NAIDA BADUGE NISHANTHA PRADEEP DE SILVA alias BOVI THANTRIGE LASANTHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 96/2023, [2023] HKCA 1083

On appeal from [2023] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 96 OF 2023

(ON APPEAL FROM HCAL NO 1300 OF 2022)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 27 March 2023, Deputy High Court Judge To refused to grant leave for the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on the same day.

2.  The applicant is a Sri Lankan national. He is 52 years old. He first entered Hong Kong on 27 February 2002 under the identity of “Bovi Thantrige Lasantha”. He was arrested on 6 March 2002 for possession of goods in contravention of the Dutiable Commodities Ordinance and was subsequently sentenced to 9 months’ imprisonment. He was deported on 5 September 2002 after serving his sentence.

3.  In 2003, the Applicant came to Hong Kong to work as a foreign domestic helper under the identity of “Naida Baduge Nishantha Pradeep De Silva”. He last arrived in Hong Kong on 27 December 2019. His employment contract was prematurely terminated on 21 April 2020. On 27 April 2020, he was arrested for the offence of breach of deportation order in relation to his deportation in 2002. He was sentenced to a total term of 26 months’ imprisonment. After his discharge from prison, he lodged his non-refoulement claim by way of written signification on 13 January 2022. His claim was made on the basis that if he returns to Sri Lanka, he will be seriously harmed or killed by some illegal drug traffickers due to his complaints against them, and by the Minister of Rural Roads and Infrastructures and his associates as the drug traffickers were the supporters of the minister.

The decisions of the Director and the Board

4.  By a Notice of Decision dated 8 April 2022, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  The Director considered that the behaviour of the drug traffickers, the Minister and his associates was not commensurate with the applicant’s allegations. The perceived risk of harm was not as imminent and substantial as the applicant might have surmised. The Director further considered that even assuming that the applicant’s enemies did have the real intention to harm or kill him, there is no substantial ground to believe that they would have the ability and resources to locate the applicant nationwide in Sri Lanka. The Director also found that the applicant’s problem was a private and personal dispute and the evidence showed that the applicant was not a target of the Sri Lanka authority. In addition, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk.

6.  The applicant appeared at the hearing of his appeal against the Director’s decision before the Board via the ‘Remote Official Visit System’ with the assistance of an interpreter on 30 June 2022. Although the Board accepted that the applicant did make a complaint to the police about the local criminal gang members in his home area and that he faced certain retaliatory consequences from that complaint, the Board did not accept that the members of the gang were connected with the then Minister in the Sri Lankan Parliament. The Board also considered the fact that the said Minister had resigned in March 2022 would necessarily reduce any influence he may otherwise have, even if the Board were wrong in the aforesaid finding. It was further held that any threat to the applicant that may have arisen following the said complaint would have dissipated with the passage of over two years. The Board concluded there is no appreciable risk of proscribed harm if the applicant returns to his home area and further held that internal relocation would be a reasonable alternative for the applicant. For the above reasons, the Board rejected the appeal on 3 November 2022.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 21 November 2022 to seek leave to apply for judicial review against the decision of the Board. He put forward the following grounds for his intended challenge:

(1)  The Board erred in assuming that he was aware of the availability of protection in Hong Kong;

(2)  The Board erred in drawing an inference that it is inherently unlikely any politician would be involved in drug gangs;

(3)  The Board erred in assuming that the Minister’s influence has diminished with his resignation and ignored the fact that he is still a member of the parliament since 20 August 2020;

(4)  There is no evidence to support the finding that the threat would have dissipated with the passage of time;

(5)  The Board erred by not taking into account the relevant country of origin information (“COI”).

The judge’s decision

8.  The leave application was heard by DHCJ To on 1 March 2023. The applicant confirmed at the hearing that he had no complaints about error of law and procedural unfairness but he complained that the decision was irrational. The judge found there is no substance in any of the applicant’s grounds. In particular, the judge held that the Board was entitled to make the findings of fact regarding the inherent unlikeliness that a politician would be involved in drug gangs, the diminution of the Minister’s influence after his resignation as well as the dissipation of threat, having carefully analysed the evidence available and the COI. The judge also considered that the Board did not make any adverse finding against the applicant based on the assumption that the applicant was aware of the availability of protection in Hong Kong and his complaint is not valid. Furthermore, the judge found that the Board had considered the relevant COI and the applicant had failed to identify any particular COI that he alleged the Board had failed to take into account. As the judge found that the applicant’s intended judicial review has no prospect of success, he refused the leave application on 27 March 2023.

Grounds of appeal

9.  In the Notice of Appeal filed on 27 March 2023, the applicant stated that the gravity of his circumstances has not been weighed or realized by the Board and the Director in considering his non-refoulement claim and he should be given an opportunity to plead his case properly.

Non-compliance with order for lodging of skeleton argument

10.  Directions were given by the Registrar of Civil Appeals on 15 May 2023 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar also made clear the hearing date that has been fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

11.  The appeal was scheduled to be heard on 27 June 2023. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 30 May 2023. As the order of the Registrar was not complied with, the hearing date has been vacated. By letter dated 6 June 2023, the court informed the applicant the hearing date has been vacated and his appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

14.  The applicant’s grounds of appeal are just bare assertions without particulars or evidence in support. He failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss the appeal.