ABEYSINGHE ARACHCHIGE MANJLA CHANDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 75/2024, [2024] HKCA 658

On Appeal From [2024] HKCFI 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2024

(ON APPEAL FROM HCAL NO 1338 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of the Deputy High Court Judge K W Lung (“the Judge”) dated 22 February 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 April 2019, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 17 October 2012 and 16 June 2017.

BACKGROUND

2.  The Applicant is a national of Sri Lanka. He arrived in Hong Kong on 9 July 2002 as a visitor and was permitted to remain until 9 August 2002. He overstayed and was arrested by the police nearly eight years and nine months later, on 23 May 2011. He then lodged a torture claim[1] on 25 May 2011, which was rejected by the Director on 17 October 2012. With the introduction of the Unified Screening Mechanism in March 2014, he lodged a non-refoulement claim on 1 March 2014, which was assessed on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, he would be harmed or killed by members of a political party known as the People’s Alliance (“PA”) because he was a member of a rival political party known as the “Janatha Vimukthi Peramuna” (“JVP”). Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 16 June 2017 (“the Director’s Further Decision”), the Director rejected the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decisions to the Board. On 11 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§8-10 of the CALL-1 Form, as follows:

“[8] The [Applicant] appealed the Director’s Decision to the Board, which included his appeal against the Director’s decision on 17 October 2012 in respect of his torture claim. On 12 February 2019, the Board conducted an oral hearing for his appeal, during which he was legally represented via the Duty Lawyer Service and gave evidence before the Board [4].

[9] In essence, the Board rejected the [Applicant]’s claim due to his vague and unreliable evidence, and further held there was no substantial fear under any of the available grounds of non-refoulement protection [5.1]. His evidence depicting the police offering no assistance was viewed as mere assertion as he was unable to recall any details of the police during the material time [5.2]. Moreover, his claim of mental torture was dubious as it was some 8.5 years due to his fear of the PA [5.3], and the assault (the only physically one) was some 17 years ago [5.5]. Lastly, the [Applicant]’s claim that it was initially six to seven members of the PA seeking to harm him, was changed to “astronomical proportions” as he deposed at the oral hearing that the police and gangsters would also kill him [5.17]. In light of these findings, the Board held there was nothing reliable in support of the [Applicant]’s claim and dismissed his appeal accordingly.

[10] In an addendum, the Board further considered the [Applicant]’s claim under each of the applicable grounds of non-refoulement protection [8] – [18].”

THE JUDGE’S DECISION

5.  On 20 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely stated that he was not satisfied with the Board’s Decision and produced a copy of that decision. He repeated his claimed fear of harm if he was to return to Sri Lanka because he had been a supporter of the JVP for a long time and his enemies were still the ruling party.

6.  On 22 February 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[13] 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…

[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[16] The Board had, for the reasons given in paragraph 9, rejected the [Applicant]’s evidence in support of [his] claim.

[17] The ground raised by the [Applicant] are not valid to challenge the Board’s Decision.

[18] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

7.  In his Notice of Appeal filed on 1 March 2024, the Applicant stated the following:

“I am writing this grounds regarding my judicial review application was dismissed by High Court without any oral hearing. Therefore I appeal to explain my problem to Honourable Judge and I request the oral hearing.” [sic]

8.  Pursuant to the directions given by the Registrar of Civil Appeals on 21 May 2024, the Applicant was required to lodge his written submissions on or before 18 June 2024. The Applicant belatedly lodged written submissions in support of his appeal on 19 June 2024. In his 2-page submissions, he repeated his fear of harm from his enemies in his home country as they were powerful and connected with gangsters and the police. He attached two letters (with English translation) respectively dated 3 May 2024 and 3 June 2024 which, according to the Applicant, were written by the President of the JVP and the village head in his local area to show that his problem still existed in his home country. He also complained that the documents he submitted during the assessment of his non-refoulement claim had all been disregarded.

9.  At the hearing of the present appeal, the Applicant had nothing to add beyond saying that the threats to him still existed in his home country.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

11.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  The Applicant’s complaint that his application for leave to apply for judicial review was dismissed without any oral hearing has no merit. Since the Applicant did not request for an oral hearing of his application for leave to apply for judicial review in the Form 86, the Judge was entitled, in the exercise of his discretion, to determine the leave application on paper without an oral hearing pursuant to Order 53, r 3(3) of the Rules of the High Court, Cap 4A. In view of the fact that no proper ground of judicial review was disclosed in either the Form 86 or the Applicant’s supporting affirmation for his leave application, the Judge’s decision to determine the application on paper cannot be faulted.

13.  The two letters attached by the Applicant to his written submissions are new evidence. The Applicant did not make any formal application for leave to adduce new evidence, but made an oral application at the hearing of the appeal for the admission of the two letters. To justify the admission of new evidence, the Applicant has to satisfy the three conditions established in Ladd v Marshall [1954] 1 WLR[5] (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)). We do not consider that the first Ladd v Marshall condition is satisfied. Although the 2 letters are dated after the date of the Judge’s decision, the Applicant has not filed any affidavit/affirmation evidence to explain (i) when the alleged threats against the Applicant’s family members referred to in those letters took place, (ii) when the Applicant came to learn of those threats，(iii) the circumstances in which the authors came to write and send those letters, or (iv) when the Applicant took steps to obtain those letters. We also do not consider that the second Ladd v Marshall condition is satisfied, bearing in mind that the Board held against the Applicant essentially because his evidence was considered to be vague and unreliable. Finally, we do not consider that there is any, or any sufficient, exceptional circumstance to justify exercising our residual discretion to admit the new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions. In all, we do not consider that the Applicant should be permitted to rely on the two letters in the present appeal.

14.  The Applicant’s complaint in his written submissions that the documents he submitted during the assessment of his non-refoulement claim had been disregarded is a new point which was not raised below. The Applicant is not entitled to raise this new ground as a ground of appeal against the Judge’s decision. In any event, the complaint has no substance. It is clear that the Director considered the documents he submitted in assessing his non-refoulement claim (see the Director’s Further Decision at §§4-14). Further, the Director’s Further Decision has been overtaken by the Board’s Decision. The Board examined the Applicant’s claim afresh, and its decision is, in principle, amendable to judicial review. It is also apparent from the Board’s Decision that the Adjudicator had considered the documents submitted by the Applicant before coming to his decision.

15.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

16.  The Applicant’s appeal against the Order has no merits and is dismissed.