SUDUHAKURALAGE CHAMINDA SRIYAKANTHA SENARATH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 167/2020

[2022] HKCA 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 167 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 764 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 13 August 2021 ([2021] HKCA 1153). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Campbell-Moffat J dated 15 May 2020 ([2020] HKCFI 832) refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 25 August 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 8 September 2021. Having considered his written submissions and the papers, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Sri Lanka. He had previously entered Hong Kong illegally on 21 November 2006 and raised a torture claim on 31 October 2007. He later withdrew his torture claim indicating that his problem was solved and was repatriated to Sri Lanka on 31 May 2012.

4.  He entered Hong Kong illegally again on 7 August 2013. He surrendered to the Immigration Department on 19 August 2013 and requested for non-refoulement protection. He raised a torture claim on 4 September 2013 on the basis that he is in fear of ill treatment by the Liberation Tigers of Tamil Eelam and the Sri Lankan government if he is to be returned to Sri Lanka. His torture claim was later treated as a non-refoulement claim under the unified screening mechanism.

5.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late by seven weeks. It was refused by the judge on 26 August 2020[1].

6.  The applicant renewed his application to the Court of Appeal on 14 September 2020. The application was dismissed by the Court of Appeal on 13 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

7.  The applicant stated his grounds of appeal in the Notice of Motion filed on 25 August 2021 which may be summarized as follows:

(1)  His application was rejected by the court on 13 August 2021 because he was unable to submit his new supporting document in time. Due to the covid-19 pandemic in his country, all government offices are closed and death rate is increasing.

(2)  He asked the court to give him time to obtain all documents because his life will be in danger if he goes back at this time. The ruling party in his country never cares about human life.

8.  In his written submissions, he made the following further contentions:

(1)  He clarified that the inconsistency of his names in his passport and army ID is caused by the fact that one of them contains his mother’s surname while his name in the passport contains his father’s surname, which is normal in Sri Lanka.

(2)  He never told any lie to the court.

9.  He also attached copies of documents and photos purportedly showing that he had previously served in the army in Sri Lanka.

Analysis and disposition

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.  The applicant had not previously indicated to the Court of Appeal in his last application that he would need to obtain new evidence to submit to the court. In any event, the Board had held in its decision back in 2017, well before the Covid-19 pandemic, that the documents submitted by the applicant do not support his case and his evidence was inconsistent. If there are any supporting documents which are deemed necessary to rebut the Board’s findings, the applicant would not have waited for a few years until this late stage to try to obtain them.

12.  In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Besides, he has not identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 25 August 2021.