Re Bakmeewewa Palitha Bandara

CAMP 431/2022, [2023] HKCA 913

On Appeal from [2022] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 431 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 33 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 17 March 2022[1] which dismissed his application for leave to apply for judicial review.

2.The applicant has filed an affirmation and also put in a written submission to support his application.  

3.Under Order 59 rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of the Director of Immigration (“the Director”)  which rejected his non-refoulement claim.

5.The applicant is a national of Sri Lanka aged 52.  He entered Hong Kong on 7 March 2004 using a false identity and was given permission to remain as visitor for 30 days.  He overstayed and was arrested by the police on 3 January 2010.  He was convicted and sentenced to ten months’ imprisonment for making false representation to immigration officers and breach of condition of stay on 28 January 2010.  The applicant raised a torture claim[2] on 10 February 2010, which was rejected by Director on 20 January 2014.  Upon the implementation of the Unified Screening Mechanism, he raised a non-refoulement claim on 7 July 2014 based on his fear of being harmed or killed by his political enemies from the United People’s Freedom Alliance (“UPFA”)  due to his affiliation with the United National Party (“UNP”).  The background and details of the applicant’s claim were set out in the decision of the Director at [8].  We will not repeat them.   

6.By a notice of decision dated 30 November 2017, the Director rejected the applicant’s claim which covered the BOR 3 risk[3], persecution risk[4] and the BOR 2 risk[5] grounds.  There was no assessment under the torture risk ground in view of the rejection of his previous torture claim.

7.The applicant appealed the Director’s decisions to the Board.  A hearing was held on 9 October 2018, during which the applicant elected to give evidence and answered questions put by the Board.  By its decision dated 16 November 2018, the Board dismissed the appeal.  The Board considered and discussed the applicant’s evidence at length at [28] to [60] of its decision.  Having regard to the significant discrepancies in his evidence and with his account given to the Director and the country of origin information, the Board was not satisfied that he was truthful in respect of central aspects of his claim.  The Board while accepted he was a member of UNP, did not accept he “had any actual or imputed profile as being involved in any way in any activities of the UNP, or with any high-profile politicians linked to any party”[6], and that former ordinary UNP supporters like the applicant who had no political involvement for lengthy period faced or would face any risk of politically motivated harm in Sri Lanka.  It further did not accept the applicant’s account of being assaulted, threatened, harmed, targeted in the past or was being pursued, or his mother being threatened with harm, personally or in connection with him.  The Board was thus not satisfied that the applicant would face a real chance of harm of any kind in Sri Lanka.  It concluded that he failed to establish the factual basis of his claim and entitlement to non-refoulement protection under any of the applicable grounds.

8.On 4 January 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not provide any grounds for relief, other than stating in his supporting affirmation that he did not wish to return to Sri Lanka.  He also exhibited medical reports and certificates which showed that he was hospitalised previously due to renal stone/urinary tract stone.

9.The judge considered the application on paper as the applicant did not request an oral hearing.  By a Form CALL-1 dated 17 March 2022, the Judge refused the application for the reasons he gave in [9] to [14] as follows: 

“9. … It is therefore clear that whatever health problem that he might have at that time has since been resolved, and in any event given its nature even if it were still an outstanding issue that it could not in my judgment be accepted as a valid ground for his intended challenge of the Board’s decision. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. 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 28 – 60 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.

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

13. 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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  Between 7 March and 11 April 2022, the High Court registry was closed due to the public health situation caused by Covid-19.  Consequently, the time for the applicant to lodge an appeal against the Judge’s decision only expired on 12 April 2022[7]. 

11.By a summons filed on 14 April 2022, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge held a hearing on 28 September 2022.  By his decision handed down on 12 October 2022[8], the Judge refused the application. 

12.On 18 October 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his leave application.

13.In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted. 

14.The applicant was late by two days[9] which is a short delay.  The applicant explained in his affirmation filed in the court below that he was not able to file his appeal due to the closure of the court registry.  Like the Judge, we are prepared to accept his explanation.  We turn to consider the merits of the intended appeal.

15.In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  Relevantly, 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.  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.

16.In the present case, the applicant stated in his supporting affirmation and similarly in his written submissions that he was deprived of the opportunity to put forward the merits of his appeal as the Judge had not requested further documents and information from him.  He also asserted that his claim has a realistic chance of success, while stating at the same time that he was ignorant of court procedures due to lack of legal representation.

17.For the following reasons, we are not satisfied that the applicant’s intended appeal has merits:

(1)  It is incorrect that the applicant did not have the opportunity to explain the merits of his intended appeal.  The Judge had listed his application for extension of time for an oral hearing on 12 October 2022, during which further information regarding his claim was sought from him.  The applicant claimed he was still having problems in Sri Lanka and he cannot return home.  It would be open to him to provide further supporting information or documents, had he wanted to. We also note that the applicant has given no indication or details of the materials or information that he would like to furnish to the court but did not have the chance to do so.   

(2)  Critically, the applicant has not pointed to any error in the Judge’s refusal to give leave to apply for judicial review. His assertion that he has a realistic chance of success is just a bare assertion unsupported by any particulars, which is insufficient to demonstrate that his intended appeal has a reasonable prospect of success.

(3)  The complaint of lack of legal representation is a new ground that was not raised in his application for leave to apply for judicial review.  An appeal is not the occasion to introduce new grounds after the original grounds failed at the court below: see Re Qadir Sher [2018] HKCA 160 at [11]. 

(4)  In any event, the applicant had the assistance of the Duty Lawyer Service at the initial stage of his non-refoulement claim with the Director.  It is trite that the high standards of fairness do not mean that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see for instance Re Paswan Shibu Lal [2018] HKCA 249 at [21].  The provision of free legal assistance by the Duty Lawyer Service at the hearing before the Board and legal aid by the Director of Legal Aid in judicial review proceedings is on a merits and case-by-case basis.    

(5)  We have separately considered the Board’s decision.  We also do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success.

18.As the applicant’s intended appeal against the Judge’s decision has no prospect of success, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 18 October 2022.

The applicant, unrepresented, acted in person.