Case Detail

CACV 531/2018

[2019] HKCA 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2018

(ON APPEAL FROM HCAL NO 1498 OF 2018)

________________________

BETWEEN
	NONIS PATTINI KUTTIGE SAMPATH THUSHARA	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Kwan VP, Poon JA and Au JA

Date of Written Submission:	4 April 2019
Date of Judgment:	31 May 2019

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the judgment of the court):

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 18 March 2019 ([2019] HKCA 336), dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2. By a Notice of Decision dated 10 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3. The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 12 July 2018.

4. He filed a Form 86 on 30 July 2018 to seek leave to apply for judicial review in respect of the decision of the Board. His application was refused by Anthony Chan J on 15 October 2018.

5. The applicant filed a Notice of Appeal against the decision of the judge on 26 October 2018. The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 12 December 2018. The appeal was dealt with on paper. It was dismissed by the Court of Appeal on 18 March 2019 as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

6. The applicant filed a Notice of Motion on 25 March 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 4 April 2019.

7. In the Notice of Motion, the applicant stated that:

(1)   there is some error in law in the decision;
(2)   decision maker just relied on COL [sic] information;
(3)   he requested the court to “retest” his fact to protect his life as he never got any oral hearing or any opportunity to explain his problem, and he now submits supporting document regarding his problem.

8. In his written submissions, the applicant submitted that there is no judicial system in his home country being Sri Lanka and that his life will be harmed and he attached 4 pages of documents, namely:

(1)   a letter purportedly issued on 18 December 2018 by Dr Kavinda Jayawardena, a member of Parliament, certifying that the applicant is an active supporter of the United National Party;
(2)   a purported police report dated 21 August 2018 notifying the applicant to report to police station as soon as he returns to Sri Lanka; and
(3)   an article entitled “UN Torture Prevention Body to Advise Sri Lanka on Implementation of Treaty Obligations” dated 2 April 2019.

9. The applicant did not take out a summons to apply for leave to adduce further evidence being those documents attached to his submissions.

10. Although the Court of Appeal has the power to receive further evidence, pursuant to Order 59 Rule 10(2) of the Rules of the High Court, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. Further evidence is admissible on an appeal only where such evidence satisfies these three conditions: (i) it could not have been obtained at the trial with reasonable diligence; (ii) it would or might, if believed, have a very important effect on the mind of the tribunal; and (iii) it is of a sort which inherently is not improbable (Ladd v Marshall [1954] 1 WLR 1489 at 1491).

11. The article entitled “UN Torture Prevention Body to Advise Sri Lanka on Implementation of Treaty Obligations” appeared to be published after the date of the judge’s decision. It stated that “apreliminary assessment of the information received indicates that there are reasonable grounds to believe that [illegible] unlawful abductions and detention and of torture…and that such practices might be continuing in northern Sri Lanka”. However, the applicant’s family home is in Ja Ela, a suburb of Colombo in the Western Province, which is in the southern part of Sri Lanka. This further evidence is far from sufficient for establishing the applicant’s case for the purpose of obtaining leave to apply for judicial review. It is not likely to have a very important effect on the mind of the tribunal.

12. As for the remaining documents, since the applicant’s non‑refoulement claim was made back in 2013 and the whole process of assessment of his claim lasted several years, supporting documents could have been obtained and adduced before the judge with reasonable diligence.

13. The further evidence sought to be adduced plainly does not satisfy the first two conditionsin Ladd v Marshall. The applicant also failed to establish that there are any exceptional circumstances in his case which justify that such further evidence should be admitted in the interests of justice. Leave to adduce such further evidence attached to the applicant’s submissions is refused.

14. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 27 March 2019 that the Notice of Motion shall be determined on paper only without an oral hearing. We think it appropriate to adopt this course. This application shall be determined on paper.

15. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

16. The applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). The grounds stated in the notice of motion and the applicant’s written submissions do not constitute any viable grounds for granting leave to appeal to the Court of Final Appeal. There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

17. We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)	(Jeremy Poon)	(Thomas Au)
Vice President	Justice of Appeal	Justice of Appeal

The Applicant, acting in person

CACV 531/2018

[2019] HKCA 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2018

(ON APPEAL FROM HCAL NO 1498 OF 2018)

________________________

BETWEEN
	NONIS PATTINI KUTTIGE SAMPATH THUSHARA	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/ NON‑REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Kwan JA, Poon JA and Au JA

Date of Judgment: 18 March 2019

________________________

J U D G M E N T

________________________

Hon Kwan JA (giving the judgment of the court):

1. This is the applicant’s appeal against the decision of Anthony Chan J on 15 October 2018. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2. The applicant is a national of Sri Lanka who arrived in Hong Kong on 1 February 2005. He was arrested by the police on 5 November 2006 for overstaying and was referred to the Immigration Department on 7 November 2006. He made a torture claim on 8 November 2006.

