RE MUDANNAYAKALAGE CHAMINDA PUSHPA KUMARA

CACV 92/2018

[2018] HKCA 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2018

(ON APPEAL FROM HCAL 417/2017)

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JUDGMENT

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

1.  By our judgment dated 18 July 2018 ([2018] HKCA 400), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 23 March 2018 ([2018] HKCFI 589) refusing leave to the applicant to apply for judicial review.

2.  The applicant now seeks leave to appeal to the Court of Final Appeal.

3.  In his notice of motion dated 14 August 2018, the applicant put forth the following grounds for seeking leave to appeal to the Court of Final Appeal:

“ 1. The Court has failed to take into account the real risk of torture, especially given my submission that I might be perceived by the Navy as a suspect who had leaked information to the enemy, as such would be subject to torture and interrogation.

2. The issue has never been considered thoroughly given that the adjudicator considered and rejected this issue, finding there to be no evidence of a risk of this if refouled. I respectfully submit that the finding has been procedurally unfair and biased.

3. Deputy High Court Judge Woodcock refused to take the letter sent to me from Sri Lanka from my village given that such evidence was not before the TCAB. However, there was a reasonable explanation for the delay in producing the document and such document should be taken into account given there has been new facts, unless the Court is prepared to allow me to submit the documents to the Torture Claims Appeal Board for consideration, yet as far as I am concerned the Torture Claims Appeal Board is not prepared to take any further action regarding my case.

4. Furthermore, the fact there was a lack of oral appeal hearing explains the reason why the evidence was not before the TCAB. The Determination was out before I even had a chance to approach the Board.

5. I therefore seek a reconsideration of my case because I do not think that my case has been determined fairly.  I also request that a hearing to be arranged.”

4.  In his written submissions lodged on 4 September 2018, in addition to repeating the matters stated in the notice of motion, the applicant also asserted that the authorities had not conducted sufficient inquiry into the country of origin information regarding the treatment of ex-members of Navy in Sri Lanka who were suspected to be traitors. 

5.  Notwithstanding the applicant’s request for an oral hearing, application for leave to appeal to the Court of Final Appeal is usually processed on the papers: see paragraph 3 of Practice Direction 2.1. Having considered the applicant’s notice of motion and written submissions, we do not see any justification for departing from such usual practice.  We consider that this application can be properly disposed of without an oral hearing, and have proceeded to consider it on paper.

6.  It was the Torture Claims Appeal Board’s conclusion that the applicant had failed to establish a case for non-refoulement protection.  Neither the Court of First Instance nor this Court find any reason on public law grounds to interfere with that conclusion.  A bare and general assertion that the board did not consider the case thoroughly would not constitute a valid ground of appeal to the Court of Final Appeal. Hitherto, the applicant had not relied upon the ground relating to the alleged insufficient inquiry into the country of origin information. No particulars had been given by him. 

7.  Nor had he pursued the ground relating to the judge’s refusal to admit the letter from his village in the appeal before us. Even now, he has not produced the letter he referred to.

8.  There is no explanation from the applicant as to why he did not raise these grounds earlier.

9.  It is simply too late for these grounds to be raised. It is not the practice of this Court to grant leave to appeal on new points that were not canvassed at the substantive appeal before us: see Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo CACV 65/2014, unreported, 19 May 2015, at [7] to [9]; and The Law Society of Hong Kong v A Solicitor CACV 78/2014, unreported, 10 July 2015, at [4] to [7].  Further, leave would not be granted on new fact-sensitive points not argued at the court below: see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39].

10.  In any event, the proposed grounds stated in the notice of motion and the applicant’s written submissions are fact-and-evidence sensitive, and do not involve any questions of great general or public importance.  The applicant’s application does not satisfy the statutory threshold under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) for leave to appeal to the Court of Final Appeal to be granted.

11.  For these reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal, and dismiss the notice of motion accordingly.

CACV 92/2018

[2018] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2018

(ON APPEAL FROM HCAL NO 417 OF 2017)

__________________________

__________________________

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JUDGMENT

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

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock of 23 March 2018 refusing leave to apply for judicial review.

2.  This appeal was originally listed for hearing on 13 July 2018.   At the time when the hearing date was fixed, the Court also gave direction for lodging skeleton submissions with an unless order that if such submissions were not lodged, the hearing date would be vacated and the appeal shall be processed on the papers based on materials already filed by the applicant.  Notwithstanding such unless order, the applicant did not lodge his skeleton submission.  Non-compliance with such requirement, notwithstanding an unless order, is treated by the Court as the abandonment of the right to an oral hearing, see Re Manjit Kaur[2018] HKCA 247, Re Miha Md Limon[2018] HKCA 278, Re Ali Arshad[2018] HKCA 304, and Re SK Sarf Araj[2018] HKCA 307.

