RE DON AMARASINGHALAGE DON CHANDRA JANAKA

CACV 248/2024, [2024] HKCA 974

On Appeal From [2024] HKCFI 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 248 OF 2024

(ON APPEAL FROM HCAL NO. 1256 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 Bruno Chan (‘the Judge’)  of 6 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 entered Hong Kong in September 2000 as a visitor but he overstayed and was subsequently repatriated to Sri Lanka in April 2002.  In June 2006, the applicant was arrested in Hong Kong.  He claimed that he came back to Hong Kong in June 2002 by using a fake passport.  The applicant raised his torture claim in October 2006, which was refused in December 2012.  The applicant appealed and the Torture Claims Appeal Board (‘the Board’)  in April 2013 rejected the appeal of his torture claim.  In April 2018, the applicant applied for non-refoulement.  The applicant from 2014 to 2016 was charged with various criminal offences including possession of arms, drug trafficking, possession of offensive weapons, possession of drugs[1].

3.  The basis of the applicant’s claim is that he would be harmed or killed by members of an insurgent group, Janatha Vimukthi Peramuna (JVP).  The applicant was the driver and provided security for one of the leaders of the United National Party (UNP)  and he refused to provide information about his employer to JVP who tried to assassinate him.

4.  The background facts have been summarized in the decision of the Judge at [2] to [7].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 27 April 2018.  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[2] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 9 May 2018.  After a hearing held on 9 January 2019, the Board dismissed the applicant’s appeal on 28 March 2019 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the decision of the Judge at [11].

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 in the absence of any error of law or procedural unfairness, there is no reasonably arguable basis for the applicant’s intended challenge.

6)  Grounds of appeal

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

‘ Dear Sir/Madam

I am writing this grounds regarding my situation and still I have problem in my country I need the oral hearing to explain and I gave my all supporting document when my (sic)  at immigration too’

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

(1)  The applicant still has problem in his country and government officials there would not help him;

(2)  Only the rich and the people in power receive government protection in his home country;

(3)  He lost his evidential documents to prove his case;

(4)  There will be presidential election in his home country in September 2024 and it will become more dangerous for him to return;

(5)  There are many unknown killers and unknown deaths in his home country;

(6)  He asks the Court to save his life as he is getting old; and

(7)  He has no money to pay for lawyers.

12.  In Court, the applicant stated that he still has documents that he has not received and he asked for a chance to produce the documents.

7)  Our view

13.  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].

14.  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. 

15.  In respect of his intention to produce new documents, we have refused his application.  It is the duty of the applicant to have all documents ready for the appeal since the non-refoulement claim was lodged as early as 2018.

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