Re Dissanayake Mudiyanselage Siriya Dissanayake

CACV 340/2021

[2021] HKCA 2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 340 OF 2021

(ON APPEAL FROM HCAL 2981 OF 2018)

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Before:  Hon Au JA and Lisa Wong J in Court

Date of Judgment:  31 December 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”)  against this court’s judgment dated 20 October 2021 ([2021] HKCA 1534)  (“Judgment”), dismissing the applicant’s appeal from the decision dated 29 June 2021 ([2021] HKCFI 1810)  by Deputy High Court Judge P Li, refusing her leave to apply for judicial review of the decision dated 14 December 2018 of the Torture Claims Appeal Board (“Board”)  concerning her non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directions, the notice of motion shall be determined on paper without an oral hearing.  We agree that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”)  or the CFA from any civil judgment of the CA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.In seeking leave to appeal to the CFA, the applicant first asserted in the notice of motion filed on 28 October 2021 (sic):

“I would like to tell in this ground regarding my appeal was rejected by appeal court because I was unable to submit my further supporting document in time and I dont found any error in this decision but still I have life threaten by my enemies to my friend also. after they come and make trouble and ask about me and Jayantha and she report to the police but never taken any action against them. before my oral hearing I will try my best to obtain and submit to court as soon as possible. I always think to protect my life and live peacefully that I need Therefore I request relief for my life Thank you.”

5.Second, pursuant to Practice Direction 2.1, on 10 November 2021, the applicant lodged written submission, by which she asserted without giving particulars (1) that the rules of her country were not suitable for people like her; (2) that nobody will help poor people and Christians like her; (3) that her life in Sri Lanka would be uncertain and troubled; (4) that she had encountered many troubles and was tortured and was injured but could not seek justice from the Sri Lankan authorities; (5) that the police took no action after they took a statement from her because her enemies had bribed the police who closed the file; and (6) that her enemies always try to frame for a murder committed by Jayantha (using the abbreviations adopted in the Judgment).

6.The applicant also attached the following 3 copy documents to her written submission: (1) a letter dated 6 November 2020 by a resident doctor of the Department of Psychiatry of the Kowloon Hospital to the effect that she is suffering from depression; (2) an extract dated 11 August 2013 from the information book of the National Hospital Police Station (printed entirely in English)  containing the applicant’s statement (written wholly in English)  about a confrontation with Sameera’s brother in her house on 10 August 2013; and (3) a cash receipt dated 3 November 2021 for 50 rupees (collectively “New Documents”).

Discussion

7.In our view, the applicant has not, by her notice of motion or written submissions raised, any issue for determination by the CFA, whether of great, general or public importance or otherwise.

8.Nor do we see any scope to grant leave under the “or otherwise” limb.

9.As observed in [14] to [17] of the Judgment:

(1)  The Court of First Instance (“CFI”)  will intervene with a decision of the Board by granting leave for judicial review if the non-refoulement claimant can point to an error of law, procedural unfairness or irrationality by the Board whereas the CA will reverse a refusal of leave if the claimant can advance a ground of appeal showing that the CFI judge has erred in law or omitted to consider a relevant matter or was otherwise plainly wrong.

(2)  The applicant pursued the leave application before the Judge and the appeal before us on the single basis that she would face harm if refouled to Sri Lanka.

(3)  Such basis is inconsistent with the finding of the Board.  Yet, the applicant had not identified any error of law, procedural unfairness or irrationality in the making of such adverse finding against her.  Nor had she raised any ground of appeal that was premised upon the Judge having committed any error in law or omitted to consider any relevant matter or being otherwise plainly wrong.

(4)  That being the case, leave was rightly refused by the Judge and the appeal against such refusal should be dismissed.

10.The applicant has made utterly no attempt to engage our reasons for dismissing her appeal.  At the risk of stating the obvious, the mere repetition of the alleged harm underlying the rejected NRF Claim is of no value to the question of leave to appeal.

11.As for the New Documents, they are plainly inadmissible.  An application for leave to appeal to the CFA is not an occasion for fresh evidence to be adduced, particularly when there had been ample opportunity for such evidence to be produced at the earlier tiers of the decision-making process: Re Kayani Muhammad Saleem [2018] HKCA 903 at [4].  As mentioned in [15] of the Judgment, the CA will not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall [1954] 1 WLR 1489 are met.  In this connection, the applicant has not explained why the new Documents could not have been obtained earlier with reasonable diligence or how any of them would have had an impact on whether she should be afforded non-refoulement protection.

12.As neither of the statutory criteria under s 22(1)(b)  for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person