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

CACV 96/2023, [2024] HKCA 1019

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)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 20 September 2023 ([2023] HKCA 1083). The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge To dated 27 March 2023 refusing to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 6 October 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

Grounds of appeal

3.  The applicant stated the following grounds of appeal in his notice of motion filed on 25 September 2023:

(1)  His appeal was dismissed without any oral hearing but he still has life-threatening problem from his enemies in his home country. He needs to explain to the court in an oral hearing;

(2)  He will try his best to obtain supporting document as soon as possible.

4.  He attached a one-page document concerning Minister Nimal Lanza to his written submissions and contended that:

(1)  His enemies gave him life threats. They had harmed him and tried to kill him several times so he came to Hong Kong to work and to save his life;

(2)  His enemies have political connection and have great influence with the police department so the police never takes any action against them. This is the real situation in Sri Lanka. They never took any action upon his complaint so he was unable to submit any supporting document;

(3)  When he came to Hong Kong for the first time, the agent kept his passport and gave him an illegal job but the applicant did not know about this. He was deported to his country after being caught;

(4)  The applicant then tried to live peacefully in his home country but the enemies tortured and injured him. The police did not take any action despite the applicant’s complaint as they are the loyalists of Minister Nimal Lanza;

(5)  Therefore, the applicant came to Hong Kong again to save his life and to live with his family in Hong Kong.

Analysis and disposition

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The hearing of the appeal before the Court of Appeal was vacated because of the applicant’s failure to comply with the directions of the court. The applicant failed to demonstrate any mistake or unfairness in the decision of the Court of Appeal.

7.  He adduced a one-page document without applying for leave to adduce new evidence. Having read the document on a de bene esse basis, it does not appear that this has any bearing on his case that his enemies are connected to Minister Nimal Lanza.

8.  The applicant failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9.  We decline to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 25 September 2023.