RE KOLAMBAGE PRATHBHATH PURNAKA

CACV 206/2020

[2020] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2020

(ON APPEAL FROM HCAL 1666/2018)

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J U D G M E N T

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

Introduction

1.  On 9 June 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 5 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 19 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Sri Lankan national.  He arrived in Hong Kong on 26 October 2003 and was permitted to stay as a visitor until 25 November 2003.  He did not depart from Hong Kong and was arrested by police on 13 June 2006.  The applicant raised a non-refoulement claim on 16 August 2006. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Kumara (“K”), who belonged to a rival political party, the then People’s Alliance Party (“PA”), as the applicant had previously assaulted him on instructions from Suresh (“S”), an organizer for the then United National Party (“UNP”).  The factual background was succinctly summarized by the Judge in [9] – [10] of the Form CALL-1 ([2020] HKCFI 1102).

5.  By Notice of Decision dated 5 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 and 23 January 2018, during which the applicant was legally represented by counsel.  

7.  The Board found that the applicant’s evidence was credible as to the core of his claim but such evidence was not entirely reliable as to some of the details which are germane to the assessment of risk of harm.  The Board found that some of the claimant’s allegations as to the threats and/or violence against himself or his family to be implausible and there were exaggerations on his part to bolster his non-refoulement claims.

8.  After discounting such exaggerations and with the lapse of time, the Board considered that the risk of harm to applicant was remote or speculative in the event of refoulement.  Therefore, the Board dismissed the applicant’s appeal on 27 July 2018 on all the applicable grounds.

Decision of the court below

9.  On 17 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant’s grounds for relief were summarized at [17] of the Judge’s decision as follows:

“ 17.  The applicant relied upon the grounds in support of his application below.

(1)  The Adjudicator had misdirected himself as to the conclusions he had arrived at, especially relating to the incident with K. The Adjudicator was not entitled to reach the decision that it was not credible that K was attacked in the manner he had described in the evidence. Under this heading, there are other issues:

i.  That he was not aware of K’s political stance should not undermine his credibility.

ii.  The evidence of the attack on K only came from him, the Adjudicator should not disbelieve his evidence.

(2)  The Adjudicator was speculative in evaluating the evidence. Below are the reasons.

i.  The speculation that the killing would not be in a public place had not taken into account that he was only a young man without much wisdom.

ii.  The Adjudicator was speculative when he considered the killing should not be in public place and that K was a gangster.

iii.  The Adjudicator was speculative to say that he had a gun but did not use it.”

10.  After a hearing on 10 October 2019 at which the applicant attended in person, on 9 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [18] – [22] of the Form CALL-1 ([2020] HKCFI 1102, HCAL 1666/2018) as follows:

“ 18.  The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and the Board. In any event, he was legally represented.

19.  Grounds (1) and (2) relate to the handling of the evidence by the Adjudicator. The applicant considered that if the Adjudicator might take a different view or interpretation of the situation of the background facts, he should adopt the scenario which favoured his claim. Having considered the parts as referred to by the applicant, it seems quite clear that the Adjudicator had given his reasons why he came to those conclusions on the facts of the case. The fact that only the applicant had given evidence does not mean that the Adjudicator had no alternative but to believe his evidence. The Adjudicator had to apply his reasoning and common sense appropriate to the factual situations to the evidence and came to his own conclusion as to whether he believed the applicant’s evidence.

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 Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review by the court. However, there is no evidence to show that the Board erred in the finding of the facts or the application of the laws to the case.

22.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Appeal to this Court

11.  On 19 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  The applicant’s grounds of appeal are that:

(1)  the Judge failed to consider that the Board’s assessment did not comply with the high standards of fairness;

(2)  the Judge accepted the Board’s conclusion without addressing whether it was open to the Board to conclude that the applicant exaggerated events in the absence of evidence that he had done so, and given that the Board accepted the applicant’s evidence as to the incident and subsequent killings;

(3)  the Judge failed to consider whether the factual background of the applicant’s case is different and distinct from cases cited by the Judge; and

(4)  fairness requires the Judge to consider the applicant’s case against the facts peculiar to the applicant’s case to see whether the Board has abided by the principles of fairness.

12.  On the same day that he filed his Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

13.  Pursuant to this Court’s directions of 5 October 2020, the applicant duly lodged his written submissions on appeal on 27 October 2020, in which he advanced the following challenges to the Board’s assessment:

(1)  the Board erred by speculating in several respects and failing to assess the related evidence rationally in finding that the applicant exaggerated in some aspects of his evidence;

(2)  the Board erred by determining that internal relocation is viable; this is speculation on the Board’s part and not viable in practice as Sri Lanka is a small country with a unified police force and unified army, not a large federal country with separate police and armed forces; and

(3)  the Board failed to apply a proper standard of justice to the facts.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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;

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong; and

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In light of the above principles, this Court should focus on the grounds of appeal pertaining to the Judge’s decision.

16.  Grounds (1) and (2) related to the Judge’s rejection of the applicant’s challenge to the Board’s findings.  In this connection, it should be borne in mind that in a judicial review, the court is not performing the role as if it was hearing the case in an appellate jurisdiction.  In examining if the Board’s assessment complied with the high standard of fairness, the court focused on the procedural fairness of the process.

17.  In the present case, the applicant was represented by a lawyer appointed by the Duty Lawyer Scheme at the hearing (which lasted for 2 days) before the Board.  As one can see from the Board’s decision, very extensive submissions were advanced by very experienced lawyer on his behalf and the Board had addressed those arguments.  There is simply no basis for suggesting that the high standard of fairness was not observed in the hearing before the Board.  Ground (1) has no merit.

