WARNAKULASURIYA CARMEL MANJULA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 390/2020

[2021] HKCA 407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2020

(ON APPEAL FROM HCAL NO 618 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 August 2020 dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 27 February 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”) dated 25 June 2015 and 27 October 2016 rejecting her non-refoulement claim.

2.  The applicant is a Sri Lankan national.  She arrived in Hong Kong on 5 July 2005 and was permitted to remain as a visitor until 4 August 2005.  She did not depart and has overstayed.  She was arrested by police on 21 November 2007 for illegal remaining.  By way of a written representation dated 26 November 2007, the applicant lodged her torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. Upon the commencement of the unified screen mechanism (“USM”) on 3 March 2014, the applicant’s claim was taken to be a non-refoulement claim under USM. 

3.  The applicant’s claim was based on the fear that, if she returned to Sri Lanka, she would be harmed or even killed by her violent and abusive ex-husband.  The factual background was succinctly summarized by the Judge at [2] to [6] of the Form CALL-1[1]. 

4.  By notices of decision dated 25 June 2015 and 27 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former decision covered BOR 3 risk[2], persecution risk[3], and torture risk[4], while the latter covered BOR 2 risk[5].

5.  By its decision dated 27 February 2017, the Board dismissed the appeal having regard to all applicable grounds.  Although the Board found that in June 1995 the applicant’s ex-husband had tortured her with the acquiescence of a public officer, due to the passage of time (more than 20 years) and improvements in the conditions in Sri Lanka (according to COI relied upon by the Director), the Board did not see a foreseeable risk that the applicant would be tortured by her ex-husband in the future.  As such, the Board did not see a real risk of harm in the event of refoulement.

Application for leave to start judicial review

6.  On 11 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief.  In her affirmation in support, she stated that the Board and the Director’s decisions were very unreasonable because they depended merely on web reports and some Sri Lankan authorities’ reports but did not go to sources relevant to her torture claim.

The Judge’s Decision

7.  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 [15] to [19] of the Form CALL-1:

“15.  As the last day of the three-month period for her to file her Form 86 fell on 27 May 2017, the Applicant was therefore more than 10 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HK1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of more than 10 months must be considered as very substantial or excessive, for which she did not provide any explanation, and as the records confirm that the decision was sent to her last reported address as the same stated in her Form 86 and without having been returned through undelivered mail, I am unable to see any good reason for her such serious delay.

17.  As for the merit of her intended application, as noted above the Applicant failed to put forward any proper or valid ground to challenge the Board’s decision other than claiming that she was not satisfied with the decision. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the Applicant’s case, in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I am unable to find any basis or merit in her intended challenge. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  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.”

Appeal to Court of Appeal

8.  By a Notice of Appeal filed on 18 August 2020, the applicant appealed against the refusal of leave for judicial review.  Her ground of appeal was that she could not go home because her life is still in danger as her husband is still hunting for her and will go to her home to find out if she has returned. 

Written Submissions

9.  Pursuant to the Court’s directions, the applicant lodged her written submissions on 18 February 2021.  In those submissions, the applicant argued that the Board’s determination of her claim was procedurally unfair because she was never provided with proper legal and language assistance.  The applicant argued that the Board’s decision was never read back to her in her language, and the failure to do so was procedurally unfair.

10.  The applicant also submitted that there was procedural unfairness due to public policies of trying to dispose of non-refoulement claims as quickly as possible, and that such policies indicate a discriminatory attitude on the part of the authorities.

11.  Nevertheless, the applicant did not provide any details or particulars in support of her arguments or identify any specific errors by the Judge.

Legal Principles

12.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

13.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

14.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6]and we will not repeat them here. 

15.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

16.  We heard the appeal on 22 March 2021. At the hearing, the applicant had nothing further to say. 

Discussion

17.  As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

19.  It is insufficient for the applicant to argue that a lack of proper legal and language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error or were unfair or unreasonable.  The applicant has not raised such details; thus this argument is untenable.

20.  The applicant was legally represented and provided with language assistance on her claim before the Director.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

21.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there is no foreseeable risk that the applicant would be tortured by her ex-husband in the future.  Such finding is within the province of the Board, and the court will not interfere with the Board’s assessments unless they are reversible on public law grounds. 

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

23.  For these reasons, this appeal is dismissed.