on 28 December 2016, the Director invited the applicant to submit additional facts which might be relevant to his non‑refoulement claim based on BOR 2 risk.  On 9 January 2017 the applicant responded with a letter in which he provided additional information regarding the sale of his land. 

9.  By a Notice of Further Decision dated 18 January 2017, the Director rejected the applicant’s non‑refoulement claim on BOR 2 risk, finding that the additional information failed to advance his case and that the facts of his claim did not engage BOR 2 risk.

10.  On 24 January 2017, the applicant filed an appeal to the Board against the further decision of the Director.  As the Board had, on the previous occasion, considered and determined the applicant’s appeal from the Director’s decision on BOR 3 risk, torture risk and persecution risk, and the grounds of appeal raised by the applicant in relation to BOR 2 risk were a repetition of his previous arguments, the Board proceeded to determine the appeal on the paper without a further oral hearing.  By its decision made on 29 September 2017, the Board found that the applicant had failed to establish his case of BOR 2 risk and dismissed his appeal.

Decision of the court below

11.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court (“RHC”) (Cap 4A), the applicant should apply for leave to apply for judicial review promptly and in any event within 3 months from the date when the grounds for application first arose.  That period of time expired on 29 December 2017.  The applicant only filed his Form 86 in HCAL 173/2018 on 6 February 2018, seeking leave to apply for judicial review of both the further decisions of the Director and the Board for dismissing his case under BOR 2 risk. He was over 5 weeks late. 

12.  The grounds for the applicant’s intended challenge were not stated in the Form 86 but in his supporting affirmation of the same date as follows:

(1) procedural impropriety in the Director’s and the Board’s failure to afford him the opportunity to present his case in an oral hearing;

(2) procedural impropriety in the failure of the Director to consider the new facts he submitted for his BOR 2 claim or to conduct any screening interview for his claim under BOR 2 risk, and in the failure on the part of the Board to make proper inquiry into the new facts in support of his claim under BOR 2 risk; and

(3) error/misdirection in law in the Board’s failure to give proper reasons for its decision and to apply high standards of fairness in assessing his claim under BOR 2 risk.

13.  The Judge heard the application on 8 May 2019.  By his decision dated 10 June 2020, the Judge refused to extend time for the application for leave to apply for judicial review and dismissed the leave application.  The reasons for the Judge’s decision were set out at [17]‑[23] of the Form CALL‑1 as follows:

“ 17. In the Applicant’s case, a delay of five weeks cannot be said to be insignificant or insubstantial, for which he explained that it was due to his application for legal aid and that he was waiting for further supporting documents from Sri Lanka, but documents which he only produced almost one year later on 20 March 2019 which appear to relate to the same issue over the sale of his land back in 2006, and which are dated respectively 16 November 2006, 5 January 2018 and 15 March 2018.

18. As it is clear that the first two documents could have been obtained well before the date when he filed his Form 86, while the third document was well after, and given the fact that the Applicant having made his non‑refoulement claim more than 10 years ago could have obtained these documents much earlier during all these years but somehow for no good reason did not until now, and in the absence of any documentary evidence of his application for legal aid, which even if true could have been made well within the three‑month period under the rule, I do not in the circumstances accept that he has provided any valid reason for his delay.

19. As for the merits of his intended application by reference to his proposed grounds,the first two can be considered together, as they were essentially about his complaint that the Director and the Board assessed and determined his claim under BOR 2 risk without holding any screening interview or oral hearing, but as has been held by the Court of Appeal,there is no absolute right to an oral hearing as the question must depend on the standards of fairness required, the nature of the decision‑making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: see ST v Betty Kwan [2014] 4 HKLRD 277.

20. As noted above, the Applicant did already have a screening interview, and with legal representation, before the Director in his earlier assessment of his claim under torture risk,BOR 3 risk and persecution risk, and also attended an oral hearing in his appeal before the Board, and on both occasion he was able to fully and properly present and articulate his claim based on issues arose from the sale of his land, and on his stated facts and in the light of the scope and threshold of a claim under BOR 2 risk, there is clearly no room for engaging the BOR 2 ground, as had been properly and rightly found by both the Director and the Board in their further decisions. As such I agree that no useful purpose would be served by a further screening interview or oral hearing, and that the decision of the Director and the Board not to do so did not amount to any procedural unfairness or breach of high standards of fairness.

21. Nor could the Applicant in my view advance his case any further under the BOR 2 risk ground which he would have put before the Director or the Board at an oral hearing,with or without those additional documents referred to above, even ignoring the fact that they do not appear to have been authenticated or notarized, or why they were not presented much earlier before the Director or the Board. As such these grounds are not reasonably arguable.

