RE NAMBUKARA TANTRILAGE AND ANOTHER

CACV 282/2019

[2019] HKCA 1134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2019

(ON APPEAL FROM HCAL 563/2017)

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REASONS FOR JUDGMENT

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Hon Coleman J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as stated in Form CALL-1 dated 13 June 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1500. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 July 2017 (“the Board’s Decision”) dismissing the appeal against the decisions of the Director of Immigration (“the Director”) dated 29 January 2016 (“the Director’s First Decision”) and 7 June 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  At the end of the hearing, we dismissed the appeal and indicated we would hand down our reasons.  This is what we now do.

Background

4.  The applicant is a national of Sri Lanka.  He entered Hong Kong on 24 September 2005 and was permitted to remain as a visitor till 26 September 2005, but overstayed.  He made an asylum application to the UNHCR, which was subsequently closed on 23 February 2006.  Subsequently, he was arrested on 18 March 2009 by the police and made a torture claim application under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Due to his own failure to file the torture claim form within time, his torture claim was dismissed by the Director and the Board.  On 21 May 2015, he lodged another non-refoulement claim.

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 11-12 of the Director’s First Decision, and paragraphs 44-61 of the Board’s Decision.

6.  Briefly stated, the applicant claimed that if he were to return to Sri Lanka, he would be harmed or killed by police officers.  The applicant claimed that his father, an active member of Janatha Vimukthi Peramuna (“JVP”), disappeared when he was two years old.  He says the police refused to investigate at the time.  When he was around 10 years old, his mother again reported his father’s disappearance to the police. A week later, around 5-10 people raided his house with weapons.  Shortly after that, the mother disappeared.  The applicant and his sisters were then taken to live in their aunt’s place.  When the applicant was 16 years old, he decided to go to the police to find out about the reason for his father’s disappearance.  Afterwards, some policemen in plainclothes assaulted the applicant and threatened that if he were to persist in acting against the government, he would end up like his parents.  The policemen also detained him and his second elder sister and laid charges against them for acting against the government.  When he was granted bail, he fled the country.

The Director’s Decisions and the Board’s Decision

7.  In the Director’s First Decision, the Director refused to revisit the torture risk and assessed the BOR 3 risk^[1] and the persecution risk^[2].  The Director’s Second Decision assessed the BOR 2 risk^[3].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 12 June 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board did not find the applicant to be a credible witness although it attached credence to the facts that his father had been politically active and had lent financial support to the JVP.  Nevertheless, the Board refused to accept that the applicant was assaulted or threatened by the police officers (paragraphs 73-93 of the Board’s Decision).  In any event, the Board found that the applicant could resettle in any part of Sri Lanka (paragraph 110 of the Board’s Decision).

The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 29 August 2017 seeking leave to apply for judicial review against the Board’s Decision.  The applicant did not advance any ground of review in his Form 86 but merely repeated his claim in the supporting affirmation filed on the same date.  Further, the applicant did not request an oral hearing before the Deputy Judge.

11.  After considering all the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 15-18 of the Deputy Judge’s Decision:

“15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 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 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 Re Litoun Mounsy [2018] HKCA 537

16. In the present case the applicant’s claim was rejected by the adjudicator based on the facts and evidence available and for the detailed analysis and reasoning set out in paragraphs 73 – 109 of the Board’s decision, including the fact that the applicant failed to make his claim after having been in Hong Kong for almost four year before being arrested of which the adjudicator was entitled to take into account as damaging his credibility under section 37ZD of Part VIIC of the Immigration Ordinance, as well as those objective COI referred to and considered by the adjudicator in paragraphs 62 – 72 as to the current situations in Sri Lanka, in which as already noted the applicant did not identify any legal error or procedural unfairness either in his Form or his affirmation.

17. In the premises and having proceeded to consider the Board’s decision as well as the decisions of the Director 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.

18. In the premises and for these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

12.  The applicant filed the Notice of Appeal dated 25 June 2019 to appeal the Deputy Judge’s Decision.  He set out the following grounds of appeal:

“I would like to say that torture claims appeal board and director of immigration rejected my refoulement case. but still I have problem in my country if I go my life become danger I need the oral hearing to explain my situation to court fron of honourable judges”. [sic]

13.  Pursuant to the directions from Master Au-Yeung dated 18 July 2019, the applicant filed             his written submissions on 24 July 2019 to the court.  In the written submissions, the applicant merely repeated his claim and stated that since he did not have legal representation and had no means to afford a lawyer, he had made attempts to explain his situations.  He also attached the document titled “Request for the Conformation of Disappearance”.  Other than that, and the statement that he would explain his position at the oral hearing, the applicant failed to identify any errors in the Deputy Judge’s Decision.

14.  It might be noted that the written submissions also mentioned that the applicant’s mother was scared that what had happened to his father might happen to him, though that is difficult to reconcile with the suggestion that the mother had also disappeared.

Discussion

15.  Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.

16.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established.  See: Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Re Masoom Parvez [2018] HKCA 163.

17.  Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy 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].

18.  Thus, it is incumbent for the applicant to identify the errors in the Deputy Judge’s Decision.  However, as mentioned, and other than the new point about the interpreter which was not even raised before the Deputy Judge, the applicant simply repeated his claim.  At the hearing he repeated that he could not go back as his life would be in danger.  These are not viable grounds.

19.  In relation to the argument on the lack of legal representation, such argument was not presented before the Deputy Judge.  As a result, it could not be a viable ground to demonstrate any errors in the Deputy Judge’s Decision: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

20.  At the appeal hearing, the applicant sought to raise a new point that he had not had a proper interpreter for his language when before the Director and the Board.  He said he had been provided with a Muslim interpreter, whereas he speaks Sinhalese.  When it was pointed out to the applicant by the court that he had in fact been provided with a Sinhalese interpreter, he said he could not remember the occasions but there had been two when he had a Muslim interpreter.  This new point had not been raised at the hearing before the Deputy Judge, and indeed the applicant had not even asked for an oral hearing before him at which he might have raised it.  We place no weight on this point, as it could not be a viable ground to demonstrate any errors in the Deputy Judge’s Decision.  Other than this, the applicant confirmed at the hearing that he had nothing else to add.

21.  The Deputy Judge in his decision had carefully examined the Board’s Decision and concluded that its decision did not commit any public law errors, in that: it did not make any errors of law, was not tainted with any procedural unfairness, and was not Wednesbury unreasonable; and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim.

22.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

23.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismissed the appeal.