RE HANGILI GEDARA IMALKA PRIYADARSHANIE

CAMP 358/2022

[2022] HKCA 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 358 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 935 OF 2019)

____________

____________

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application by the applicant for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 7 June 2022[1] refusing to grant her leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 14 March 2019. In that decision, the Board dismissed, inter alia, the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 August 2017 rejecting her non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka born in 1971 and a Sinhalese Buddhist. She last arrived in Hong Kong on 12 April 2005, and was permitted to stay as a visitor until 12 May 2005. She did not depart then, and had overstayed since. She made claim for protection based on torture risk by written signification on 19 March 2007. On 17 April 2007, she surrendered to the Immigration Department. She gave birth to a daughter on 22 January 2009 in Hong Kong with a man called Lokurumage Hemantha Gunaratne Silva (“Hemantha”) and made a claim for non-refoulement protection on her behalf by written signification on 18 August 2016. She and Hemantha were married in Hong Kong on 3 May 2009, but they were subsequently divorced in 2020.

3.  In brief, their claims were based on the fear that if they returned to Sri Lanka, they would be harmed by (1) underworld gangsters who bore a grudge against the applicant’s first husband who was a policeman in Sri Lanka and had offended those gangsters; (2) the applicant’s first husband, who resented her for divorcing him; (3) the applicant’s second husband, Hemantha, who had assaulted her in Hong Kong and had returned to Sri Lanka in 2015; (4) Buddhists all over Sri Lanka, because of her affair with an Indian Muslim in Hong Kong; and (5) the applicant’s illegitimate son, who was born to her when she was 16 years old and resented her for abandoning him.

4.  The applicant’s claim and her daughter’s claim were assessed by the Director with reference to all the applicable risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 30 August 2017, the Director rejected their claims.

5.  They appealed to the Board against the decision of the Director. The hearing of the appeal was held on 13 November and 7 December 2018, at which the applicant gave evidence and answered questions from the Board. After careful consideration as set out in its written decision, the Board found that the applicant had told a long and complicated account padded with allegations, but the major incidents in it did not stand up to scrutiny. In relation to the risk from the gangsters and her first husband, the Board did not find the applicant’s account credible. As to the risk from Hemantha, the Board accepted that the relationship had turned sour at some stage but found that the applicant’s account was grossly exaggerated in order to contrive a claim by embellishing and magnifying the acrimony between her and her second husband. The Board found that the allegation of risk from the Buddhists was vague in the extreme, built on hearsay and bare allegations, and inconsistent with country of origin information. The Board was not satisfied that the applicant had an illegitimate son as alleged. In its decision the Board also pointed out various other inconsistent and unsatisfactory aspects of the applicant’s evidence. The Board concluded that the applicant was “a poor witness”, whose evidence was “contradictory and disingenuous”, and who was “prepared to tailor her evidence whenever and however she thought would suit her”. The Board was not prepared to give credence to any material facts in her evidence. There was therefore no factual basis to support any of the claimed risks.

6.  Further, the Board found that even on the basis of the applicant’s account, there was no real risk shown of the requisite harm; that there was systemic sufficiency of state protection in Sri Lanka; and that internal relocation was a viable option for her and her daughter even on the applicant’s account.

7.  In the result, in its decision dated 14 March 2019, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

8.  On 8 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. In the accompanying affirmation, as summarised by the Judge, the applicant said in gist that she had been tortured and beaten by her ex-husband in Hong Kong, and that if she were in Sri Lanka, she would have been killed by him without anybody knowing as there were many unknown deaths in Sri Lanka. Her daughter was born in Hong Kong and speaks Cantonese and English only. The applicant wants to stay with her daughter in Hong Kong.

9.  The Judge dealt with the application as one made by the applicant alone. Based on consideration of the documents, the Judge issued his decision on 7 June 2022, refusing to grant the applicant leave to apply for judicial review. The reasons were set out at [18] – [23] of the Form CALL‑1 as follows:

“ 18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

21. The Board has given reasons in support of its Decision. Those grounds above are not valid reasons to challenge the Board’s Decision.

22. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

10.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but only took out a summons on 28 July 2022 to seek an extension of time to appeal against the decision of the Judge. In the summons she stated that she was unable to lodge an appeal in time because she became sick and received treatment from a hospital, and was still not feeling well. In her supporting affirmation, she stated that her judicial review application was refused by the High Court because she was unable to submit proper documents in time.

11.  After considering the application on the basis of the documents alone, the Judge gave his decision in writing on 30 August 2022.[6] The Judge stated that the court did not rule against her application for leave for judicial review on the ground that she failed to submit documents. The Judge noted that the applicant had not shown in what respect the Board is said to have erred in its decision. Accordingly, the Judge refused to extend time for appeal.

The renewed application before this Court

12.  By summons filed on 20 September 2022, the applicant applies to this court for extension of time to appeal against the decision of the Judge refusing to grant her leave for judicial review. In the summons she stated that she was not satisfied with the Judge’s decision which was reached without any oral hearing, that there was merit in her statement and that she needed an oral hearing to explain her situation to the court.

13.  In her written submissions the applicant stated that if she goes back to Sri Lanka her life will become uncertain because Hemantha, who had tortured her in Hong Kong, is in Sri Lanka now and he has threatened to kill her if she returns. She attached (i) a Magistracy’s witness summons to her to give evidence at certain proceedings against Hemantha for criminal intimidation of her and criminal damage of her phone; (ii) the applicant’s statement as to arrangements for the daughter filed in the matrimonial cause between the applicant and Hemantha; (iii) an order of the District Court dated 5 August 2020 granting a decree nisi dissolving the marriage between her and Hemantha on the ground that he had behaved in such a way that the applicant could not reasonably be expected to live with him; and (iv) a certificate showing that the decree nisi was made absolute on 23 October 2020.

14.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

15.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. The delay here was substantial, and no documentary evidence was submitted to explain the delay, but we are prepared to look at the prospects of success in the intended appeal to see if an extension of time should be given.

16.  Having considered the available materials, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. In the present case, after hearing from her and asking her questions, the Board found the applicant’s evidence lacking in credibility. The Board eventually came to the conclusion that the applicant’s account was not credible, that even on her own case there was no sufficient risk to justify non-refoulement protection, that state protection was available, and that internal relocation was a viable option. These are conclusions that the Board, as the primary decision-maker, was entitled to come to, for the detailed reasons it had given in its decision. It has to be borne in mind that judicial review is not a further avenue of appeal. On judicial review the court does not re-hear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law errors, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has failed to advance any such public law grounds; nor can we see any from the materials before us.

17.  The role of this court as the Court of Appeal is not to re-hear the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal against the Court of First Instance’s decision based on the grounds of appeal advanced. The applicant has failed to specify any real ground of appeal or show how the Judge has erred in refusing to extend time and refusing to grant leave for judicial review.

18.  The documents attached to the applicant’s written submissions do not assist. The witness summons (dated 2013) simply shows that the applicant had accused Hemantha of intimidation before, but this was placed before the Board and, as the Board noted, Hemantha was acquitted after trial when the Magistrate noted contradictions and doubts in the applicant’s evidence.[7] The divorce documents simply evidence her divorce from Hemantha after the Board’s decision. They are documents not shown to the Board, and do not in any way suggest the Board fell into public law error.

19.  Having considered all the materials available, we share the Judge’s view that there is no reasonably arguable ground for the applicant’s intended application for judicial review. As such we do not see any prospect of success in the intended appeal. The applicant’s summons is accordingly dismissed.