RE WALGAMPOLAGE SIRINUWAN OSADA BUDDHIKA PERERA

CACV 627/2020

[2021] HKCA 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 627 OF 2020

(ON APPEAL FROM HCAL NO. 858 OF 2017)

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

1)  The appeal

1.1 This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 13 June 2019 in which he refused to grant leave to him to apply for judicial review.

1.2 This appeal was scheduled to be heard on 4 June 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 1 April 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly, the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1 The applicant is a national of Sri Lanka.  He departed Sri Lanka in August 2009. He sneaked into Hong Kong illegally in September 2009.  On 9 September 2009, he applied for non-refoulement protection.

2.2 The basis of the applicant’s claim is that he would be harmed or killed by people affiliated with a road work contractor who was killed by the applicant’s friend with a pistol. Since the applicant was there on the scene, he feared for his life.

2.3 The background facts have been summarized in the decision of the Judge at [2]-[6].

3)  The Director’s Decision and Further Decision

3.1 The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 21 August 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2 The Director decided against the Applicant’s right to life claim on 13 June 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

4.1 The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’). The Board dismissed the applicant’s appeal on 23 October 2017 (‘the Board’s Decision’).

4.2 The Board found that the applicant was not a credible witness. The applicant’s version of event was laced with inconsistencies, extraordinary coincidence and sheer luck. There was no state action. The applicant’s fear was more imagined than real. There was no genuine risk that the applicant would be subjected to torture if refouled.

5)  Decision of the Judge

5.1 The applicant filed his Form 86 but no grounds of review were mentioned. In his supporting affirmation, he merely repeated his claim that there was real risk of returning. He stated that his parents passed away and he will get their death certificates.  

5.2 The Judge held on 13 June 2019 that the Board’s decision was held based on the evidence provided. He held that he has considered the Board’s decision and the Director’s relevant decisions with anxious scrutiny and rigorous examination, and he did not find any error of law or procedural unfairness.

5.3 By summons of 8 July 2019, the applicant sought an extension of time to appeal before the Deputy Judge. The Judge held on 19 November 2020 that the applicant was granted extension of time to appeal within 14 days.

6)  Grounds of appeal

6. The applicant filed his notice of appeal within time. Doing the best we can to read from the applicant’s handwriting in his notice of appeal dated 30 November 2020, the applicant stated that he is receiving some form of medical treatment. He stated that he had some new documents to produce to the Court during his hearing, without exhibiting or explaining what they were. He believes that his life was still in danger.

7)  Our view

7.1 We are of the view that the above are all bare allegations without particulars or specifics.  The applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong  v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2 It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3 We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.