BUDDADASAGE SUDESH JETHENDRA KUMARA v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITON OFFICE

CACV 520/2021

[2023] HKCA 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 520 OF 2021

(ON APPEAL FROM HCAL NO. 758 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  The appeal

1.  This is an appeal against the decision dated 10 November 2021 of Deputy High Court Judge K.W. Lung who refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 31 January 2019.

2.  Despite the directions of the Registrar of Civil Appeals of 10 January 2022 given to the applicant, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have his right to have an oral hearing waived, and have elected to have his appeal disposed of on paper. The hearing that was fixed for 15 March 2022 has been vacated. We will deal with the present application on paper based on the documents filed by the applicant.

2)  Background

3.  The applicant is a national of Sri Lanka.  He entered Hong Kong on 28 December 2012 without a valid passport. In March 2014, he made a non-refoulement claim by way of written representation, and in December 2015 he submitted a non-refoulement claim form[1]. The applicant’s non-refoulement claim was on the basis that if he returned he would be harmed or killed by Major Chandana Kaluaracchi of the Sri Lankan Army. The applicant claimed that the Major framed him for theft of weapons and uniforms[2].

4.  The details of the applicant’s claim have been summarized by the Judge at [5] of the CALL‑1 Form.

3)  The Director’s Decisions    

5.  The Director of Immigration (“the Director”) decided against the applicant’s claim on 23 December 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3 and BOR 2”), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicant appealed / petitioned against the Director’s Decisions to the Board on 17 January 2017.  After a hearing held on 17 December 2018, the Board dismissed the applicant’s appeal / petition against the Director’s decisions on 31 January 2019.

7.   The Board held that while it accepts that the applicant worked as a cleaner, and that he had helped the Major to steal petrol, it does not accept that the applicant was blamed for stealing weapons or clothing, and that he then needed to go into hiding for fear of his life.  The Board concluded that the applicant was not a witness of truth and that he had manufactured his claim[3]. The applicant’s evidence was confused and inconsistent[4]. The applicant failed to recall important and significant aspects of his claims[5]. The Board’s findings were not based on the inability of the applicant to recall specific dates, but on discrepancies and inconsistencies in relation to his account of experiences[6]. The applicant failed on all applicable grounds[7].

5)  Decision of the Judge

8.  The applicant filed a Form 86 with supporting affirmation before the Judge.

9.  The Judge assessed the applicant’s documents and held that the applicant submitted no valid ground to assist his application. Although the Board accepted part of the applicant’s facts, it had rejected the main facts to support his case.  The Judge could not find any error of law or procedural irregularity in the Board’s decision[8].

6)  Grounds of appeal

10.  Doing the best we can to read the applicant’s hand written notice of appeal and affirmation, the applicant stated in his notice of appeal that his ground of appeal was that his life would be in danger when he returns to his country.  In his affirmation, he stated that he needed a protective shelter for his life because of danger and uncertainty. He stated that he was seeking justice to protect his life. 

7)  Our view

11.  We will repeat the approach of this Court in dealing with cases of this nature:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was, otherwise, plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

13.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.