RE MALLIKA ARACHCHE THUSHARA

CAMP 68/2018

[2018] HKCA 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 68 OF 2018

(ON APPEAL FROM HCAL 483/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the Decision of Deputy High Court Judge Bruno Chan on 4 May 2018 refusing leave to the applicant to apply for judicial review. The intended application for judicial review was in respect of the decision of the Torture Claims Appeal Board dated 14 July 2017 dismissing his appeal against the decisions of the Director of Immigration dated 7 June 2016 and 6 June 2017 rejecting the applicant’s non-refoulement claims.

2.  Pursuant to the directions given by the Registrar of Civil Appeals, the applicant was required to lodge two sets of written submissions by 15 June 2018.  Instead of lodging written submissions as directed, the applicant sent a letter to the court on 13 June 2018 attaching a set of documents, which we shall discuss in due course.  No substantive submission was contained in the letter.

3.  Having reviewed the materials before us, we consider it appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Courts (Cap 4A).

Background

4.  The applicant is a national of Sri Lanka.  He arrived in Hong Kong in October 2004 and overstayed.   He was arrested by the police on 29 January 2008.  He lodged a torture claim by a written signification dated 6 February 2008, which was rejected by the director on 8 February 2013.  His appeal to the board was unsuccessful because of the late filing of the notice of appeal.  On 17 April 2013, the applicant’s legal representative lodged a non-refoulement claim, which was assessed on all applicable grounds (except the torture risk[1]) upon the commencement of the unified screening mechanism in March 2014.

5.  The applicant’s claim was based on the fear that, if he returned to Sri Lanka, he would be killed by two powerful and influential politicians in Sri Lanka, MY and LY, and a group of powerful criminal gangsters the Army Kaluwa group, who were said to be controlled by MY.  The fear was due to the close relationship between the applicant (and his family) and MS, a political rival of MY, who defeated MY in an election (the year of which the applicant could not remember). The applicant also asserted that his father had been jailed for being a supporter of the political party Janatha Vimukthi Peramuna (“JVP”), that his home was destroyed by bomb in 2001, and that his two uncles were killed by the Army Kaluwa group in 2000 and 2003 respectively.

6.  By a notice of decision dated 7 June 2016, the director rejected the applicant’s claim.  The director was not satisfied that there was substantial ground for believing that the perceived fear of harm from MY and LY, as well as the Army Kaluwa group, was real and foreseeable if he returned to Sri Lanka.  The director did not accept that the applicant had a close relationship with MS and could not have been the target of MY and the Army Kaluwa group.  The director also considered that, since the applicant’s family had ceased to be active in politics since 2003 or 2004, the enmity between the applicant’s family and MY would have dissipated due to the lapse of time.  The director considered it to be unlikely that prominent politicians such as MY and LY would harm or kill a low-tier supporter of MS because MS defeated MY in an election.  The director considered that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  As the applicant’s claim based on the torture risk had already been rejected, the director’s decision only covered the BOR 3 risk[2] and the persecution risk[3].

7.  By a notice of further decision dated 6 June 2017, the director also assessed the applicant’s claim in respect of the BOR 2 risk[4], and determined it against the applicant.

8.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 23 June 2017, the board dismissed the applicant’s appeal on 14 July 2017.  The board considered it appropriate to assess all applicable grounds of the applicant’s case, including the persecution risk, the BOR 2 risk, the BOR 3 risk, and the torture risk.  During the oral hearing, the applicant provided additional documents to the board.  The board indicated its willing was to accept that the applicant’s father had been jailed for supporting JVP and that the applicant’s home was attacked in 2001.  However, the board found that, since the applicant’s father had changed his political stance, there would no longer be any real risk of harm if the applicant returned to Sri Lanka.  The board was also willing to accept that the applicant’s home was destroyed during the 2001 election, but considered that the risk of harm would no longer be real due to the lapse of time.  Furthermore, given that there was no objective evidence in support of the existence of the Army Kaluwa group and that the threats received by the applicant were anonymous, the board did not consider the applicant’s claim in relation to the group, including the alleged murders of his two uncles, to be credible.  It was also not accepted that prominent politicians such as MY and LY would consider the applicant as their enemy because of a local political rivalry back in 1999.  Finally, having considered that the reduction of election violence in 2015 and the political party that that applicant supported was part of the ruling coalition of the current government, the board assessed that the perceived risk of harm upon the applicant’s return to Sri Lanka would be remote or speculative. 

