NONIS PATTINI KUTTIGE SAMPATH THUSHARA v. TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 531/2018

[2019] HKCA 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2018

(ON APPEAL FROM HCAL NO 1498 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the judgment of the court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 18 March 2019 ([2019] HKCA 336), dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2.  By a Notice of Decision dated 10 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 12 July 2018.

4.  He filed a Form 86 on 30 July 2018 to seek leave to apply for judicial review in respect of the decision of the Board.  His application was refused by Anthony Chan J on 15 October 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 26 October 2018.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 12 December 2018.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 18 March 2019 as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

6.  The applicant filed a Notice of Motion on 25 March 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 4 April 2019.

7.  In the Notice of Motion, the applicant stated that:

(1)   there is some error in law in the decision;

(2)   decision maker just relied on COL [sic] information;

(3)   he requested the court to “retest” his fact to protect his life as he never got any oral hearing or any opportunity to explain his problem, and he now submits supporting document regarding his problem.

8.  In his written submissions, the applicant submitted that there is no judicial system in his home country being Sri Lanka and that his life will be harmed and he attached 4 pages of documents, namely:

(1)   a letter purportedly issued on 18 December 2018 by Dr Kavinda Jayawardena, a member of Parliament, certifying that the applicant is an active supporter of the United National Party;

(2)   a purported police report dated 21 August 2018 notifying the applicant to report to police station as soon as he returns to Sri Lanka; and

(3)   an article entitled “UN Torture Prevention Body to Advise Sri Lanka on Implementation of Treaty Obligations” dated 2 April 2019.

9.  The applicant did not take out a summons to apply for leave to adduce further evidence being those documents attached to his submissions.

10.  Although the Court of Appeal has the power to receive further evidence, pursuant to Order 59 Rule 10(2) of the Rules of the High Court, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.  Further evidence is admissible on an appeal only where such evidence satisfies these three conditions: (i) it could not have been obtained at the trial with reasonable diligence; (ii) it would or might, if believed, have a very important effect on the mind of the tribunal; and (iii) it is of a sort which inherently is not improbable (Ladd v Marshall [1954] 1 WLR 1489 at 1491).

11.  The article entitled “UN Torture Prevention Body to Advise Sri Lanka on Implementation of Treaty Obligations” appeared to be published after the date of the judge’s decision.  It stated that “a preliminary assessment of the information received indicates that there are reasonable grounds to believe that [illegible] unlawful abductions and detention and of torture…and that such practices might be continuing in northern Sri Lanka”.  However, the applicant’s family home is in Ja Ela, a suburb of Colombo in the Western Province, which is in the southern part of Sri Lanka.  This further evidence is far from sufficient for establishing the applicant’s case for the purpose of obtaining leave to apply for judicial review.  It is not likely to have a very important effect on the mind of the tribunal.

12.  As for the remaining documents, since the applicant’s non‑refoulement claim was made back in 2013 and the whole process of assessment of his claim lasted several years, supporting documents could have been obtained and adduced before the judge with reasonable diligence.

13.  The further evidence sought to be adduced plainly does not satisfy the first two conditionsin Ladd v Marshall. The applicant also failed to establish that there are any exceptional circumstances in his case which justify that such further evidence should be admitted in the interests of justice.  Leave to adduce such further evidence attached to the applicant’s submissions is refused.

14.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 March 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We think it appropriate to adopt this course.  This application shall be determined on paper.

15.  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.

16.  The applicant has 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).  The grounds stated in the notice of motion and the applicant’s written submissions do not constitute any viable grounds for granting leave to appeal to the Court of Final Appeal.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

17.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.