SUDUHAKURALAGE CHAMINDA SRIYAKANTHA SENARATH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CAMP 167/2020

[2021] HKCA 1153

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 167 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 764 OF 2017)

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J U D G M E N T

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

1.  On 15 May 2020, Campbell‑Moffat J dismissed the applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 17 July 2020, the applicant filed a summons for extension of time to appeal against that decision, as the 14-day period to file his appeal ended on 29 May 2020.  The application was dismissed by the judge on 26 August 2020[2].

3.  On 14 September 2020, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge dated 15 May 2020.  On 28 December 2020, the Registrar of Civil Appeals directed the applicant to lodge written submissions on or before 13 January 2021.  He did not comply with the direction. The Registrar made an unless order on 29 January 2021 requiring the applicant to comply with the direction by 11 February 2021, failing which he shall be debarred from lodging any written submissions and shall be deemed to be relying only on the representations made in the summons and supporting affirmation of 14 September 2020.  As the applicant has not complied with the unless order to date, we shall determine this application on the basis of the documents filed in the court. 

4.  The applicant is a national of Sri Lanka.  He is 49 years old.  He had previously entered Hong Kong illegally on 21 November 2006 and raised a torture claim on 31 October 2007.  He later withdrew his torture claim indicating that his problem was solved and was repatriated to Sri Lanka on 31 May 2012. 

5.  He entered Hong Kong illegally again on 7 August 2013.  He surrendered to the Immigration Department on 19 August 2013 and requested for non-refoulement protection.  He raised a torture claim on 4 September 2013 on the basis that he is in fear of ill treatment by the Liberation Tigers of Tamil Eelam and the Sri Lankan government if he is to be returned to Sri Lanka.  His torture claim was later treated as a non‑refoulement claim under the unified screening mechanism. 

The Director’s decisions

6.  By a Notice of Decision dated 14 January 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].

7.  By a Notice of Further Decision dated 1 December 2016, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non‑refoulement claim. 

The Board’s decision

8.  The applicant appealed against the Director’s decisions to the Board.  He attended the hearing before the Board on 20 December 2016.  The Board found the applicant’s story claiming that he was a former soldier or deserter of the Sir Lanka Army unbelievable.  The documents submitted by the applicant do not support his case and his evidence was inconsistent. The Board further held that there is no credible evidence to show that the applicant would face risk of harm in his country.  Therefore, the appeal was dismissed by the Board on 26 September 2017.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 13 October 2017 for leave to apply for judicial review against the decision of the Board.  He only stated in his supporting affirmation that he has life threatening problems in his country and requested the court to reconsider his case and give him solution, without stating any specific grounds for his intended challenge against the Board’s decision.

The judge’s decision

10.  Campbell‑Moffat J considered the application on the papers as the applicant did not request for an oral hearing.  The judge considered that both the Director and the Board went about their functions in a wholly proper manner and there is no error of law or procedure or failure to adhere to a high standard of fairness throughout.  The judge concluded that there is no reasonably arguable basis in the applicant’s intended judicial review and dismissed the leave application on 15 May 2020.

Grounds of intended appeal

11.  The applicant reiterated in his supporting affirmation that his life has been threatened by his enemies who belong to the ruling party and can do harm to his life.  He did not put forward specific grounds of appeal against the decision of the judge in both his summons and affirmation.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 15 May 2020.  The applicant took out a summons at the court below on 17 July 2020.  He was late by seven weeks.

14.  The applicant explained to the court below that he did not receive the court’s decision and was only informed of the decision in June 2020[7]. He also submitted that he had then taken some time to take out the summons as he did not have the necessary fees or money for transportation.  Even if the court is minded to accept the applicant’s explanation for the delay, the court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

15.  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.  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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  In the present application, the applicant did not provide specific grounds of appeal.  In particular, he failed to demonstrate that the judge was wrong in refusing his leave application.  He also failed to adduce any evidence to refute the Board’s findings against him.

17.  As there is no prospect of success in his intended appeal, we refuse to extend time to appeal against the judge’s decision of 15 May 2020 and dismiss the summons filed on 14 September 2020.