RE KANDAGODA GAMAGE AMILA MADURANGA

CACV 247/2024, [2024] HKCA 973

On Appeal From [2024] HKCFI 1345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 247 OF 2024

(ON APPEAL FROM HCAL NO. 1520 OF 2019)

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J U D G M E N T

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Hon Cheung JA (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 KW Lung (‘the Judge’)  of 4 June 2024 in which he refused to grant leave to him to apply for judicial review.

2)  Background

2.  The applicant is a national of Sri Lanka.  He arrived in Hong Kong in August 2005 and was granted visitor status for 30 days but he overstayed since September 2005[1].　 He then made a torture claim in November 2005 which was rejected in October 2011[2]. 　In that same month, the applicant filed a petition to the Torture Claims Appeal Board (‘the Board’), which was rejected in November 2011[3]. 　In July 2016, the applicant made a non-refoulement claim (excluding torture claim)  to the Immigration Department[4].

3.  The basis of the applicant’s claim is that he would be harmed or killed by members of the United National Party because he had hurt one of their members[5].  The applicant belonged to a rival party.  He also claimed that the Sri Lankan Army was after him because they suspected him to belong to another insurgent group.

4.  The background facts have been summarized in the decision of the Judge at [4] to [13].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 27 October 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against persecution except torture, as that has been previously rejected[6] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 10 November 2017.  After a hearing held on 17 January 2019, the Board dismissed the applicant’s appeal on 8 April 2019 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the decision of the Judge at [16]-[20].

5)  Decision of the Judge

8.  The applicant filed his Form 86 and affirmation but no ground for seeking relief was provided.

9.  The Judge held that the applicant raised no viable reason to challenge the Board’s finding in relation to internal relocation.  The applicant also failed to show that he has any realistic prospect of success in the intended judicial review[7].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated that :

‘ Dear Sir/Madam

I am writing this grounds regarding explain my problem. I have my supporting document to submit in my oral hearing focus I had not opportunity to submit in my judicial review because new got hearing’

11.  The applicant’s written submission can be summarized as follows :

(1)  He has no income and does not have legal representation;

(2)  He still has problem in his country, and his documents are disregarded by the decision-makers;

(3)  His enemies damaged the family house and the police did not help;

(4)  Hong Kong is a safe place for him to live; and

(5)  He seeks to produce a police report dated 12 June 2017 and other documents dated 16 November 2016 and 17 October 2017 which stated his life was at risk with death threats.

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  His grounds of appeal and written submission consist of bare allegations without particulars or specifics.  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].

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Judge has made any error of law. 

14.  In respect of the applicant’s written submissions,

(1)  His claim that was not legally represented is factually incorrect as he previously had legal representation when he was completing a supplementary claim form: Board’s Decision at [3].

(2)  The three documents that the applicant wishes to submit on appeal had been previously submitted to the Director and the Board.  They had considered these documents but nonetheless came to the view that his non-refoulement claim should be rejected.  The assessment of evidence is within the province of the Director and the Board.  In light of their decision we see no reason why we should take a different view of the matter.

15.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.