RE RATHNAYAKE MUDIYANSELAGE YASOMENIKE

> CAMP 392/2022, [2023] HKCA 949

On Appeal from [2022] HKCFI 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 392 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 586 OF 2019)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Madam Justice Campbell-Moffat J (“the Judge”) dated 9 March 2022[1] which dismissed her application for leave to apply for judicial review.

2.  The applicant has filed an affirmation and also put in a written submission to support her application.    

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal against the decisions of the Director of Immigration (“the Director”) which rejected her non-refoulement claim.

5.  The applicant is a national of Sri Lanka aged 58.  She came to Hong Kong on 24 November 2005 and was given permission to remain to work as a foreign domestic helper.  After her contract was prematurely terminated in April 2006, she overstayed and was arrested by the police on 15 July 2009.  She lodged a torture claim^[2] on 17 July 2009, which was rejected by the Director on 9 January 2013.  Her appeal against the Director’s decision was rejected on 9 April 2013.  Upon the implementation of the Unified Screening Mechanism, the applicant made a non-refoulement claim on 17 April 2013, which was based on her fear of being harmed or killed by (1) her ex-boyfriend (“Chandrarathne”) for refusing to lend him money; and (2) a money lender (“Sarath”) and his people for her failure to repay a loan.  The background and details of the applicant’s claim were set out in the decision of the Director 1^st decision at [9] to [47].  We will not repeat them.     

6.  By two decisions dated 29 August 2016 and 25 July 2017, the Director rejected the applicant’s claim.  The first decision covered the BOR 3 risk[3] and persecution risk[4] grounds and the further decision related to the BOR 2 risk^[5] ground.  There was no assessment under the torture risk ground in view of the rejection of her previous torture claim.

7.  The applicant appealed the Director’s decisions to the Board.  The Board[6] heard the appeal on 1 December 2017, during which the applicant elected to give evidence and answered questions put by the Board.  By its decision dated 10 January 2019, the Board dismissed the appeal.  The Board, while accepting that the applicant had an outstanding debt in Sri Lanka, considered the risk of harm from Sarath to be very low.  The Board found the evidence showed that Sarath was more concerned with the recovering the loan than harming the applicant.  As for the applicant’s claim about Chandrarathne, the Board did not accept the applicant had a relationship with this man having regard to the discrepancies between the applicant’s evidence before the Board and her account given to the Director.  The Board also found the risk of harm from Chandrarathne, if any, to be extremely low.  The Board concluded that the applicant failed to establish her entitlement to non-refoulement protection under the applicable grounds.

8.  On 1 March 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  She did not provide any grounds for relief, other than stating in her supporting affirmation that she was not satisfied with the Board’s decision.

9.  The judge considered the application on paper as the applicant did not request an oral hearing.  By a Form CALL-1 dated 9 March 2022, the Judge refused the application and gave her reasons in [10] to [13] as follows: 

“Leave to apply for judicial review

10. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to her non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator, it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

11. There were no grounds of review. The applicant seeks a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

10.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made. 

11.  By a summons filed on 6 May 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge held a hearing on 4 August 2022 and on the same date refused the application[7].

12.  On 28 September 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of her leave application.

13.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

14.  The applicant was over five weeks out of time when she made the application for extension of time. This is a substantial delay.  In the summons filed in the court below and in the present application, she stated she did not receive any correspondence from the court.  We note from the court record that the Judge’s decision together with the sealed court order were mailed to the address provided by the applicant, and they had not been returned by the Post Office.  In the absence of elaboration from the applicant, including when and how did she learn of the Judge’s decision, we do not consider the applicant had satisfactorily explained her delay.  In the circumstance, she has to demonstrate that her intended appeal enjoys a real prospect of success.

15.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  Relevantly, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In the present case, the applicant did not provide any grounds for her intended appeal in either the summons or the supporting affirmation.  

17.  In the written submission, the applicant stated she would be in danger in her home country as her enemies were powerful, wealthy and influential, and they would pay the authority to help them.  She also asserted there were many errors in the decisions against her claim and appeal, so she wanted to go to Court of Appeal.

18.  For the reasons set out below, we are of the view that this renewed application is devoid of merits:

(1)  The applicant has not identified any basis on which this Court may interfere with the Judge’s decision. While she asserted there were many errors in the decisions made against her, she did not elaborate or provide particulars of the errors.

(2)  Similarly, the applicant has not pointed to any error of law, irrationality or procedural irregularity in the Board’s decision and reasoning.  There is thus no basis on which the court can review the decision of the Board.

(3)  Evaluation of evidence and assessment of risk are matters for the Board, who is the primary decision maker.  In the absence of any basis for the court to interfere with the Board’s decision and in view of the Board’s findings, the applicant’s assertion that she would face danger if refouled to Sri Lanka cannot stand.

(4)  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.

19.  As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 28 September 2022.