RE OTUNU PATTALE MULACHARIGE NILUKA K.J.

CACV 574/2020

[2021] HKCA 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 574 OF 2020

(ON APPEAL FROM HCAL NO. 2877 OF 2018)

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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. This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1 The applicant is a national of Sri Lanka.  She entered into Hong Kong on 9 July 2012 and took up employment as a domestic helper. The applicant’s contract was prematurely terminated and she overstayed. She was convicted and incarcerated with theft. After her release, she raised her non-refoulement claim.  

2.2 The basis of the applicant’s claim is that she would be harmed or killed or sexually assaulted by a politician by the name of Silva and his subordinates. Silva was in a political position of power and the applicant claims she cannot be protected by the Sri Lanka authorities.

3)  The Director’s Decision and Further Decision

3.1 The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 23 August 2016.  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 7 July 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’). After a hearing held on 6 October 2017, the applicant’s claim was dismissed by the Board on 3 January 2018.

4.2 The Board held that there was no evidence to suggest that if the applicant returned to Sri Lanka she would be unable to live anywhere else or that Silva would look for her. It was incredible that the applicant has never reported any incident to the police when she claimed that she had been raped, came into contact with Silva’s subordinates or being sexually assaulted by her friend’s husband. It was held that the dispute between Silva and the applicant was private in nature. Nothing indicated that it had any correlation with the Sri Lanka authorities.

5)  Decision of the Judge

5.1 The applicant filed her Form 86 out of time, seeking for leave for judicial review on 14 December 2018. In her supporting affirmation, she again stated that Silva was powerful and she fears of returning to Sri Lanka.

5.2 On 14 May 2020, the Judge held that although the Board accepted the facts of the applicant’s case, the Board did not accept on the facts that there is a real risk of harm to the applicant if she was to be refouled. The applicant failed to show any reasonable prospect of success.

6)  Grounds of appeal

6.1 Doing the best that we could read from the applicant’s notice of appeal, she stated that it was dangerous for her to return. She stated that she belonged to a different political party. She stated that one man in the country appoints all judges and security officers. She complained that she was not able to submit documents in the hearing below.

6.2 Doing the best that we could read from the applicant’s written submissions, the applicant simply stated that there are still problems in her home country.

7)  Our view

7.1 We are of the view that 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.