Warnakulasuriya Carmel Manjula v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 390/2020

[2021] HKCA 966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2020

(ON APPEAL FROM HCAL NO 618 OF 2018)

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Before:  Hon Chu JA, Yau and S T Poon JJ in Court

Date of Judgment: 10 September 2021

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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.On 29 March 2021, this court (Hon Lam VP, Yau and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 12 August 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing her appeal from the decision of the Director of Immigration rejecting her non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.^[1] We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 15 April 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform Court of Final Appeal there is some error in my case. I am totaly disagree with the decision of authorities and Court because there were totally relay on news and post on web which is not real matter in acutual. Because its toward my life in my home land in Sri Lanka. I do not go back to Sri Lanka because my life in danger in my home country in Sri Lanka.” [sic]

4.The applicant lodged a written submission in support of the application on 29 April 2021.  In those submissions, she reiterated her previous arguments before us on the substantive appeal as to lack of assistance with her claim and as to alleged discriminatory policies of disposing of non-refoulement claims as soon as possible, resulting in procedural unfairness. 

5.In paragraph 5 of the written submission, the applicant states that the Board acted in a procedurally unfair manner by failing to properly assess her credibility.  However, she did not provide any details or particulars in support of this argument.  In any event, this was an argument that should have been but was not raised in the application for leave to apply for judicial review, nor was it raised before us on the substantive appeal. 

6.In addition, the applicant argued for the first time that the Board acted in a procedurally unfair manner by:

(a)  unlawfully fettering its discretion by refusing her appeal due to not satisfying the requirement;

(b)  issuing a decision that is unreasonable or irrational; and

(c)  finding that her credibility was questionable despite her having answered all questions honestly.

7.This Court will not entertain any grounds for judicial review or appeal which could and should have been but were not raised in the judicial review application or at the substantive appeal.  Moreover, there is no merit to the Applicant’s argument on credibility as credibility was not in issue in her claim.

8.The applicant’s submissions fail to engage with the reasons given in our judgment dismissing her appeal and do not raise any discernible or arguable ground for disturbing our judgment.  The matters raised in the Notice of Motion and written submissions fail to pinpoint any specific error in our judgment or the judgment of the court below.

9.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters she has raised.  

10.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.For these reasons, the Notice of Motion dated 15 April 2021 is dismissed.

The applicant acting in person