9.  The applicant filed a Form 86 on 4 August 2017.  Neither the Form 86 nor the supporting affirmation made on 4 May 2017 contained any grounds for seeking relief.  The applicant only stated in the supporting affirmation that he had spoken the truth and that his uncles were killed by his enemies in Sri Lanka. 

10.  The applicant did not request for an oral hearing for his leave application.  After summarizing the background of the case and giving consideration to the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave at paragraphs 9 to 12 of the CALL-1 Form:

“9. On 4 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in his Form 86 nor in his supporting affirmation of the same date did he provide any grounds for his intended challenge other than repeating his claim as before that his life would be in danger if he is to return to Sri Lanka, as it has been held even high standard of fairness does not entitle a claimant to just make the claim and then sit back and require the Director or the Board, and in the present case the Court, to prove it: see CH v Director of Immigration [2011] 3 HKLRD 101 at paragraph 47.

10. Given the long lapse of time since the applicant left Sri Lanka and the fact that his parents are still living safely in Sri Lanka without any disturbances as found by both the Director and the Board, and the lack of any independently verifiable reference or information as to the Army Kaluwa group as well as the issue over his credibility after taking into account of all those documents provided by him, I am unable to think of any ground which he could have raised or relied on for his intended challenge under the circumstances.

11. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

12. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

11.  According to the court record, the CALL-1 form and the deputy judge’s order were sent to the applicant by post on 4 May 2018.

Application for adducing fresh evidence

12.  As we have mentioned in paragraph 2 above, in his letter to the court dated 13 June 2018, the applicant provided a 9-page set of documents, including:

(a)  a registered postal article receipt with no English translation;

(b)  a certificate of death with no English translation;

(c)  a letter to the President dated 27 November 2004 with an English translation;

(d)  a register of deaths with no English translation; and

(e)  a letter from a justice of peace dated 22 June 2017 with an English translation.

13.  We can only consider items (c) and (e) because only these two documents were accompanied with English translations.

14.  We note in paragraphs 33 to 35 of the board’s decision that documents of similar nature had been provided to the board for consideration.  Having said that, there is no suggestion that the exact documents that were submitted to us in his letter dated 13 June 2018 had already been provided to the director, the board, or the deputy judge for consideration.  As this court previously held, the rule in Ladd v. Marshall [1954] 3 All ER 745 limiting the circumstances under which fresh evidence can be admitted on appeal is generally applicable in non-refoulement appeals though the court may relax it where there are exceptional circumstances warranting the same, see: Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Zafar Muazam [2018] HKCA 176, Re Romail [2018] HKCA 186, and Re Miha Md Limon [2018] HKCA 278.

15.  The applicant did not provide any explanation as to why he could not obtain such evidence with reasonable diligence for use at the proceedings before the director or the board.  It should be borne in mind that the applicant lodged his non-refoulement claim in 2008.  As mentioned in paragraph 9 of the director’s first decision, the applicant had indicated in the Questionnaire dated 8 March 2012 that he would try to obtain some supporting documents.  Yet he did not submit any to the director.  The board also noted in paragraph 19 of its decision that, during the oral hearing, the applicant asked for time to submit further documents, which request was rejected on the ground that the applicant had already had sufficient time to provide documents since 2008.  In these circumstances, we do not accept that the applicant could not have obtained the new documents with reasonable diligence.  The first requirement in Ladd v Marshall is not met.