3. The basis of his claim is that he would be tortured or killed by members of a rival political party, the United People’s Freedom Party (“UPFA”), if he were to be returned to Sri Lanka as he is a supporter of the United National Party (“UNP”). His torture claim was rejected on 30 November 2012.

4. He applied for non-refoulement protection on 20 March 2013. In addition to the threat described in his torture claim, the applicant asserted that he had been threatened by underworld gangsters associated with the UPFA members and that the police will target him because they believe that he is a gangster as he had served under a gang leader.

5. The applicant had also applied for leave to seek judicial review regarding the rejection of his torture claim under HCAL 17/2013. The leave application was refused and its subsequent appeal (CACV49/2013) was dismissed on 4 September 2013 for want of prosecution.

6. By a Notice of Decision dated 10 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered all applicable grounds[1].

The Board’s decision

7. The applicant’s appeal against the Director’s decision was heard by the Board on 10 April 2018. The adjudicator considered that the applicant was not a witness of truth and that no weight can be attached to his claim that he is at real and personal risk of harm from members of the UPFA or any successor political party, or from gangsters associated with any political party or from the Sri Lankan police or other public authorities. The appeal was therefore rejected on 12 July 2018.

The intended judicial review

8. The applicant filed a Form 86 under HCAL 1498/2018 and an affirmation on 30 July 2018 to seek leave to apply for judicial review against the decision dated 12 July 2018[2]. The applicant asserted that the decision was wrong and that he still has problem and his life was threatened by his enemies who belong to UPFA party and have connection with gangsters and the ruling party members.

The judge’s decision

9. The judge refused to entertain the application as the applicant had not provided any ground in support in the Form 86 or his supporting affirmation. The applicant mentioned in the supporting affirmation he would provide his grounds later and exhibited a copy of the covering letter to him from the Board dated 12 July 2018 informing him that the Director’s decision should be confirmed. He did not even provide a copy of the decision of the Board. Nearly two and a half months had elapsed since the Form 86 was lodged and nothing was heard from the applicant. The judge therefore refused the leave application.

10. The applicant filed a Notice of Appeal against the decision of the judge on 26 October 2018.

The grounds of appeal

11. In the space for setting out the grounds of appeal, the applicant stated that he was unable to give his supporting document during his interview and he needed time to obtain this from his country. They (the Director and the Board) never asked and never gave him time.

12. The above assertions were not submitted previously before the judge in the leave application.

Non-compliance with unless order

13. The appeal was scheduled to be heard on 11 March 2019. Directions were given by the Registrar of Civil Appeals on 12 December 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

14. A notice of hearing of the appeal dated 22 January 2019 was issued and sent to the applicant by post. In the notice, he was reminded that he should comply with the above directions of the Registrar.

15. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019). The hearing date has been vacated pursuant to the unless order and the court informed the applicant of the vacation of the hearing date by letter dated 12 February 2019 and that his appeal will be dealt with on paper.

Legal Principles

16. The relevant principles regarding an appeal in a non-refoulement case have been stated comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14 and are as follows.

17. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“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.

18. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

20. 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, 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.

Discussion and disposition

21. The applicant’s assertions contained in his notice of appeal were not raised in the application for leave to apply for judicial review. The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive not canvassed at the Court of First Instance and for which leave has not been sought within time.

22. In any event, the non-refoulement claim was made back in 2013 and he completed his supplementary non-refoulement claim form in April 2017. He attended the second interview with the immigration officer in May 2017 and the hearing of the Board was conducted in April 2018. The whole process of assessment of the applicant’s non-refoulement claim lasted several years. In these circumstances, the complaint of lack of time to obtain the necessary supporting documents is clearly without basis.

23. As there is no merit in the appeal and no prospect of success in the intended application for judicial review, we therefore dismiss the appeal.

(Susan Kwan)	(Jeremy Poon)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The Applicant, acting in person

[1] All the applicable grounds are: risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”); 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 (“BOR 3 risk”); risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”); and risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).

[2] It was stated in the Form 86 that he sought judicial review against the decision by “security bureau on [his] USM case at 12 July 2018”, and he named the “petition teams (security bureau)” as the proposed respondent and the Torture Claims Appeal Board Non-refoulement Claims Petition Office as interested parties.

NONIS PATTINI KUTTIGE SAMPATH THUSHARA v. TORTURE CLAIMS APPEAL BOARD/ NON- REFOULEMENT CLAIMS PETITION OFFICE

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