Re Niwunhelle Herath Mudiyanselage Priyani

CACV 9/2024, [2024] HKCA 370

On Appeal From [2024] HKCFI 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 9 OF 2024

(ON APPEAL FROM HCAL NO. 1155 OF 2019)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 4 January 2024 in which he refused to grant leave to her to apply for judicial review.

2)  Background

2.The applicant is a national of Sri Lanka.  She first entered Hong Kong as a foreign domestic helper in September 199.  She overstayed and was deported in 1993.  She returned to Hong Kong in January 2015 illegally and remained in Hong Kong until she surrendered on 24 April 2015^[1].  She made a non‑refoulement claim by written representation on 31 December 2015^[2].

3.The basis of the applicant’s claim is that she would be harmed or killed by Jeewantha and Mohammed (who claimed to be from the United National Party) because of the applicant’s default on an outstanding loan of USD$50,000 borrowed from a private lender^[3].

4.The applicant has two daughters who are both adults and married.  She was in 2006 and 2008 in the business of job‑placement services for overseas workers in some parts of Asia, and procurement of employment in Australia.  She had cash flow problems with her business and she borrowed money from Jeewantha who was a rich and influential proprietor.  There was no written agreement nor collateral and she was required to repay in six months.  Jeewantha told the applicant that five of his friends and relatives and himself wanted to go to Australia as ship workers.  The applicant met a person called Rana in Singapore who was also in the business of sending people to Australia for work. Jeewantha agreed to settle the applicant’s debt in exchange for him and his colleagues to get to Australia for work.  Rana did the visa arrangements and told the applicant that he had ship crew visas ready for them to work until 2016.  In May 2013, Jeewantha and his people and the applicant flew to Singapore to meet Rana.  Jeewantha paid Rana for the cost of travel and fees.  Rana later told them that there was some problem which was not specified and they could not board a plane to Australia, but Rana said he would arrange something else.  Later, Rana emailed the applicant certain documents that seem to be genuine documents except for one document, a purported statement from the Australian government authorizing to Board which was not genuine.  The applicant spent months trying to locate Rana in Singapore and Malaysia but in vain, and she concluded that she had been scammed.  Jeewantha then threatened the applicant’s daughter by going to her house.  Jeewantha also went to the applicant’s house one night and shouted and yelled that the applicant stole his money.  Jeewantha and his followers threw stones at the house and broke windows.  They were about to break in but a neighbour intervened and they left.  The applicant was scared and decided to stay at a friend’s place for some time to arrange to go to China.  The applicant eventually arrived in Hong Kong.  She said she did not seek non-refoulement first thing because she did not know the law^[4].

5.The background facts have been summarized in the decision of the Judge at [5] to [7].

3)  The Director’s Decision

6.The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 1 December 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution^[5] (‘the Director’s Decision’).

4)  The Board’s Decision

7.The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 15 December 2017.  After a hearing held on 17 January 2019, the Board dismissed the applicant’s appeal on 25 April 2019 (‘the Board’s Decision’).

8.The Board found that the applicant’s key aspects of her claim was not reliable, and that the account of events on which her non-refoulement claims were based was not credible.  The Board formed the view that the applicant was willing to adjust and adapt her evidence to reconcile otherwise inconsistent statements.  At other times she gave vague and general responses.  The Board accepted some basic facts about the applicant’s claims, but for other claims, given that she was an unreliable witness, and in the absence of any credible corroborating evidence, the Board did not accept that she had outstanding debt to a private money lender and her role in the failed attempt to send a group of men to work in Australia.  The Board did not accept that the applicant borrowed a large sum of money from a private lender and that she had not repaid.  It did not accept that she acted as an agent for a failed arrangement to send a group of Sri Lankans to work in Australia that caused them to lose money.  It did not accept that these people threatened to harm the applicant or his family.  The Board did not accept that the applicant was a subject of adverse interest to the law enforcement of Sri Lanka^[6].

5)  Decision of the Judge

9.The applicant filed her Form 86 which stated that ‘because I have big real risk with my enemies they are very dangerous people at this moment I cannot [afford] to face them’.  Her affirmation in support of the application stated that she could not submit her supporting document during her interview and she would try her best to get documents from her home country^[7]. 

10.The Judge held that the applicant had not provided any valid reason to challenge the Board’s Decision.  There was no error of law or procedural unfairness in the Board’s Decision.  The applicant has no realistic prospect of success in the intended judicial review application^[8].

6)  Grounds of appeal

11.The applicant in the notice of appeal stated the following in summary :

‘ 1. The Director, Adjudicator and the Court had failed to take such argument into account or failed to give sufficient weight to such argument.

2.  The Director’s Decision failed to give sufficient weight to state acquiescence.

3.  The Adjudicator failed to make sufficient enquiries.

4.  The Adjudicator did not give sufficient chance to the applicant to arrange for relevant evidence.

5.  The Director’s Decision used country of origin information which suited his pre-conceived conclusion.’

12.The applicant in her written submission cited case authorities that are used in non-refoulement proceedings without specifying how they relate to the applicant’s case.

13.The applicant submitted to us orally that she has health problems.  She asked for some more time to stay in Hong Kong.  She said her daughter in Sri Lanka will sell her house and when the transaction is completed in October 2024 she would be able to repay her debt and return to Sri Lanka. 

7)  Our view

14.We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

15.It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.

16.We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person