16.  More importantly, both items (c) and (e) referred to the bombing of the applicant’s home in 2001.  In paragraph 37 of the board’s decision, it was stated that the board was willing to accept that the applicant’s home was attacked during the election violence in 2001.  It was because of the lapse of time and the reduction of election violence in 2015, that the board assessed the perceived risk of harm as not to be real.  Item (e) related to the bombing of the applicant’s house in 1988-1989, which does not appear to have anything to do with the applicant’s perceived risk of harm upon his return to Sri Lanka.  In such circumstances, the documents could not have an influence on the result of the case.  The second requirement of Ladd v Marshall is also not satisfied.

17.  The above analysis is sufficient to dispose of the application to adduce fresh evidence.  We would also add that, in item (c), the bombing was said to have happened on “07.12.2001”, which was different from what the applicant told the director and the board that the bombing happened on 7 January 2001.  It does not appear to us that, on the face of it, the said item was credible. 

18.  As the applicant fails to satisfy the legal requirement for adducing fresh evidence, and we do not see any exceptional circumstances justifying a departure of the rule, we refuse to admit the documents attached to his letter dated 13 June 2018 as fresh evidence.

Application for an extension of time to appeal

19.  We now turn to the discussion regarding the applicant’s summons for extension of time to appeal.

20.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 21 May 2018, he applied for an extension of time to appeal.  It was stated in the affirmation made on the same date that he needed more time to obtain his supporting documents.

21.  We note that there was no draft Notice of Appeal attached to the summons or exhibited to the supporting affirmation.

22.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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 extension of time was granted, see: Chee Fei Ming v Director of Food and Environment Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v Ng Leung Sing & Anor HCMP 3217/2015, 22 January 2016.

23.  In this case, the applicant was late by 3 days.  The length of delay is short.  We are prepared to proceed on the assumption that he applicant’s delay is excusable.

24.  As we have said before, the arguability of the intended appeal is an important consideration in an application for extension of time, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad, supra.  The crucial consideration in this application is whether the applicant can show that there is a reasonable prospect of success in the intended application for judicial review. 

25.  It is clear from both the director’s first decision (at paragraph 18) and the board’s decision (at paragraph 50) that they concluded that, if the applicant returned to Sri Lanka, it was implausible for prominent politicians such as MY and LY to continue to target at him because of a political rivalry back in 1999.  The board also found that, in absence of any independently verifiable information, the existence of the alleged criminal organization the Army Kaluwa group was questionable.  Given the change of political environment, the board assessed that the perceived risk of harm if the applicant returned to Sri Lanka would not be real.  There is no evidential basis to link the deaths of the applicant’s uncles and the enmity between his family and MY and LY.  There is no reason for us to differ from the findings of the director and the board.  On the basis of these findings, the board was perfectly entitled to conclude that there was no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments which meet the high threshold as required by law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.  We do not see any flaw in the reasoning.

26.  As we have said many times before, although the court will adopt an enhanced standard in scrutinizing the decision of the board due to the seriousness of issue at hand, the primary decision maker is still the board.  Determination of the merits of non-refoulement claims is essentially a matter for them, and the court should not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the board in the hope that the court may consider the matter afresh even in the absence of any legal error, see: Re Sheikh Iddris [2018] HKCA 2; Re Traore Ali [2018] HKCA 92; Re Masoom Parvez [2018] HKCA 163; and Re Lakhwinder Singh [2018] HKCA 246.

27.  Like the deputy judge, we do not see any errors of law or procedure in the proceedings before the board.  Nor can we discern any reasonable basis to challenge the fairness of the process.  In our view, there is no prospect of success in the intended judicial review.  We would not grant extension of time for a hopeless appeal to be lodged.  The summons of 28 May 2018 is dismissed accordingly.

28.  We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A), we order that no party may request this determination be reconsidered at an oral hearing inter partes.