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CACV 403/2018
[2019] HKCA 185
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 403 OF 2018
(ON APPEAL FROM HCAL 885/2017)
_______________________
| RE: |
RAMANATHAN ARUNAGIRINATHAR |
Applicant |
_______________________
| Before: |
Hon Lam VP, Cheung and Barma JJA in Court |
| Date of Judgment: |
22 February 2019 |
___________________
J U D G M E N T
___________________
Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of the Deputy High Court Judge Bruno Chan (“Judge”) on 10 August 2018 in HCAL 885/2017 refusing leave to the applicant to apply for judicial review (“Decision of the Judge”)[1].
2. This appeal was scheduled to be heard on 16 January 2019 at 9:30 am. Due to the non-compliance with an unless order, the applicant is deemed to waive his right to have an oral hearing for this appeal. The hearing date of the appeal was vacated accordingly and we will process the application on papers.
Factual Background
3. The applicant is an Sri Lanka national[2] who allegedly entered into Hong Kong illegally on 10 November 2007[3]. The applicant raised his torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by the paramilitary group Tamil Eelam Liberation Organization (“TELO”)[4].
4. The background facts have been summarized in the Decision of the Judge [2018] HKCFI 1521 at [2]-[4].
The Director’s Decision and the Director’s Further Decision
5. The Director decided against the applicant’s torture claim on 12 August 2015. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), as well as other statutory and convention rights against torture and persecution[5] (“Director’s Decision”).
6. The Director decided against the applicant’s right to life claim on 3 August 2017 (“Director’s Further Decision”). The Director’s Further Decision covered applicant’s rights under Article 2 (right to life) of the Bill of Rights[6] (“BOR 2”).
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board on 24 August 2015. After two oral hearings held on 13 September 2016 and 15 September 2017, the Board dismissed the applicant’s appeal on 10 November 2017[7] (“Board’s Decision”).
8. The Board based its refusal on the following findings succinctly summarized in the Decision of the Judge[8]:-
“ 9. In its decision the Board found the applicant to have given inconsistent and conflicting evidence in relation to his account of past events, that his assertions of the second incident in 2000 as inherently incredible, that the authenticity of certain “official” documents produced by him relating to the charge against him in the High Court in Colombo is questionable whilst the other documents are inconsistent with his evidence, and concluded that the applicant has failed to establish that there are substantial grounds for believing that he would be subjected to any real risk of harms if refouled to Sri Lanka…”
Decision of the Judge
9. The Judge refused to grant leave to the applicant for judicial review.
10. The grounds of the applicant for his intended judicial review before the Judge were repetitions of factual background information that has been assessed by the Director or the Board. He claimed that he was threatened by armed authorities and others. He claimed that he was tortured. He stated that he would like to remain in Hong Kong to settle his problem. He submitted further country of origin information which did not advance his claim in light of the Director’s Decision[9].
11. The Judge held that the applicant’s intended grounds do not show any error of law, or any procedural unfairness, or irrationality on the part of the Board[10].
Notice of Appeal
12. The applicant filed his Notice of Appeal to the Court of Appeal on 16 August 2018[11]. His grounds of appeal can be summarized thus:-
(a) He would like to review the Director’s Decision in that it disregarded his dangerous situation;
(b) He was not given sufficient time to prepare for his case because most of his documents needed to be translated into English;
(c) He has given all his documentary proof.
Analysis
13. These grounds of appeal cannot constitute valid basis for reversing the decision of the Judge. There is no complaint against the reasoning reflected in the Decision of the Judge. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6).
14. We are of the view that the applicant’s appeal is without merits.
15. The appeal is dismissed.
| (M H Lam) |
(Peter Cheung) |
(Aarif Barma) |
| Vice President |
Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] [2018] HKCFI 1521;
[2] Decision of the Judge at §1;
[3] Decision of the Judge at §1;
[4] Decision of the Judge at §1;
[5] Decision of the Judge at §5;
[6] Decision of the Judge at §7;
[7] Decision of the Judge at §8;
[8] Decision of the Judge at §9; Board’s Decision at §19-36;
[9] Decision of the Judge at §10-11;
[10] Decision of the Judge at §12-13;
[11] CA File, Folio 1;
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