Hattanage Moleen Ramani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 146/2024, [2024] HKCA 858

On Appeal From [2023] HKCFI 976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 146 OF 2024

(ON APPEAL FROM HCAL NO 1405 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 5 April 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 17 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Sri Lanka born in 1962.  She first entered Hong Kong as a visitor on 7 August 2004 and was permitted to remain until 6 September 2004.  The applicant overstayed and was subsequently arrested by the police on 25 September 2006 for using an identity card relating to another person and breach of condition of stay.  On 12 January 2007, the applicant lodged a torture claim to the Immigration Department.  She subsequently made a non-refoulement claim by way of written representation dated 12 September 2013.  The applicant’s claim was made on the basis that if she returned to Sri Lanka, she would be harmed or killed by underworld gangsters, members of the police and members of the Sri Lankan Army for the purpose of extracting information about her deceased cohabitant, Hewagamage Sunil, (“Sunil”), who was closely linked to the United National Party.  The factual background of the applicant’s claim was set out at [9] to [39] of the Board’s decision dated 17 May 2019.

3.By notice of decision dated 26 July 2013, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against her.

4.By notice of decision dated 30 May 2018, the Director further assessed the applicant’s claim in relation to the remaining applicable risks and determined it against her. Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] 

5.The applicant appealed to the Board against the Director’s decision dated 30 May 2018.  An oral hearing was held on 30 January 2019, during which the applicant gave evidence and answered questions from the Board.  The Board found that the applicant’s case consisted mainly of bare assertions and hearsay with no objective proof.  Having considered all the circumstances of the case, including that the applicant claimed she and Sunil were in a relationship for many years, the Board considered that the vagueness and inconsistencies in her account undermined the applicant’s overall credibility.  The Board found that the applicant’s knowledge of Sunil’s involvement in the political party was vague and shallow as she knew nothing aside from that Sunil had worked closely with the minister.  The applicant could not specify how rich and influential he was aside from his Mission Lane properties, and that central aspects of their relationship were also vague and inconsistent.  It further found that it was implausible for Sunil to send the applicant to work as a domestic helper in various countries if he were so rich and powerful, for Sunil to not finance the rebuilding of the applicant’s burnt down family house, or for Sunil’s enemies to still be interested in the applicant more than 18 years after Sunil was killed given that they would have unveiled Sunil’s wealth or assets during that time.  Overall, the Board found that the applicant not to be a witness of truth and rejected her evidence.

6.As the Board did not find any of her allegations of threats and harm from the gangsters, police or army to be credible, it considered there was in fact no real risk of harm if the applicant returned to Sri Lanka.  In any event, the Board also found that the applicant would receive state protection, if needed, and internal relocation would be viable according to the applicant’s account of events.

7.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Sri Lanka.  By its written decision dated 17 May 2019, the Board dismissed the applicant’s appeal and confirmed the Director’s decision dated 30 May 2018.

The Judge’s decisions in the court below

8.On 23 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 17 May 2019.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply annexed the Board’s decision dated 17 May 2019.

9.The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 5 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13], [16] to [22] of the Form CALL-1 as follows:

“ 13.  The Board recapped the applicant’s claim [9]-[39] and summarized her oral testimonies [40]-[44]. Having considered the evidence and the country of origin information (“COI”) [66]-[76], the Board found that the applicant’s case consisted of bare assertions and hearsay information with no objective proof [78]; that the vagueness and sheer number of inconsistencies undermined her overall credibility [79]-[92]; and that internal relocation was a viable option [99]-[100].

…

16.  The applicant has raised no specific ground in support of her application.

DISCUSSION

17.  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).

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

19.  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.’

20.  For the reasons given in paragraph 13, the Board rejected her evidence.

21.  The applicant has raised no valid ground to challenge the Board’s Decision.

22.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to this Court

10.On 16 April 2024, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that the Judge did not consider her judicial review, the Board did not give a correct decision and its decision was wrong. 

11.The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

12.The applicant has lodged written submissions in which she merely repeated the basis of her non-refoulement claim and complained that the Director and the Board did not give her justice, and that the Judge did not grant her leave for judicial review.

Discussion

13.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it concluded that the applicant was not a witness of truth and it did not accept her evidence.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

15.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.    

16.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person

[1]  [2023] HKCFI 976.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).