RE KANDIAH MERCEY MATILDA

CACV 218/2021

[2021] HKCA 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2021

(ON APPEAL FROM HCAL 1011 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Kandiah Mercy Matilda, against the order made by Deputy High Court Judge Bruno Chan (“Judge”)  on 23 April 2021 (“Judge’s Decision”), refusing her leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 7 May 2018 (“Board’s Decision”), dismissing the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 16 August 2016 and a notice of further decision dated 18 July 2017 (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Basis of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Sri Lanka now aged about 57, is a fear of being harmed or even killed by (1)  some military deserters in revenge for reporting them to the authorities after they hid ammunitions in her garden despite her protest; (2)  her brother’s murderers who made death threats against her after she reported them to the police; and (3)  her estranged abusive husband who had threatened to kill her if she should return to Sri Lanka after they failed to settle on the division of their property.

3.  For a detailed summary of the circumstances giving rise to such fear, see paragraph 6 of the Director’s 1^st Decision and paragraphs 19 to 65 of the Board’s Decision.

Overstaying in Hong Kong and lodgment of NRF Claim

4.  The applicant arrived in Hong Kong on 22 July 2013 to work as a foreign domestic helper.  She had permission to stay until 14 days after the expiration of her employment contract.  Her contract was terminated prematurely on 17 August 2013.  The applicant did not leave after an extension of her visa which expired on 31 October 2013.  Instead, she overstayed in Hong Kong until 4 November 2013 when she surrendered to the Immigration Department.

5.  The applicant raised the NRF Claim by written representation dated 9 April 2014.  She submitted a Non-refoulement Claim Form on 13 January 2016 and attended a screening interview with the representative(s)  of the Director on 22 March 2016, with legal representation from the Duty Lawyer Service.

Director’s Decisions

6.  The Director’s 1^st Decision found the NRF Claim unsubstantiated under the following grounds for non-refoulement protection: torture risk[1], persecution risk[2] and “BOR 3” risk[3].  The Director’s 2^nd Decision further rejected the NCF Claim for failing to show any “BOR 2” risk[4].

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s 1^st Decision to the Board on 29 August 2016.

8.  The Board conducted a rehearing of the NRF Claim on 10 January 2018 and 17 April 2018, at which the applicant testified before, and answered questions by, the Board through an interpreter.

9.  The Board found the NRF Claim incredible and dismissed the appeal on all 4 applicable grounds for non-refoulement protection[5]. More particularly:

(1)  The applicant produced a letter purported to have been written by a local government official under the Ministry of Administration and Management in support of the alleged threats from the military deserters.  The Board felt unable to rely on the letter, given that the address of the office of the official was incorrect and that the applicant could not identify the official whom she claimed to know.

(2)  The applicant could not give any credible explanation for failing to produce his brother’s death certificate which would have shown the cause of death.  The photocopy of a photograph of a person with dates of birth and death, produced by the applicant, proved nothing.

(3)  The applicant last saw her husband in 2005.  It was unlikely that he would re-surface after 10 years to make death threats against the applicant in August 2015.

Application for leave for judicial review and Judge’s Decision

10.  The applicant’s notice of application for leave to apply for judicial review issued under HCAL 1011/2018 on 30 May 2018 (“Form 86”)  did not contain any proposed ground for judicial review.  The supporting affirmation of the same date merely asserted that she needed to stay in Hong Kong.  At the hearing of her application in open court, the applicant only repeated her claim that her life would still be in danger in her home country, without putting forward any proposed ground for judicial review.  That being the case, the Judge did not find any reasonably arguable basis for the applicant’s intended challenge and dismissed the Form 86.

Appeal to Court of Appeal - grounds of appeal and submission

11.  The applicant advanced no grounds of appeal, properly so called, in the notice of appeal and the supplemental notice of appeal filed herein on 4 May 2021 and 30 June 2021 respectively and in her written submission dated 9 August 2021.  All that the applicant did was to repeat the fear for her life back in Sri Lanka and to complain, without giving any particulars, that the NRF Claim and the application for leave for judicial review had not been fairly or properly dealt with.

12.  The applicant appeared in person at the hearing of the appeal on 6 September 2021.  She was provided with a Sinhalese/English interpreter.  She produced letter from a Buddhist monk dealing with her good character. Apart from that, she added nothing new.

Discussion

13.  In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

14.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

15.  The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  That being the case, the application for leave for judicial review of the Board’s Decision was doomed and rightly dismissed.

16.  Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

17.  The applicant did not in either of the notices of appeal or submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

18.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.