RE PANAGODA LIYANAGE SURANGA DULIP PERERA

CACV 129/2023, [2023] HKCA 994

On appeal from [2023] HKCFI 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 129 OF 2023

(ON APPEAL FROM HCAL NO. 455 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 21 April 2023[1] refusing to give him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 February 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”) dated 14 June 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka aged 40. He is single. He has a girlfriend in Hong Kong and they have one son. He first came to Hone Kong on 19 August 2005 and was given permission to remain as a visitor for one month. He overstayed and was arrested by the police on 12 June 2007. He lodged a torture claim on 29 June 2007 which he eventually requested to withdraw on 31 May 2012. He departed Hong Kong on 2 July 2012 and the torture claim was deemed withdrawn. He later re-entered Hong Kong illegally and on 10 May 2013 surrendered to the Immigration Department. He raised a non-refoulement claim based on fear of being harmed or killed by a person named Nalin and his underworld gang members who are associated with the United People’s Freedom Alliance Party (“UPFA”) because he had attacked Nalin and also because of his and his father’s political affiliation with United National Party (“UNP”). The details of the applicant’s claim are set out at [7] of the Director’s Decision and summarised by the Judge at [5] to [13] of Form CALL-1.

3.  In gist, the applicant claimed that his father was a committee member of UNP in his village, Pothanegama, and a renowned speaker at rallies held by the UNP. He followed his father and actively participated in rallies and activities of UNP. According to the applicant, when he worked in a hotel, Nalin was his colleague. Nalin belonged to an underworld gang organised by the then provincial Chief Minister, who belonged to UPFA. Nalin has been a close friend of the Chief Minister’s son, Duminda, who is member of the Sri Lanka Freedom Party, a Member of Parliament, a government minister, and a close confidante of the Prime Minister at the relevant time.

4.  The applicant claimed that he had conflicts with Nalin on several occasions. On one occasion in December 2004, Nalin wrongly accused him of stealing from customers and attacked him. Later that evening, the applicant together with some of his friends returned to the hotel and attacked Nalin with clubs, causing injuries to his head. The applicant later surrendered himself to the police. He and his friends were kept in prison for 14 days, during which they were ill-treated and beaten by the prison guards. It is the applicant’s case that the Chief Minister deliberately used the incident to attack the applicant due to his father’s popularity in the UNP. It was after paying damages to Nalin to settle the case that the applicant was released. The applicant went to stay with his friend as Nalin and his people had been to his home to look for him and had abused his mother as well as threatened to kill him. Later, fearing for his personal safety, his father arranged for him to come to Hong Kong.

5.  As a result of his mother’s poor health, the applicant decided to return to Sri Lanka in July 2012. However, two days after he was repatriated to Sri Lanka, five men armed with pistols went to his home to look for him. He managed to escape and went to stay with his relative. As Nalin continued to look for him, his father was concerned about his safety and arranged for him to go to Malaysia to seek refuge. He was however denied entry. Eventually in April 2013, he travelled to Mainland China from where he sneaked into Hong Kong.

The Director’s decision

6.  By a Notice of Decision dated 14 June 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5] grounds.

The Board’s decision

7.  The applicant appealed to the Board. The Board heard the appeal at a hearing held on 4 September 2018. By its decision dated 25 February 2019, the Board dismissed the appeal.

8.  In gist, the Board considered that, while some aspects of the applicant’s evidence were plausible, much of it was confusing, vague and speculative, including his evidence about Nalin, his underworld gang and his relationship with Duminda. The Board had considered documents provided by the applicant, namely (1) news articles on gang activities in Sri Lanka, but found they did not show the “thuggery” or improper association between Duminda and Nalin asserted by him; and (2) two letters, one written by a retired senior police superintendent and another by a provincial council member, but found their contents about the applicant’s past political activities to be inconsistent with the applicant’s account given to the Board. The Board had doubts about the reliability of the applicant’s evidence about Nalin’s connection to Duminda and the underworld gang and the plausibility of Duminda and Nalin plotting to harm the applicant, target his father or continuing to have an adverse interest in the two of them.

