RE WIJESIRI GUNAWARDANA NANDANIE

CACV 202/2021

[2021] HKCA 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 202 OF 2021

(ON APPEAL FROM HCAL NO 1053 OF 2018)

____________________

____________________

_________________

J U D G M E N T

_________________

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

Introduction

1.  On 23 April 2021, Deputy High Court Judge Bruno Chan (“the Judge”)[1] 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 5 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 2 March 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 29 April 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is a Sri Lankan national.  She last arrived in Hong Kong on 4 February 2016 and was employed as a domestic helper until her contract was prematurely terminated on 10 May 2016.  She did not depart and overstayed the period permitted.  On 8 June 2016 she surrendered to the Immigration Department.  She lodged her non‑refoulement claim on 8 July 2016. 

4.  The applicant’s claim was based on the fear that, if she returned to Sri Lanka, she would be harmed or even killed by her ex‑husband who repeatedly and violently assaulted and raped her, and/or by a loan shark for defaulting on her loan.  She also claimed that she would be harmed by the people in her village, due to her conversion from Buddhism to Christianity.  The factual background was summarized at paragraphs 9 to 25 of the Board’s decision.

5.  By notice of decision dated 2 March 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 March 2018, during which the applicant gave evidence and answered questions from the Board.  The Board found that her claims were not credible, due to the vagueness and paucity of details of significant parts of her claim as well as implausible inconsistencies in her evidence. 

7.  As a result, the Board did not accept that the applicant was at risk of harm from her ex‑husband or the loan shark, or due to her conversion to Christianity.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that reasonable state protection was available.  The Board dismissed the appeal on 5 June 2018 on all the applicable grounds.

Decision of the court below

8.  On 8 June 2018, the applicant filed her application for leave to apply for judicial review of the Board’s decision.  Her Form 86 simply stated that she would still have “life problem” if she returned to her country and that her life would become dangerous and uncertain because her ex‑husband had connections with gangsters and police.  In her affirmation in support, the applicant deposed that she could not obtain supporting documents because her family hated her for converting to Christianity and would not help her.  She also reiterated her claim that her husband would harm or kill her if she were to return to Sri Lanka. However, she did not identify any proper or specific grounds for judicial review of the Board’s decision.

9.  Following a hearing on 15 December 2020 which the applicant attended in person before the Judge, on 23 April 2021 the Judge gave his decision refusing to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9]–[12] of the decision as follows:

“ 9. 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.

10. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52–132 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

12. 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

10.  On 29 April 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, she reiterated her fears that her ex‑husband and the loan shark would harm her and that her life would be in danger if she were to return to her country.  She also stated that the loan shark has connections to the police and the ruling party in Sri Lanka and that they can locate her easily anywhere in the country if she returns.

11.  On 21 June 2021, the applicant submitted a letter by way of supplementary notice of appeal saying that if she returned to Sri Lanka her life would be in danger because her ex‑husband would try to kill her.  Because of his connections, the police would not take action against him.  She also stated that her family were angry with her for having converted to Christianity, and she needed time to ask her friends to get her documents for submitting to the court, but she did not explain what the documents were or how they would assist her.

12.  The applicant lodged her written submissions for the appeal on 7 and 16 July 2021, in which she noted that she was not legally represented because she did not have income or work in Hong Kong and could not afford a lawyer.

13.  In her submissions, the applicant reiterated her claim that her husband tortured her in the past and that he would do the same thing again or kill her if she were to return to her country.  She also stated that she had no family or friends left in her country to assist her to obtain documents from her church.  She reiterated that the people in her village were angry with her for converting to Christianity.  She stated that she would try her best to obtain her documents and wished to explain all in her oral hearing.  However, the applicant did not identify any specific errors made by the Board or the Judge either in her Notice of Appeal or written submissions.

14.  At the hearing of the appeal on 30 August 2021, the applicant did not add anything of substance to what she had already stated in writing.

15.  The legal principles which this Court has adopted in dealing with appeals of non‑refoulement cases are well established: 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 will 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 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 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 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 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 the appeal were a fresh application for judicial review.

16.  As mentioned earlier, the applicant did not in her Notice of Appeal or submissions identify any specific errors in the Judge’s decision or any other specific grounds for reversing the Judge’s decision.  For this reason alone, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its adverse finding as to the applicant’s credibility.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that reasonable 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. 

18.  Having considered the materials before us, we are of the view that the Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

19.  For these reasons, this appeal is dismissed.