RE WIMALASURIYA DONA SHAYAMALIE

CACV 651/2020

[2021] HKCA 932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 651 OF 2020

(ON APPEAL FROM HCAL NO 1768 OF 2018)

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J U D G M E N T

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Hon Linda Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge P Li given on 18 December 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 20 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka.  She entered Hong Kong on 5 August 2009 to work as a foreign domestic helper.  Her contract was terminated prematurely on 23 September 2009.  She did not leave within the prescribed period and began to overstay.  She surrendered to the authorities on 11 August 2015.  She lodged a non-refoulement claim on 6 May 2016. 

3.  The applicant’s claim was based on threats from members of a political party (United National Party) which was against the party her husband supported (Janatha Vimukthi Peramuna).  The details of the applicant’s claim have been summarised by the judge at [3] to [16] of the CALL-1 Form.

4.  By a Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 16 March 2018, the Board dismissed the appeal on 7 June 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [62], [70], [76] and [80] of the Board’s Decision, the Board found that there was no substantial ground for believing that the applicant will suffer from any of the proscribed risks of harm upon her return.

The judge’s decision

7.  The applicant filed a form 86 on 28 August 2018 which contained no ground for seeking relief.

8.  In her affirmation in support of the leave application filed on 28 August 2018, the applicant deposed that:

“I like to say in this grounds that my U.S.M. case was rejected by [the Board]. But still I have life threaten by U.N.P. member and once they kidnap my husband too but he was escaped and hid in somewhere I don’t know he his or not now I submit my exhibit …”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [30] to [34] of the CALL-1 Form:

“30. The applicant applied for leave for judicial review on 28 August 2018. In her supporting affirmation, she pointed out that she still had life threat from UNP people.

31. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the [Board] is irrational. The finding of facts is the duty of the [Board] and the Director. In general, this court would not interfere.

32. The applicant had not pointed out any specific error in the decisions of the [Board] and the Director.

33. In my judgment, there is no error of law or procedure. I agree with both decisions. They are rational.

Conclusion

34. The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal filed on 28 December 2020, the applicant stated that:

“I would like to tell to appeal court regarding my situation to find the solution for my problem. I had many life problem in my country. Because in my country there are no plausible human right commission or any police commission. If we complain to any unit above mention our life become more danger and so many minorities one tortured by ruling party and many custodial death too. In this situation how can I save my life I am expecting to protect my life from my enemies. Because they are look like one land of Bandersnatch people. If I go my life become danger.”

12.  The applicant agreed by a letter of 28 December 2020 that the appeal could be heard by two judges.

13.  The applicant failed to comply with the direction made by this Court on 21 April 2021 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

14.  The requirement for lodging skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

15.  The hearing date on 22 June 2021 was therefore vacated and the applicant was debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

16.  The only ground of appeal advanced by the applicant is that it is unsafe for her to return to Sri Lanka.  She did not identify any error on the part of the judge and she has therefore failed to advance any viable ground of appeal.

17.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

18.  As for the bare assertion by the applicant that it is unsafe for her to return, this is not of itself a valid ground for judicial review or ground of appeal.  In any event, we note that the Board dismissed her claim for protection on the ground that there was no substantial ground for believing that the applicant would suffer from any of the proscribed risks of harm upon her return.  As the applicant failed to articulate let alone substantiate any public law error in the Board’s Decision, there is nothing to challenge the finding by the Board in this respect.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.