9.  The Board, while accepted that the incident in December 2004, during which Nalin accused the applicant of stealing and assaulted him, and the applicant’s subsequent attack of Nalin which led to his being held in custody did happen, did not accept that Nalin was involved or associated with underworld gangsters’ activities, or that he had joined force with Duminda or his father to cause harm to the applicant or to undermine the applicant’s father. The Board also did not accept that Duminda had given the applicant’s particulars to the Sir Lankan police, who were on the lookout for him. The Board further rejected the applicant’s account that after his return to Sir Lanka in July 2012 five men armed with pistols went looking for him.

10.  In the circumstances and having regard to the long lapse of time since 2004, the Board found the risk of the applicant facing any of the prescribed form of harm at the hands of Nalin to be remote. The Board also found state protection and internal relocation options were available to the applicant, which would negate or reduce any risk of harm that he might face. The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

The Judge’s decision

11.  The applicant filed a Form 86 on 18 February 2019 to apply for leave to judicially review the Board’s decision. He stated in his supporting affirmation that he was not satisfied with the Board’s decision and it would not be safe for him to return to his country as his enemies were still looking for him and harassing his family members.

12.  The Judge dealt with the application on paper. By a Form CALL-1 dated 21 April 2023, the Judge refused to give leave for judicial review and gave his reasons in [24] as follows:

“24. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible on the crucial issues and that the risk of harm he would face on his return to Sri Lanka was unreal or remote. On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk, if it turns out to be real. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

The grounds of appeal

13.  The grounds of appeal set out in the notice of appeal are: (1) the gravity of his circumstances had not been weighed or realised by the Director and the Board; and (2) he should be given an opportunity to plead his case properly.

14.  The applicant had also filed an affirmation to support the appeal, in which he stated that there was a good ground of appeal that was not necessarily considered at the stage of applying for leave to appeal and the Director and the Board did not see the grounds. There was however no elaboration of what was/were the ground(s) of appeal.

15.  In his written submissions dated 23 June 2023 and received by the court on 4 July 2023, the applicant made the following points:

(1)  He decided to return to Sri Lanka in 2012 because his mother was in serious health condition. Shortly after his return, a politically affiliated gang came to his house to look for him. He escaped and went to Malaysia to seek protection, but the Malaysian authority repatriated him without regard to his dangerous situation.

(2)  He had no choice but to return to Hong Kong illegally. Although he did use a false travel document to come through to Hong Kong, it was because he was in extremely life-threatening situation.

(3)  While in Hong Kong, he met his present fiancé, who is also an asylum seeker. They have a son who was born in 2014.

(4)  He has not provided any false information about his case. He has been in Hong Kong for 18 years. His son and his partner are dependent on him. He hopes that their case can be considered on humanitarian grounds.

16.  The applicant also attaches 17 pages of documents to his written submissions, comprising the following:

(1)  A letter to the applicant from his father telling him not to go back as people said they were waiting for him.

(2)  A letter written by a Member of Parliament of Sri Lanka together with its English translation which stated that the applicant was engaged in active politics and committed to the UNP, as a result of which a group of political opponents were waiting to seek retribution and the applicant’s life would be in danger if he were to go back.

(3)  A letter written by a commissioner of oaths of Sri Lanka which stated that under the current situation if the applicant were to return to Sri Lanka, he would be subject to the same threat, including death threat, as before.

(4)  A letter written by the head monk of the temple in Pothanegama which stated that in the applicant’s village, Pothanegama, the underworld gang continued to threaten, hurt and assault people in the village, and if the applicant were to return to the village he would be subject to the same difficult situation as before.

(5)  A letter dated 26 April 2023 from a senior caseworker of Refugee Opportunity and Development (ROAD) to the Castel Peak Bay Immigration Detention Centre asking that the applicant not be detained as he has a son to look after.

(6)  The applicant’s letter to the court explaining that he has a common law wife and a son in Hong Kong where he has spent 18 years, his son is attending school and needs him, and he cannot go back home as he will face serious harm there. He asked that he would be allowed to remain in Hong Kong.