22. As for his complaint under Ground (3) that the Board failed to give proper reasons for his decision regarding his claim under BOR 2 risk or to apply high standards of fairness in assessing his such claim, the Applicant was factually incorrect, as the Board clearly did properly assess his claim under BOR 2 risk and gave its reasons for rejecting/dismissing his appeal on this ground as set out in §6‑8 of its further decision, and for the reasons already given above, I do not find any basis or merits in this complaint of the Applicant.

23. Accordingly I do not find any of the Applicant’s grounds reasonably arguable, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, nor do I 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.”

14.  On 15 June 2020, the applicant issued a summons seeking leave to appeal against the Judge’s decision.  The applicant was then within the 14‑day period under Order 53 rule 3(4) of the RHC to file an appeal, but on the basis of the law as then understood the Judge’s decision was regarded as interlocutory and leave was required for an appeal. 

15.  Following the Court of Final Appeal’s decision in H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 that an order refusing an extension of time and dismissing an application for leave to issue judicial review is appealable as of right, on 27 August 2020, the Judge granted an extension of time to the applicant to file his notice of appeal within 14 days from the date of his order.

Appeal to this Court

16.  On 4 September 2020, the applicant filed his Notice of Appeal against the Judge’s decision. He mistakenly stated that it is an appeal from the Judge’s decision dated 27 August 2020 (which was the decision to extend time for appeal) but we shall treat it as an appeal against the Judge’s substantive decision dated 10 June 2020.

17.  In the Notice of Appeal, the applicant stated the following:

“ I like to inform through this grounds that still I have problem in my country and (illegible) my refoulement interview and for petition teams. I was submit my supporting document proof to them. But the court never mention about that and they disregard all. Those are plausible document too and this present government misrule the county there are no right to minority people specially tamil speaking people I will explain all in my oral hearing and submit my all document.”

18.  In compliance with the court’s directions, the applicant lodged his written submissions on 11 May 2021.  In those submissions, however, he did not provide any meaningful grounds of appeal against the Judge’s decision but only complained about the current political situation of his country.  He stated that with the 20^th amendment to its constitution, Sri Lanka became more autocratic and being a member of the Tamil‑speaking minority, he would have no freedom and would be at risk of being arrested and imprisoned for speaking the truth. 

19.  The applicant attached 9 pages of documents relating to the issue over the sale of land back in 2006 to his written submissions.  Save for the Affidavit of Lins Rani Fernando dated 15 March 2018 and a letter from Divisional Secretariat — Mundel to Link Gold Paradise (PVT) Ltd dated 5 January 2018, the rest of the documents were not produced before the Judge at the lower court hearing.  The applicant has not obtained leave to adduce new evidence and this appeal is not the avenue to submit new evidence.  In any event, the documents produced all related to the land dispute and none of them suggested that the applicant would face any danger or risk of harm from LTTE if refouled.

20.  Without the leave of the court, the applicant lodged further written submissions on 31 May 2021 in which he repeated his complaint that the Director and the Board disregarded the documents produced by him and he indicated that he would produce some new documents at the oral hearing before this Court.  He also stated that he did not have money to engage a lawyer and is suffering from ill health.

21.  At the hearing before this court, the applicant added that the government in his home country had confiscated his land and that he wished to go back to deal with it but he wished to stay in Hong Kong until the problems causing danger to him had been resolved.

Legal principles

22.  In assessing the merits of the appeal, we have borne in mind the legal principles set out by this Court in 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 purposes 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.  Although 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 matters 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 of 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 will 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 his decision 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 will 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.  An appellate court should not examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

Discussion

23.  The applicant did not in his Notice of Appeal or written submissions raise any discernible grounds of appeal.  Nor did he identify any specific errors in the Judge’s decision.  On this basis alone this appeal is bound to fail.

24.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection under BOR 2 risk for similar reasons to those for rejecting his claim based on BOR 3 risk, torture risk and persecution risk as set out in the Board’s previous decision in 2015.  The reasons were essentially that the applicant had failed to substantiate his claim on the applicable grounds and that his asserted risks were neither foreseeable nor real, and were based on assertions and speculation.  Such findings are within the province of the Board, and cannot be interfered with by the court unless they are vitiated on public law grounds.  The applicant has failed before both D’Almada Remedios J and the Judge to make out any such valid grounds.  He has failed to raise any valid ground of appeal against the Judge’s decision.

25.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  He applied the relevant legal principles correctly and was plainly right to refuse to extend time for judicial review and to refuse leave. 

Order

26.  For the above reasons, this appeal is dismissed.