RE SUBASINGHE MANAGE DUSHANTHA KUMARA

CAMP 119/2019

[2020] HKCA 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 564/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 February 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 8 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 9 September 2016 and 7 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka.  He entered Hong Kong on 16 July 2013 and was permitted to remain until 30 July 2013.  He overstayed and surrendered to the authorities on 13 August 2013.  He lodged a non-refoulement claim on 19 May 2014. 

3.  The applicant’s claim was based on fear of harm by his creditors.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 form.

4.  By a Notice of Decision dated 9 September 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 7 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 June 2017, the Board dismissed the appeal on 8 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  In the Board’s Decision, the Board found that there was not a real risk that the applicant would be subject to any of the proscribed harm upon his return.  The Board was also satisfied at [81] that state protection would be available for the applicant and at [96] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 29 August 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 29 August 2017, the applicant deposed that:

“ I like to inform you that the petition team (security bureau) taken my decision was unsatisfactory for me in my USM case, because I have still life threaten for me from my enemy in my country if I go this moment my life become uncertain, and I need to remain in Hong Kong until settle my problem from my enemy. I will submit my supporting document in future. I submit Exhibit (1) one page.”

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [16] of the CALL-1 form:

“13.     As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them of which the court will not usurp their role as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

14.     Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Sri Lanka, they were entitled to come to their conclusion that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.     In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.     For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

12.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 13 February 2019.

Application for extension of time to appeal and grounds for appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 21 March 2019, the applicant sought leave to appeal out of time, some three weeks late.  His application was dismissed by DHCJ Bruno Chan on 5 June 2019.

14.  By a summons dated 10 June 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and the affirmation of the same date, he said that the judge did not give him any oral hearing to explain his situation and to provide supporting documents, and that it would be dangerous for him to return.

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the Court.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

17.  The applicant did not provide any explanation for his delay in bringing the intended appeal but we nonetheless go on to consider the merits of the intended appeal.

18.  The bare assertion by the applicant that it is unsafe for him to return is not a viable ground of appeal.  As this court has repeatedly emphasised, an application for judicial review is not a further appeal, and still less is an appeal against a refusal of leave to bring judicial review proceedings an opportunity to revisit factual issues which are within the purview of the Director and the Board.  It is necessary for an intending applicant to demonstrate some public law errors on the part of the Board, and on appeal to this court, to point to some errors on the part of the judge below.

19.  The only ground of appeal mentioned is that the applicant was not given an oral hearing before the judge (presumably for the judicial review leave application). We note that there was no oral hearing because the applicant had not requested for one in the Form 86 or the supporting affirmation (see Rules of High Court Order 53 rule 3(3)).  In any event, the applicant did not identify any argument or document he wished to submit for the judicial review leave application in either the documents filed for the intended appeal or the hearing before the judge on 26 April 2019 for the leave to appeal application.  Insofar as it was intended to refer to the absence of oral hearing of the application for leave to appeal out of time, it is for the court to determine whether an oral hearing is called for in the circumstances of the case.  There is no apparent reason here why this application could not have been dealt with on paper in the court below.  This ground is therefore without merit.

20.  We therefore do not see any prospect of success in the intended appeal, and will not grant extension of time for a hopeless appeal.  The summons of 10 June 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.