PONNAMPERUMA ARACHCHIGE DON SURANGA LANKAPRIYA v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 254/2018

[2018] HKCA 841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 254 OF 2018

(ON APPEAL FROM HCAL NO. 678 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

1)  Appeal from First Instance Judge

1.  This is an appeal against the decision of Campbell‑Moffat J given on 15 June 2018 in HCAL 678/2017 by which she refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 21 September 2017 (‘the Board’s Decision’).

2)   Background

2.1.   The applicant is a Sri Lanka national who entered into Hong Kong legally on 11 June 2005.  The applicant overstayed since 12 July 2005.  He was arrested by the Police on 3 January 2008.  He raised his torture claim on 8 January 2008.  He submitted his non-refoulement claim on 30 December 2013 and a Supplementary Claim on 15 September 2014.

2.2.  The applicant claims that his life would be in danger of being ill-treated, tortured or killed by members of a political party called Sri Lanka Freedom Party (‘SLFP’), if he was to return to Sri Lanka because they wanted to take revenge on him for an incident that took place in 2001, where members of the applicant’s political party harmed and injured a person alleged to be from SLFP.

2.3.  The applicant’s family have all along been affiliated to another political party, namely, the United National Party (‘UNP’) in Sri Lanka.  In 1997, members of SLFP clashed with members of UNP.  No threats towards the applicant was identified.

2.4.  In 2001, the UNP and SLFP members fought with armed tools.  One member of SLFP was injured.  From this point onwards, the applicant constantly received threats from SLFP towards him, or towards him through his family members.  The threats keep heading towards the applicant despite his relocation efforts.  The applicant alleged that from time to time, he would be assaulted by a group of people who he suspects are members of SLFP.  The applicant believes that the assaults were done because of the injured member of SLFP in 2001.  The applicant moved to Ela-Kanda, then to Doha between 2002 and 2005.  Upon his return to Sri Lanka after 2005, the applicant alleged that SLFP members continued to threaten him through his mother.  Eventually, the applicant arrived in Hong Kong with his father’s help.  He married a Filipina in Hong Kong and together they have two children. One was born last year in December 2017.

3)   The Director’s Decision and the Director’s Further Decision     

3.1.  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 30 July 2015 (‘the Director’s Decision’).  The Director’s Decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR’), as well as his other statutory and convention rights against torture and persecution.

3.2.  The Director decided against the applicant’s right to life claim on 13 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)   The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 13 August 2015.   After a hearing held on 15 August 2017, the Board dismissed the applicant’s appeal against the Director’s Decision on 21 September 2017 (‘Board’s Decision’).

5)   Decision of the Judge

5.1.  The applicant filed a Form 86 with supporting affirmation seeking leave for judicial review against the Board’s Decision on 26 September 2017.  He did not request an oral hearing.  The application before the Judge was dismissed on 15 June 2018 (‘Decision of the Judge’).

5.2.  The Judge decided the case as follows :

‘ Leave to apply for judicial review

 13. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

 Grounds of review

 14. There were no grounds of review as such. The Applicant stated in his affirmation dated 26 September 2017, that he had not been given enough time to explain his problem. The Applicant has had 13 years to explain his problem and has submitted voluminous documents in support of his case, not all of which were accepted as credible. The Applicant has not made out any procedural irregularity, unfairness or unreasonableness. I have, nevertheless, considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

 Conclusion

 15. I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavor with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

16.     In my judgment, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.’

6)  Notice of Appeal

6.  The applicant filed a Notice of Appeal to appeal against the Decision of the Judge.  The applicant stated in his Notice of Appeal the following :

‘ And further take notice that the grounds of this appeal are that

1. My previous appeal has been refused. If I go home, I cannot bring my family with me.

2. My first son is currently studying here and my second child is here as well. Both of them is under my care while my wife is at work.

3. For these reasons, I would like to appeal that my stay in Hong Kong will be reconsider. Attached here are the following documents. Marriage certificate and Birth Certificates.’

7)  Skeleton arguments

7.  The applicant’s skeleton arguments read as follows :

‘ List of Points:

1.  The statement given…states that I have 13 years to explain my problems.  I disagree.

2.  The Adjudicator said that he did not find there was a real chance that I would face any form of ill‑treatment if I were to return home.  I disagree.

3.  Since my family is here, I would like my stay in Hong Kong to be reconsidered.

- my children’s education

- family safety

(s.d. and dated)’

8)  Our view

8.1.  It is important to bear in mind that both the Director and the Board came to the finding that, given the passage of time, there is no real chance that the applicant will suffer ill‑treatment in the hands of SLFP if he is to be refouled to Sri Lanka.  His fear of harm is based on his own speculation.  This is essentially findings of fact which are exclusively within the province of the Director and Board.  There is nothing to indicate that such findings were wrong.  It was on this basis that the Judge decided that judicial review was not amendable.  The Judge’s comment that the applicant had 13 years to explain his problem and the voluminous documents that he had submitted was in response to his contention that he was not given sufficient time to explain his case.

8.2.  The applicant orally informed us that the political situation in Sri Lanka has recently changed.  It is now in a state of chaos with SLFP gaining more seats in the Parliament.  We were not provided with details of the current political situation in that country.  In any event, if this is only a recent development, it has no bearing on the decisions of the Director, the Board and the Judge who decided the case on the facts as presented before them.  The relief in such a situation is for the applicant to make a subsequent claim to the Director under section 37 ZO of the Immigration Ordinance (Cap. 115) on the ground of significant change of circumstances.  It is for the Director to decide whether the new development merits a reconsideration of his earlier decision.

8.3.  Albeit in a different context, the applicant’s allegation that he was unable to bring with him his wife and children back to Sri Lanka has already been dealt with by the Board at paragraphs 75 and 76 of the Board’s Decision.  In a similar fashion, the applicant cannot justify or provide any reason why if he was to be refouled, he cannot bring his family with him.  There is no evidence to suggest that the family would encounter anything more than normal social adjustments to life in a country outside Hong Kong.  The applicant has failed to show how the Board’s analysis was plainly wrong.

8.4.  The applicant has not provided any reasons that the Judge erred in law in any way.  The applicant simply stated that he disagreed with the judgments below, but provided no elaboration. It is trite that in the determination of an appeal, the Court of Appeal focuses on the decision of the Judge.  We would only reverse that decision if the applicant 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 : Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

8.5.  In our view, there are no reasonable arguable grounds for leave to be granted.  Accordingly, the appeal is dismissed.