(7)  Two pages showing pictures of newspaper extracts about incidents of killing in Sri Lanka in June. One of these happened in the applicant’s village to the younger brother his best friend, who the latter had gone with him to attack Nalin in December 2004.

(8)  Eight pages of online news about shootings and killings in Sri Lanka. One of them referred to the shooting of a house in June 2023 during which a T-56 weapon was used. According to the applicant, the men who came to look for him in July 2012 were armed with T-56 weapons.

Items (3), (4), (6), (7) and one page of (8) are in the Sinhala language and not accompanied by a translation in either of the official languages (i.e., English or Chinese). Their contents were interpreted to us by the court interpreter.

17.  At the hearing of the appeal, the applicant stated that the additional documents reflect the current situation in Sri Lanka and that he cannot go back to his village or the country as he is still subject to danger and threats of harm. He said he would not be able to work because if he produced his identity document, his enemies would soon locate him. He also said that his son and common law wife need him to be in Hong Kong and his health condition is not good and needs to receive medical care in hospital. The applicant further made reference to being charged in the Magistrates’ Court in 2016 for remaining in Hong Kong without the Director’s authority after having landed unlawfully in September 2014 and in connection with a false passport that he used to come through to Hong Kong. From the court papers he produced at the hearing, the 2016 case (STCC 1444/2016) is pending and is next adjourned to 18 September 2023. According to the applicant, the case has been repeatedly adjourned because the determination of his non-refoulement claim is pending.

Our reasons for decision

18.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. 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. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

(3)  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.

19.  In relation to the documents submitted by the applicant together with his written submissions, they all post-date the hearing of the appeal before the Board and could not have been considered by the Board. While we understand that the applicant is seeking to show the current situation in Sri Lanka and demonstrate that he continues to face risks of harm there, we, as the appellate court, cannot act on these materials and information that were not before the Board or the Judge. As explained above, the primary decision makers are the Director and the Board. The court in judicial review proceedings do not determine the applicant’s non-refoulement claim afresh, and will only examine the primary decision makers’ decision in light of the materials before them to see if there are public law grounds for interfering with the decisions. The appellate court’s role is to consider whether there are legal or procedural errors in the first instance judge’s decision in the judicial review proceedings.

20.  As for the criminal case pending in the Magistrates’ Court, we are surprised that it has been outstanding since 2016. In general, it is undesirable and not in the interest of justice for a criminal case to be adjourned and left hanging in the air for such lengthy period. It is not difficult to see the anxiety caused to the applicant by the attending uncertainties and worries about the probable impact of a prison term on his family members. It may be that consideration should be given to terminating the prosecution which has not been pressed on for so long. That having been said, it is not a matter that we can take into account in considering the merits of this appeal.

21.  Similarly, it is not open to this Court to accede to the applicant’s request that exceptional and compassionate considerations may be given to his case on humanitarian grounds in light of the established principles set out above. It is a matter for the Director and is outwith the power of this Court.

22.  As to the grounds of appeal and the other matters raised in the applicant’s written and oral submissions, we are of the view that they have no merits. Critically, the applicant has not put forward any substantive ground to show that the Judge had erred in his reasoning and decision.

23.  Moreover, the applicant’s assertions that the Director and the Board had failed to weigh or appreciate the gravity of his situation and that he will face danger if he returns to his home country cannot stand in light of the Board’s finding that any risk of harm at the hands of Nalin is remote and will further be negated or reduced by the availability of state protection and internal relocation alternatives. Assessment of credibility and evaluation of risks are matters for the Board. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. Although the applicant has sought to demonstrate that the factual basis of his claim is credible, he has not advanced any arguable grounds to show that the Board’s assessment of credibility can be disturbed on public law grounds.

24.  We have separately reviewed the Board’s decision. We agree with the Judge that there is no proper basis for interfering with the Board’s evaluation of the evidence and its assessment of credibility and finding of facts. The intended judicial review has no reasonable prospect of success and leave to apply for judicial review should be refused. As the applicant’s appeal has no merits, we dismiss the appeal.