DANGALLA APPUHAMILAGE MAHESH P.D. v TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 199/2023, [2024] HKCA 5

On Appeal From [2023] HKCFI 1534

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2023

(ON APPEAL FROM HCAL NO 1109 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 15 June 2023, by which the Deputy Judge, inter alia, refused to grant the applicant leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 1534).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 May 2021 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

3.  The applicant is a national of Sri Lanka. He last entered Hong Kong on the strength of his Sri Lankan passport with a false identity and was allowed to remain in Hong Kong as a visitor until 16 July 2003. He then overstayed in Hong Kong since 17 July 2003. He was then arrested by the police on 30 March 2004. On 15 November 2004, he raised a torture claim, which was subsequently rejected by the Director on 26 October 2012 and the subsequent appeal was dismissed by the Board on 18 June 2014. On 11 January 2013, he lodged his non-refoulement on the basis that, if refouled, he would face risk of harm from Ranjith and Jothi and their affiliates or gang members. He also feared that he would be arrested, detained or tortured by the Sri Lankan Police, the Terrorist Investigation Department (“TID”), and / or Criminal Investigation Department (“CID”). Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [5] ‑ [15] of the Leave Decision.

4.  By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds other than torture risk[1], namely BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

5.  The applicant appealed against the Director’s Decision to the Board. He attended oral hearings before the Board on 3 October 2019, 25 October 2019, 6 January 2020 and 30 June 2020, during which both the applicant and the Director were legally represented. Having considered the evidence, the Board casted doubt on the applicant’s credibility. At the outset, the Board refused to accept the occurrence of an alleged kidnap incident, where the applicant said Jothi and his men forced three persons onto the applicant’s vehicle but later fled the scene when the police arrived, leaving the applicant to be charged for his kidnap incident. With regard to the alleged assaults suffered by the applicant, the Board also found that they were not supported by the magistrate’s notes dated 4 May 1998 while the applicant’s evidence on this also kept changing. The Board further refused to accept the applicant’s evidence on the involvement of his former employer Gamini in the alleged kidnap incident. The Board thus concluded that the applicant’s evidence was inherently inconsistent and that this claim lacked credibility. In any event, the Board noted that the alleged incidents happened some twenty years ago and based on the Country of Origin Information (“COI”), state protection would be available to the applicant. The Board also noted that the applicant had returned to Sri Lanka twice without any problems. Accordingly, the Board dismissed his appeal.

The Leave Decision

6.  On 6 August 2021, the applicant, through his legal representatives, applied for leave to apply for judicial review against the Board’s Decision. As summarised at [27] of the Leave Decision, the applicant raised the following grounds of review against the Board’s Decision (referred to as Grounds 1 ‑ 5 below respectively):

(1)  The Board adopted the wrong standard of proof in assessing the applicant’s claim. The Board erred in applying an unreasonably high standard of proof throughout her assessment of the applicant’s case.

(2)  The Board failed to consider all the evidence “in the round” in assessing the documentary evidence; alternatively, it failed to give any or any adequate reasons for the partial acceptance or non-acceptance of the documentary evidence submitted by the applicant.

(3)  The Board erred in arriving at the adverse credibility findings based on a flawed and irrational reasoning. The Board erred in relying on rejected documentary evidence to pick on inconsistencies in the applicant’s oral evidence.

(4)  The Board erred in the credibility assessment by over-relying on peripheral inconsistencies which did not go to the heart of the narrative. The Board failed to identify or consider any innocent cause for the inconsistencies and vagueness in the applicant’s oral evidence in light of all circumstances.

(5)  The Board failed to consider the grounds of appeal raised in the Notice of Appeal / Petition.

7.  The Deputy Judge heard the matter on 16 May 2023. The applicant was legally represented at the oral hearing.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [28] ‑ [71] of the Leave Decision. In essence, the Deputy Judge observed that:

(1)  Regarding Ground 1, although the applicant complained that the Board had deliberately disregarded parts of the documentary evidence which the applicant alleged were consistent with his claim, the Deputy Judge was of the view that the Board had already taken that part of the documentary evidence into consideration and that the weight given to it was a matter for the Board. It was also noted that the documentary evidence submitted to the Board was of poor quality, lacking in details and inconsistent with the applicant’s evidence so that it was open to the Board not to give any weight to it.

(2)  As to Grounds 2 ‑ 4, the Deputy Judge observed that where the tribunal had to make assessment of the evidence in its fact‑finding exercise, it had the discretion to make evaluation of the evidence before it and select such evidence that it considered relevant and reliable and rejects the other evidence which it finds unreliable. Accordingly, absent any public law grounds, the court would not interfere with the Board’s discretion. Further, the Board did not refuse to admit the documentary evidence but only gave no weight to the documentary evidence in support of the applicant’s claim because the evidence is inconsistent with, or even contradictory to, the applicant’s oral evidence. This supported the Board’s conclusion that the applicant’s evidence was not reliable. The applicant was also not able to refute the reasons given by the Board at paragraph 103 of the Board’s Decision for finding the applicant’s evidence incredible. The applicant’s complaints on these grounds failed.

(3)  Regarding Ground 5, the Deputy Judge again observed it was appropriate for the Board to hear the applicant’s evidence afresh instead of embarking on legal analysis of the appropriate ways of assessing the evidence. Accordingly, this ground also failed.

9.  Upon dismissing the application for leave to apply for judicial review, the Deputy Judge also ordered that the anonymity Order obtained by the applicant be lifted. Thereafter, there is no valid or extant anonymity Order in these proceedings.

The Appeal

10.  On 28 June 2023, the applicant acting in person filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“... the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

11.  Pursuant to the directions made by the Registrar of Civil Appeals on 12 October 2023 and the directions of this court on 19 October 2023, the applicant lodged his written submissions on 31 October 2023. In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim. The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision. He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly. It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case. More importantly, none of his submissions identified any error in the Leave Decision.

12.  We heard the appeal on 5 December 2023. A Sinhalese interpreter was present to provide language assistance. During the hearing, the applicant confirmed that he had nothing to add to his written materials.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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 the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  At the outset, all of the applicant’s allegations are vague, bare contentions. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.

16.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The Deputy Judge had thoroughly considered the grounds advanced by the applicant in his intended judicial review before coming to the conclusion that there was no error of law, procedural unfairness, Wednesbury unreasonableness or irrationality in the Board’s Decision. We see no basis to interfere with the Leave Decision.

17.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant appeared in person