RE PARUSSALLA GAMARALALAGE THANUJA DARSHANI AMARAPALI

CAMP 518/2021

[2022] HKCA 1698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 518 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2833 OF 2018)

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J U D G M E N T

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

1.  On 2 June 2021, DHCJ To (“Judge To”) refused to grant leave to the applicant to apply for judicial review concerning her non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  She filed a summons in the Court of First Instance on 23 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by DHCJ Suffiad (“Judge Suffiad”) on 3 November 2021. 

3.  On 15 November 2021, the applicant filed a summons in CAMP 518/2021 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 15 November 2021, the applicant lodged her written submissions on 29 November 2021. 

5.  Under Order 59 r.14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

6.  The applicant is a Sri Lanka national. She came to Hong Kong on 13 January 2005 as a visitor but over-stayed since 13 February 2005.  She was arrested by the police on 23 August 2012.  On 22 December 2012, she made a torture claim under Part VIIC of the Immigration Ordinance (Cap.115) alleging that if refouled, she will be harmed or killed by her ex-boyfriend Janaka (“J”) as she refused to marry him.  The factual background of this case was succinctly summarised by the Judge at [7] – [16] of the JR Decision ([2021] HKCFI 1581).

7.  On 30 September 2013, the Director of Immigration (“the Director”) rejected her torture claim.  She appealed the Director’s decision (“Director’s 1^st decision”) to the Torture Claims Appeal/Non-Refoulement Claims Petition Office (“the Board”).  Her appeal was dismissed on 14 January 2014.

8.  In the meantime, on 9 October 2013, the applicant made her non-refoulement claim.  She filed a supplementary claim form dated 14 December 2016 for non-refoulement protection on all applicable grounds other than torture risk.  A further screening interview was conducted on 7 February 2017.

9.  By a Notice of Decision dated 17 February 2017, the Director decided against the applicant’s claim (“Director’s 2^nd decision”).  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2] and the persecution risk[3]. 

10.  The applicant appealed the Director’s 2^nd decision to the Board.  At the Board’s hearing on 14 September 2018, the applicant was represented by Duty Lawyer and the Director was represented by Government Counsel.  

11.  By its decision dated 16 November 2018, the Board dismissed the appeal and confirmed the Director’s 2^nd decision. The Board set out its analysis of the applicant’s evidence in detail at [51] to [90] and for the reasons set out at [91] to [99], the Board found the applicant’s evidence regarding the claimed past incidents and threats as incredible and unreliable.  The Board did not accept the applicant was harassed, threatened, raped, forced to marry J or forced to leave with him or that she was otherwise harmed by J.  The Board also found it inherently improbable that some 14 years after the applicant had refused to marry J, he still had an adverse interest in her.  Relevant country of origin information (“COI”) suggested state protection is available and internal relocation a viable option to avoid harm from J.  As such, the Board found that the applicant had failed to prove her claim of ill-treatment and threat and that there was no factual basis to support her claim for non-refoulement on any of the applicable grounds. 

Application for leave to start judicial review

12.  On 11 December 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  She did not provide any ground for relief in the Form or in her supporting affirmation.

The JR Decision

13.  The applicant attended an oral hearing on 17 May 2021.  After due consideration of the decisions of the Director and the Board, Judge To refused leave for judicial review for reasons set out in [20] - [23] of the JR Decision:

“20.  The Applicant has not advanced any grounds of application for judicial review.  At the hearing, attempts were made to solicit from her any possible grounds for the application.  All that she could say was that she disagreed with the Board’s findings that she could return to Sri Lanka because her problem is still there; that she has given birth to a daughter now 19 months old and that she would be in danger if returned to Sri Lanka.  She produced a letter allegedly from the administrator in her village certifying that she is subject to life threats by an underworld gang member who is searching for her and it is very dangerous for her to return.

21.  In essence, the Applicant is challenging the findings of facts of the Board under the guise of judicial review and adduce new hearsay evidence from the administrator in her village.  The new evidence was general in nature and lacks specifics.   Quite apart from the doubtful probative value which may be attached to the letter, it adds nothing new to the Applicant’s case.

22.  In a further attempt to investigate any possible ground for judicial review, the Applicant was asked if she was free to present her case to the Board.  She confirmed that she was and was not prevented from addressing the Board.  She had no complaint about the proceedings before the Board.  There was no procedural unfairness.

23.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration^[4].  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational. The Applicant’s claims were not reasonable arguable.  There was no realistic prospect of success in the intended judicial review.”

Application for extension of time to appeal the JR Decision

14.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  She filed a summons in the Court of First Instance on 23 June 2021 for an extension of time to appeal.  That was dismissed by DHCJ Suffiad on 3 November 2021.  Hence, the Summons to this court. 

Discussion

15.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

16.  As for (1), the applicant was late by 7 days between the deadline for filing her appeal against the JR Decision and the summons filed in the Court of First Instance.  Her delay was not substantial.

17.  As for (2), the reasons for the delay, the applicant explained in a handwritten letter to the Court (received by the High Court on 7 July 2021) that the delay was due to the fact that her baby had a running nose and was not feeling well and that she has no legal knowledge and no money to engage a lawyer.  We are not satisfied that the applicant’s explanation is a good reason for her delay, though not substantial.

18.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision and the Judge did not find any error in the decision of the Board.  

19.  In the Summons, supporting affirmation and written submission filed in this Court, the applicant failed to provide any valid grounds for her intended appeal against the JR Decision save for saying that her life will be in danger if she were to return to her home country as J is still looking for her.  She further claimed that J caused many problems to her family and so stressed her mother that she died from a heart problem on 1 November 2021.  The death certificate of her mother was exhibited in her supporting affirmation and attached to her written submissions.

20.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court would only examine the decision of the judge in light of the grounds advanced by the applicant.  As no viable ground is put forward to reverse the JR Decision, the appeal should be dismissed, 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]. 

21.  Further, it is clear from the Board’s decision that after careful analysis of the applicant’s evidence, her claim was rejected on the issue of credibility as her evidence was inconsistent and implausible, and the Board was not satisfied that she had been assaulted, raped or had received death threats from J.  Even if J were still be interested in her after 14 years (which the Board doubted), in any event, the applicant may relocate to other parts of Sri Lanka to avoid him.   It is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  We do not see any in this case.

22.  We are satisfied that DHCJ To had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.   

23.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 15 November 2021.