Hemba Waduge Nishantha Janaka Kalyanarathna v. Torture Claims Appeal Board

CACV 446/2022

[2023] HKCA 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 446 OF 2022

(ON APPEAL FROM HCAL NO 176 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 8 November 2022, the Applicant filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 28 October 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 24 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 April 2017 rejecting his non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Sri Lanka. He last arrived in Hong Kong on 14 September 2005 as a visitor with permission to remain up to 16 September 2005. He did not leave Hong Kong after the expiry of his limit of stay and overstayed. He was arrested by the Police on 5 October 2005. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Sri Lanka, he would be harmed or killed by a person named Chaminda, who was a member of a political party known as United National Party (“UNP”), over disputes arising from activities that he had carried out for a rival political party called Janatha Vimukthi Peramuna (“JVP”), and/or by the Sri Lankan authorities for failing to attend a court hearing over a false charge brought by Chaminda against him. Details of the Applicant’s claim were summarised by the Judge at §§1-8 of the CALL-1 Form.

3.By a Notice of Decision dated 19 April 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the 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 24 December 2018, 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 §12 of the CALL-1 Form, as follows:

“In its decision the Board found the Applicant’s evidence as to his dispute with Chaminda and his subsequent arrest by police and the pending court action against him vague, evasive, inconsistent and conflicting with those given earlier by him to the Director that it doubted the credibility of his claim of fear of harms from Chaminda or the authorities that caused him to leave his country for Hong Kong, which was further undermined by his failure to raise his claim upon his first arriving in Hong Kong until his arrest by the police several weeks later and his subsequent failure to report on his recognizance or to proceed with his claim until more than 6 years later when he was again arrested by police, and that it concluded that he had fabricated his such claim to create a basis for his application for non-refoulement protection that it failed on all applicable grounds.”

THE JUDGE’S DECISION

5.On 18 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, he just stated that he was not satisfied with the decision without putting forth any proper ground for his intended challenge.

6.On 28 October 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 139 - 162 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[16] Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim of fear of harm from Chaminda if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[17] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

7.In his Notice of Appeal dated filed 8 November 2022, the Applicant put forward the following ground(s) of appeal (sic):

“I would like to tell regarding my refoulement case was rejected but I am not satisfied because still I have problem and I gave my supporting document proof during my interview but all disregard, I will explain all in my oral hearing and submit all supporting document to honourable judges.” [sic]

8.In his 2-page written submissions, the Applicant said that he did not have any solicitor or representative as an asylum seeker, and he did not have any income to pay for a lawyer as he could not work. He requested for more time for his documents to be translated into English. He also said that he would have problem and his life would be in danger if he were to go back to his home country.

9.At the hearing of the appeal, the Applicant said that there was no safety in his home country, because the former president had left the country and there was a new president. His problem still existed as the UNP was in power. His life would be in danger. His enemies had come to his house to look for him. There were many murders, and there was no proper law and order in his 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 show any error in the Judge’s decision of 28 October 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