RATHNAYAKA MUDIYANSELAGE JAGATH PRIYANTHA v. TORTURE CLAIMS APPEAL BOARD

CACV 212/2022

[2022] HKCA 1171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2022

(ON APPEAL FROM HCAL 2033 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 24 May 2022, the Applicant, acting in person, filed a notice of appeal (“the Notice of Appeal”) against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 May 2022 (“the Order”) refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 7 September 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 22 July 2015 and 14 June 2017.

BACKGROUND

2.  The Applicant is a national of Sri Lanka. He arrived in Hong Kong on 10 June 2005 as a visitor with permission to remain up to 15 June 2005. He did not depart upon the expiry of his limit of stay, and became an overstayer in Hong Kong. He was arrested by the police some 4 years later on 9 July 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim[1], alleging that if he returned to Sri Lanka, he would be harmed or killed by a terrorist group known as Liberation Tigers of Tamil Eelam (“LTTE”) and/or by their former leaders who had since joined the Sri Lankan Government or the Parliament in revenge against him for having fought for the Sri Lankan Army against LTTE. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1391).

3.  On 12 April 2013, the Director rejected the Applicant’s torture claim. On 10 June 2013, the Board dismissed the Applicant’s appeal against the Director’s decision in respect of his torture claim. In the meantime, on 17 April 2013, the Applicant lodged a claim for non-refoulement protection under the Unified Screening Mechanism based on the same allegations.

4.  By a Notice of Decision dated 22 July 2015 and a Notice of Further Decision dated 14 June 2017, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4],.

5.  The Applicant appealed the Director’s decisions to the Board. On 7 September 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form:

“In its decision the Board found the Applicant’s claim unreliable when his credibility had been undermined or damaged by his failure to raise his claim upon his first arriving in Hong Kong until some 4 years later and after he was arrested by the police, that there were many questions such as why he chose to come to Hong Kong or why he did not just relocate to other part of Sri Lanka to avoid his claimed threats that he had failed to answer, and that in any event reliable COI show that the Sri Lankan civil war had ended in 2009 when LTTE was defeated and is a spent force and no longer poses any threats to anyone, that there is never any evidence of any threats from LTTE directed against the Applicant who was just one of many soldiers involved in the government’s fight against LTTE during all those years, and that in any event state/police protection would be available to him upon his return to Sri Lanka if needed as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 26 September 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  On 17 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[11] On 26 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various complaints for his intended challenge which can be summarized as follows:

(1) That the Board erred in law in rejecting the credibility of his claim on the basis that he did not raise his claim when he first arrived in Hong Kong until years later when the fact is that he did immediately apply to the UNHCR for refugee status and it was only after his application was rejected by the UNHCR that he then raised his non-refoulement claim with the Immigration Department;

(2) That the Board erred in law in finding the Applicant’s claim unreliable by raising various questions thereof in its decision but without putting those to the [Applicant] at the hearing or to give him an opportunity to answer them which is unfair and unreasonable in the circumstances for the Board to find the Applicant unreliable; and

(3) That it was unfair for the Board to refuse to postpone his appeal hearing when his original counsel whom he trusted was away abroad and as a result DLS had to replace his counsel with someone new to the Applicant thereby affected his confidence in arguing his appeal before the Board.

[12] The Applicant’s complaints under the first 2 grounds about the Board’s assessment of the credibility of his claim can be considered together …

[13] While the Adjudicator was certainly entitled to raise these questions with the Applicant during his appeal hearing as part of the assessment of his credibility, and that some of them were indeed recorded in the Decision as having been put to the Applicant as well as his answers ([24]), I agree that there does not appear from the decision that all of the relevant questions had indeed been so put or raised to the Applicant during the hearing, and if indeed they had, what were his response or answers? I am unable to find the rest of them in the Decision, or any such analysis thereof by the Adjudicator.

[14] More significantly, while the Adjudicator was also entitled to take account of the various behavior of the Applicant under the provisions of Section 37ZD of the Ordinance as damaging to his credibility, it would still be the first and main task of the Adjudicator to make findings as to the core and substantive facts of the Applicant’s claim, of which the Adjudicator had identified as his fear of being harmed or killed by LTTE members because he had served in the Sri Lanka Army and had acted as an informant leading to a successful raid of one of LTTE camps ([2] of the Decision), but of which the Adjudicator did not appear to have made any factual finding in the Decision, or to give any or sufficient reasons as to why they were not found to be credible, and instead the Adjudicator appeared to have placed undue emphasis on peripheral matters such as the Applicant’s failure to consent for information provided to UNHCR for his application for refugee status to be released to the Director, or of those other behaviors of the Applicant which the Adjudicator found to be damaging to his credibility under Section 37ZD of the Ordinance.

[15] As such I agree that there may be merits in these complaints of the Applicant over the Board’s methods in assessing the credibility of his claim, but no matter how flawed they might seem to be, it is my [firm] view that ultimately they would not assist or advance the Applicant’s intended challenge of the Board’s decision in dismissing his appeal, as it is also clear that the Board in doing so did not just rely on its assessment of his credibility, as it had also found, correctly in this case, and from relevant COI which were never challenged by the Applicant or his lawyer at the hearing, that since the Applicant had left the country, the LTTE is ‘no more in Sri Lanka after their total defeat in 2009, that even previous LTTE cadres no longer practice terrorism, and that there is reasonable availability of State protection for victims of crime’ ([7] of Board’s Decision).

[16] In §8 of the Decision, the Board also correctly found that reasonable relocation within Sri Lanka would also be available to the Applicant that any risk from any former members of LTTE including those who may have joined the Sri Lankan Government or the Parliament would just be too remote in the absence of any evidence of any threats from them against the Applicant during all these years.

[17] In the premises, and for the reasons given, notwithstanding the flawed assessment by the Adjudicator of the Applicant’s credibility, I do not find either Grounds (1) or (2) would assist or advance the Applicant’s intended challenge of the Board’s reasons for dismissing his appeal or rejecting his claim.

[18] As for the Applicant’s complaint under Ground (3) of the Board’s refusal to postpone his appeal hearing so as to accommodate his former assigned lawyer from DLS, it was a matter entirely within the Board’s discretion in case management, and in the absence of any evidence or suggestion that the Applicant had as a result been so prejudiced, and also for the same reasons given as above, I do not find this ground would assist the Applicant’s case or that it is reasonably arguable for his intended challenge either.

[19] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

[20] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

8.  In the Notice of Appeal, the Applicant stated the following grounds of appeal -

“[The Applicant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

9.  The Applicant has failed to lodge skeleton argument in support his appeal in accordance with the directions of the Registrar of Civil Appeals given on 13 June 2022. Accordingly, he is deemed to have waived his right to have an oral hearing of the appeal, and the appeal shall be considered on paper only.

DISCUSSION

10.  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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.  Further, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board has been shown in the present case.

12.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 17 May 2022, and has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits and is dismissed, with no order as to costs.