18.  The grounds advanced by the applicant before the Judge were arguments focusing on the Board’s assessment of the evidence.  We have to reiterate that in the absence of errors of law or procedural unfairness or irrationality in the decision of the Board, the court cannot intervene in the Board’s findings of fact or assessment of evidence. 

19.  In a very careful decision, the Board meticulously considered the evidence and explained at great length its findings.  Whilst it accepted the core part of the applicant’s case in terms of his involvement in the attack of K on the instruction of S, it did not accept that the instruction was for the killing of K.  Nor did the Board accept that K was a gangster.  Further, and more pertinently, the Board did not accept that K was still looking for him in revenge.  At paragraphs 133, 136 and 137, the Board’s finding was summarized as follows:

“ 133.  I accepted above the Appellant worked for Mr S and the UNP in the past. I accepted the Appellant was involved in the attack on Mr K, but that attack was a violent assault, not a murder attempt. As noted above, the Appellant resiled from earlier submissions he feared harm from the Sri Lankan authorities due to the attack on Mr K. Rather, he fears reprisals from Mr K and the influence of Mr FN and Mr F. As part of that, the Appellant also fears the Grama Seveka/Grama Niladhari system is a means by which Mr K, Mr F and Mr FN could locate the Appellant. I assess too the Appellant’s claims he may be arrested at the airport below in relation to his being a returned failed applicant for protection.

…

136.  I have regard to the changed political environment in Sri Lanka, and in particular that the UNP and SLFP (as successor party to the PA) are coalition partners in the current national parliament. And I have had regard to the passage of time of over 15 years since the attack on Mr K occurred. I also have regard to my findings above that the Appellant was able to remain in Sri Lanka from August 2002 to October 2003 and that despite the abductions and deaths of Mr R and Mr G, the Appellant was not detected by Mr K and/or supporters of the PA or Mr F/Mr FN, and on that basis there I found the Appellant had exaggerated the level of interest to the PA as he claims – particularly as I rejected the attack on Mr K was an attempted murder. I am mindful too that while Mr F and Mr FN remain elected officials, the Appellant has no knowledge of the whereabouts of Mr K. For those reasons, I consider there to be only a remote or speculative risk and therefore not a real risk that Mr K, Mr F, Mr FN and or supporters of SLFP (as successor party to the PA) will target the Appellant for harm if the Appellant is refouled to Sri Lanka.

137.  For the same reasons, I consider there to be only a remote or speculative risk and therefore not a real risk Mr K, Mr F, Mr FN and/or supporters of SLFP (as successor party to the PA) will make a police complaint against the Appellant for the attack on Mr K in 2002.  It follows that there is not a real risk the Appellant will face prosecution or in turn a conviction for the attack on Mr K.”

20.  The Board reviewed the evidence in details at paragraphs 23 to 36 of its decision.  The above findings were reached after a very comprehensive analysis of the evidence at paragraphs 105 to 132.  We cannot accept the applicant’s submission[5] that the Board did not apply its mind to the evidence.  Nor do we find his criticism on the Board’s treatment of hearsay evidence and his own evidence[6] to be justified.  The Board simply performed its role in the weighing of evidence when it accepted part and rejected part of the evidence of the applicant.

21.  In essence, the applicant challenged the Board’s assessment on two bases:

(a)  The Board should accept the entirety of his evidence in the absence of other evidence; and

(b)  The Board’s reasons for rejecting parts of his evidence or holding that to be exaggerations were speculative.

22.  The Judge rejected these contentions.  First, he held that it was open to the Board to accept only part of the evidence of the applicant.  Second, he held that the Board was entitled to reject part of the applicant’s evidence based on its own assessment using common sense and other factual circumstances in the case.  In other words, the Board did not commit any error of law in so doing.

23.  We agree.  It is open to a tribunal of fact to reject part of the evidence of a witness even though there is no contradictory evidence.  The Board is not bound to accept all the evidence of an applicant.

24.  As regards the assessment of the Board set out at paragraphs 105 to 132, we do not agree with the applicant that such assessment was based on speculations.  Given the court’s role in judicial review, the proper test is whether such assessment is irrational or Wednesbury unreasonable.  We have considered the reasoning of the Board in those paragraphs with anxious scrutiny.  The Board highlighted some aspects of the evidence of the applicant with which it had difficulties.  The difficulties pinpointed in those paragraphs are legitimate and rational in light of the particular circumstances in the case.

25.  Though it is true that the participants of the attack (G and R) were killed and at paragraph 126 the Board appeared to accept such killings were attributable to the attack on K, those occurred in 2002 and 2003 respectively.  S himself was killed in a bomb blast in 2006 but there was no evidence to link that with the attack on K.

26.  The Board took the death of G, R and S into account at paragraph 126.  It did so in light of the COI and observed that such killings were consistent with the prevalence of political violence which existed between the UNP and the PA in the past.  Since 2015, the UNP and SLFP (the successor party to the PA) have become coalition partners: see paragraph 76.  In light of that, the Board took the view at paragraph 136 that the risk of such violent political conflicts between those in these two parties had subsided at the present time.  At the same time, the Board proceeded on the basis that the applicant did subjectively harbour fear for revenge from K when he escaped from Sri Lanka.

27.  In our judgment, this is a view that the Board on the evidence before it was entitled to take.  The Judge was correct in holding that there was no ground for intervention by way of judicial review.      

28.  The Board did not rest its decision on internal relocation.  Thus, we do not understand the applicant’s submission directed against purported error of the Board in that respect.

29.  Thus, we reject Ground (2).

30.  Turning to Grounds (3) and (4), the cases cited by the Judge was for the purpose of highlighting the relevant legal principles, not for comparison with the facts of the applicant’s claim.  There is no question of the Judge applying the principles without regard to the particular facts of the case.

31.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

32.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.