Kandana Arachchige Dayal Dilruk Kumara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 274/2022

[2022] HKCA 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 274 OF 2022

(ON APPEAL FROM HCAL NO 1119 OF 2019)

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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 18 July 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 7 July 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 July 2017.

BACKGROUND

2.The Applicant is a national of Sri Lanka. He entered Hong Kong as a visitor on 19 August 2005, and was permitted to stay until 18 September 2005. He did not depart from Hong Kong upon the expiry of his limit of stay, and was arrested by the Police on 26 July 2008. On 31 July 2008, he lodged a torture claim, which was later treated as a non-refoulement claim upon the commencement of the Unified Screening Mechanism. The basis of his claim was that, if refouled, he would be harmed or killed by members of a political party known as United National Party (“UNP”) because he was a member of a rival political party known as People’s Alliance (“PA”). Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form ([2022] HKCFI 1823).

3.By a Notice of Decision dated 14 July 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board. On 21 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-11 of the CALL-1 Form, as follows:

“[9] The Board considered the submissions filed by the parties for and after the oral hearing. It also considered the applicant’s oral evidence at the hearing [16]. The Board examined the country of origin information on the elections and Sri Lanka’s treatments of returnees [53]-[58].

[10] The Board observed that the applicant’s claim primarily relied on a single incident happened during 2004 election [59]. It accepted the applicant’s version about the incident. Nevertheless, the Board found that the UNP members did not target the applicant specifically as the alleged incident occurred during a dispute over the posters [63]-[66]. It also found that the UNP members had no real intention to cause serious harm or even kill him [67]-[68]. Further, the applicant’s inconsistencies in the details about the move to other district undermined his credibility [71]-[75]. Insofar as the claim under BOR 5 risk, viz. risk that asylum [seekers] deported back to Sri Lanka are detained and persecuted on arrival, was concerned, the Board found that there was no evidence in support of such claim [77]-[80]. Meanwhile, the letter from a Justice of Peace in Sri Lanka, stating that the applicant would be in danger if refouled, was found to be self-serving and added nothing to the applicant’s claim [81]-[85].

[11] Based on the aforesaid findings, the Board found that the applicant’s non-refoulement claim was unsubstantiated and rejected his claim. The applicant’s appeal was therefore dismissed.”

THE JUDGE’S DECISION

5.On 26 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

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

“[13] In his affirmation in support of his application, the applicant said he has life risk in his country. His enemy will kill him if he is found. He would obtain further evidence for his case.

DISCUSSION

[14] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

[15] The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

[16] In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

[17] There is no valid ground from the applicant to challenge the Board’s Decision.

[18] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[19] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

7.In his Notice of Appeal dated 18 July 2022, the Applicant put forward the following ground(s) of appeal:

“I am writing this grounds regarding my judicial review dismissed by High Court, but I am not satisfied in this decision, because during my past I gave my supporting document regarding my problem but it was disregarded by petition team. Still I have problem if I go at this time. My life become uncertain when my oral hearing I will explain”.

8.In his written submissions dated 20 September 2022, the Applicant stated that he still had problems in his home country, and alleged that the government of Sri Lanka abused the law, worked for the ruling party members, carried out mass arrests and killed peaceful protesters. The Applicant failed, however, to point to any alleged error in the decision of the Judge.

9.At the hearing of the present appeal, the Applicant stated that, in view of the current situation in Sri Lanka, he could not return to his home country.

DISCUSSION

10.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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, 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 is 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 7 July 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.

The Applicant, acting in person