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CACV 340/2021
[2021] HKCA 1534
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 340 OF 2021
(ON APPEAL FROM HCAL 2981 OF 2018)
________________________
| RE |
DISSANAYAKE MUDIYANSELAGE
SIRIYA DISSANAYAKE |
Applicant |
________________________
Before: Hon Au JA and Lisa Wong J in Court
Date of Hearing: 12 October 2021
Date of Judgment: 20 October 2021
____________________
JUDGMENT
____________________
Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by Dissanayake Mudiyanselage Siriya Dissanayake against the order made by Deputy High Court Judge P Li (“Judge”) on 29 June 2021 (“Judge’s Decision”), refusing her leave to apply for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 14 December 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 22 March 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Sri Lanka now aged about 56, is a fear of being harmed or even killed by (1) the father of the intended fiancée (“Sameera”) of her maternal cousin (“Jayantha”), due to her involvement in the dispute between Jayantha and Sameera’s father over the proposed marriage between Jayantha and Sameera.
3. The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraphs 13 to 17 of the Board’s Decision and in gist in [3] to [12] of the Judge’s Decision embodied in the Form CALL-1 dated 29 June 2021, [2021] HKCFI 1810 (“Form CALL-1”).
4. Briefly:
(1) Jayantha lived with the applicant and her mother since a young age and was treated as an adopted son of the applicant’s family.
(2) Jayantha and Sameera, a Muslim girl, went to the same secondary school. They started dating in about 2010. They did so secretly because Sameera came from a superior social class. Their courtship was known only to the applicant.
(3) In 2012, Jayantha decided to marry Sameera.
(4) Sameera’s father was rich and powerful. He spent a lot of money supporting politicians and was also connected with gangsters.
(5) He was against the proposed marriage between Jayantha and Sameera and had vowed to kill Jayantha if he tried to marry Sameera.
(6) There were 4 confrontations in the summer of 2013.
(7) In the first incident, Jayantha and Sameera’s father physically fought.
(8) On the second occasion, some unknown men believed to be Sameera’s father’s underlings tried to throw stones at the applicant’s house. When they confronted Sameera’s father on the following day, he instructed his underlings to assault Jaynatha and the applicant.
(9) In the third incident, the applicant was attacked and injured at her residence by Sameera’s brother and 2 unknown men. She was hospitalised for 5 days. The police took a statement from her upon a report by the nurses but she could not obtain copies of either the nurses’ report or her statement.
(10) The last attack took place 5 days after the applicant’s discharge from hospital. Sameera’s brother and the same 2 unknown men came again to beat up the applicant and Jayantha. In defence, Jayantha hit Sameera’s brother on the head. He died from the injury. Afterwards, some underlings of Sameera’s father tried to burn down the applicant’s house.
(11) To avoid Sameera’s father and his underlings, Jayantha fled to Dubai while the applicant came to Hong Kong.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant arrived in Hong Kong on 24 October 2013 to work as a foreign domestic helper. Her contract was prematurely terminated after about 2½ months. On 23 January 2014, she returned to Sri Lanka but was too afraid to go home. She came to Hong Kong on 14 April 2014 again to work as a foreign domestic helper. Her contract was terminated prematurely on 30 June 2014. She was allowed to stay as a visitor until 11 August 2014. Instead of leaving upon the expiry of her visa, the applicant overstayed since 12 August 2014. She surrendered to the Immigration Department on 17 March 2015. She raised the NRF Claim by written representations dated 21 May 2015 and 18 June 2015.
Director’s Decision
6. After considering the information provided by the applicant in her Non-refoulement Claim Form dated 22 February 2018 and at the screening interview on 12 March 2018, at which times the applicant was represented by the Duty Lawyer Service, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. In short, the Director assessed the risk of harm faced by the applicant to be low and further found that reasonable state protection and internal relocation options would be available to negate or reduce any perceived risk.
Appeal to Board and Board’s Decision
7. The applicant appealed against the Director’s Decision to the Board.
8. After a rehearing of the NRF Claim on 20 November 2018, at which the applicant testified and answered the Board’s question through a suitable interpreter, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. In summary,the Board was not satisfied that the applicant would face a real chance of harm of any kind in Sri Lanka in the reasonably foreseeable future for any of the reasons she had claimed. More particularly, the Board did not accept that Jayantha was ever in a relationship with a Muslim girl; that the applicant or Jayantha were ever harmed or targeted for harm as a result of the claimed relationship or for any other reason; that the alleged attacks on the applicant or Jayantha ever took place; or that they had been involved in any incident resulting in the death of anyone in Sri Lanka.
Application for leave for judicial review and Judge’s Decision
9. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2981/2018 on 27 December 2018, the applicant contended she still faces life threat. In the supporting affirmation of the same date, the applicant expressed dissatisfaction with the Board’s Decision as she still has life threat from her enemies and was injured and hospitalised.
10. The applicant did not ask for an oral hearing. After considering the written material before him, the Judge dismissed the application for leave for judicial review for the reasons set out in [18] to [20] of the Form CALL-1:
“18. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director.
19. The applicant had not pointed out any specific error in the decisions of the TCAB.
20. The evidence of the applicant was full of contradictions. I agree with the findings of the adjudicator. In my judgment, there is no error of law or procedure. I agree with her decision. It is rational.”
Appeal to Court of Appeal - grounds of appeal and submission
11. By the notice of appeal filed herein on 7 July 2021, the applicant repeated that she still has problems from her enemies; that her house was burnt down; and that her cousin left for Colombo as her enemies was trying to kill and harm him.
12. On 16 August 2021, the applicant lodged written submission, by which she claimed to have difficulties in obtaining documents from Sri Lanka and asked for more time to do so because (1) she had no legal representation or anyone else in Sri Lanka to help her; (2) she did not know how to obtain the documents herself; and (3) government offices were closed because of the COVID-19 pandemic.
13. The applicant appeared in person at the hearing of the appeal on 12 October 2021. She had nothing to add to her notice of appeal and written submission.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
14. 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, the risk of harm that the applicant would face in his/her country of origin, the availability of state protection and the viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. 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 [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
15. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
16. As summarised above, the NRF Claim failed on the facts at both stages of the unified screening mechanism. The questions whether the applicant would be at risk of life or torture if she is refouled to Sri Lanka and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director). The applicant’s much-repeated bare assertion that she would face harm if she should return to Sri Lanka is inconsistent with the findings of both the Director and the Board.
17. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality committed by the Board in making such adverse findings against the applicant. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed. Nor did she in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave for judicial review was plainly wrong. We cannot discern any either.
18. In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
19. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Thomas Au) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the |
| |
Court of First Instance |
The applicant acted and appeared in person.
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] [1954] 1 WLR 1489.
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