Elube Dewayalage Kusumalatha Weerathunga v. Toture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 504/2020

[2021] HKCA 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 504 OF 2020

(ON APPEAL FROM HCAL NO 2411 OF 2018)

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Before:  Hon Lam VP, Yuen JA and Lok J in Court

Date of Hearing:  7 June 2021

Date of Judgment:  15 June 2021

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J U D G M E N T

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Hon Lok J (giving the Judgment of the Court):

Introduction

1.On 27 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 24 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 October 2016 rejecting the applicant’s non-refoulement claim.

2.On 23 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision, after Deputy High Court Judge Bruno Chan on 10 September 2020 granted an extension of time to appeal within 14 days of that date.

Background

3.The applicant is a Sri Lankan national.  She arrived in Hong Kong on 21 May 2011 and was employed as a domestic helper until her contract was prematurely terminated on 25 June 2011. She did not depart and has overstayed.  On 11 September 2015 she surrendered to the Immigration Department. The applicant lodged her non-refoulement claim on 23 May 2016.

4.The applicant’s claim was based on the fear that, if she returned to Sri Lanka, she would be harmed or even killed by her husband and/or his creditor Mahinda with whom she previously had an affair.  The factual background was set out at paragraphs 8 to 23 of the Board’s decision.

5.By notice of decision dated 31 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3] and BOR 2 risk[4].

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 28 February 2018 and on 17 August 2018, during which the applicant gave evidence.  The Board found that none of her claims were credible, due to her evidence at the hearing on the important aspects of her claim being completely inconsistent with her previous statements.  When pressed for detail on these claims, the applicant was unable to provide details to the Board or further contradicted her previous claims.

7.As a result, the Board rejected the applicant’s entire claim.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Therefore, the Board dismissed the applicant’s appeal on 24 October 2018 on all the applicable grounds.

Decision of the court below

8.On 31 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In her affirmation in support of her Form 86, the applicant deposed that the Board did not give her time to obtain her supporting document.

9.Following a hearing on 30 August 2019 at which the applicant appeared in person before the Judge, on 27 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [14] of the Form CALL-1 ([2020] HKCFI 1658, HCAL 2411/2018) as follows:

“11. The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

12. The Board did not accept her evidence on the facts of her case. There is no factual basis in support of her application.

13. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 held:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. …”

14. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

Appeal to this Court

10.On 23 September 2020, the applicant filed her Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, she stated that her enemies belong to the ruling party and can do any harm to her life if she returns to her country, and that her life is in danger and became uncertain.  She also stated that she submitted her supporting documents but they were disregarded.  She asked for an oral hearing to properly explain her situation.

11.Pursuant to the Court’s directions of 14 April 2021, the applicant lodged her written submissions on appeal on 11 May 2021. In those submissions, the applicant requested an oral hearing to properly explain her situation and the danger she would face if she were to return to her country.  She stated that it is very difficult to get justice in her country because there is no police commission, no election commission and no bribery commission.

12.The applicant also submitted with her written submissions a letter from the chief incumbent of a Buddhist temple in Sri Lanka dated 7 April 2021, in which the chief incumbent stated that they were aware that Mahinda had made death threats to the applicant.  The chief incumbent also referred to an incident on 15 August 2020 in which Mahinda attacked one of the applicant’s brothers, and that her mother had gone into hiding elsewhere and that Mahinda wished to kill her entire family.

13.However, the applicant did not provide any details or particulars as to any specific errors by the Board or the Judge.

Legal principles

14.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.As mentioned earlier, the applicant did not in her Notice of Appeal or submissions identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.

16.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding as to the applicant’s credibility and its rejection of the applicant’s entire factual account.  As such, the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

18.As for the more recent events stated in the supporting letter dated 7 April 2021, that occurred after the Board’s decision. The applicant, must satisfy the requirement of section 37ZG(3) of the Immigration Ordinance (Cap 115) before her claims can be assessed on such new events: see Re: Sudimah [2019] HKCA 1030; Ram Chander v Director of Immigration [2018] HKCA 585.  Hence, these matters cannot constitute the basis for this Court to reverse the Board’s decision.

19.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.For these reasons, this appeal is dismissed.

The applicant acting in person