3.  Accordingly, the hearing date was vacated.  We now deal with this appeal based on materials already lodged.

Background

4.  The applicant is a Sri Lankan national.  He left Sri Lanka for the Mainland China, via Singapore, on 17 May 2004.  He entered Hong Kong on 22 May 2004 with a permission to remain as a visitor until 21 June 2004.  He overstayed and was arrested by the police for robbery on 20 December 2007.  He lodged his torture claim on 9 January 2008.

5.  The applicant was later convicted of the offence of robbery on 24 June 2008 and was sentenced to imprisonment for 4½ years.  He was discharged on 18 December 2010.  A Removal Order was issued on 21 January 2011 and served upon the applicant on 27 January 2011.  He was released on recognizance on 28 January 2011.

6.  The applicant’s torture claim was processed as a non-refoulement claim.  The basis of the applicant’s claim was that, if he is  returned to Sri Lanka, he would be harmed, or even killed, by the Sri Lanka Navy because he deserted the Navy in around February 1999.  He also feared that he would be harmed, or even killed, by Duminda Silva (a political rival of his employer Mr Bharatha Lakshman), and/or his people from the United National Party upon his return by way of revenge.

7.  By a Notice of Decision dated 30 November 2015, the Director of Immigration rejected his claim.  The Director considered that there was no real intention of the Navy to kill the applicant.  The risk of being arrested by the Navy was a direct legal consequence of his being a Navy deserter, and there was no evidence indicating that he would not receive a fair trial on the matter.  Furthermore, the Director noted that the Sri Lankan government had regularly declared general amnesty for deserters.  The Director also took the view that there was no evidence indicating that the applicant was the target of the shooting incidents.  The low intensity and low frequency of ill-treatment indicated a small future risk of harm upon his return to Sri Lanka.  The Director also considered that the availability of state protection and the viability of internal relocation would lower the perceived risk of harm.  The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

8.  The applicant appealed to the Torture Claims Appeal Board.  The Board noted that the applicant received no mistreatment during his service for the Navy.  The Board also shared the director’s finding that the Sri Lankan government routinely granted amnesty to deserters.  The Board found no state involvement in relation to the shooting incidents, as well as that neither he nor his family had been harassed by the Sri Lankan police and that the applicant encountered no impediments when he left Sri Lanka.  The Board dismissed the appeal on 27 April 2017.

The Deputy Judge’s decision

9.  The applicant filed the form 86 on 17 July 2017 in respect of the Board’s decision.  According to the document entitled “Grounds of Appeal” annexed to the form 86, apart from reciting his background and the facts, the applicant advanced the following grounds for seeking relief:

(a)  The Board failed to take into account of the fact that the applicant might be perceived by the Navy as a suspect who had leaked information to the enemy, as such would be subject to torture and interrogation; and

(b)  The Board failed to consider that, although Duminda was put in prison, his organization still existed and would take revenge against him.

10.  The applicant also filed an affirmation on 17 July 2017 in support of his application for leave to judicial review, in which the applicant simply exhibited thereto the aforesaid “Grounds of Appeal” and articles downloaded from the internet regarding Duminda.

11.  The Deputy Judge held an oral hearing on 8 December 2017 and gave the following reasons in refusing leave to apply for judicial review at paragraphs 14 to 19 of the CALL-1 form dated 23 March 2018:

“ 14. The supporting affirmation essentially repeated the applicant’s claim. He does submit the adjudicator had failed to consider the fact he will be tortured by the Navy if refouled. The adjudicator considered this and rejected this; he found there to be no evidence of a risk of this if refouled.

15. He goes on to give further evidence that after he left Sri Lanka the violence escalated and his boss Bharatha was killed and Duminda wounded in a gun battle. His boss’s daughter has now become a member of Parliament and campaigned for Duminda to be brought to justice and charged with her father’s murder. These are all matters that happened after the applicant left Sri Lanka. His point is that the adjudicator has failed to consider the applicant will not be able to seek protection and employment from his boss if he returns because he has died.

16. I see no merit in the complaints set out in the applicant’s affirmation however in the oral hearing he did put forward a ground and that was the adjudicator failed to adhere to a high standard of fairness by refusing him an oral appeal hearing. However, he then went on to give details of events that had happened between 2015 and 2017 in Sri Lanka; referring to Duminda’s appeal. He said he was deprived of an opportunity to tell the adjudicator of this event and why it was still very dangerous for him to return home. He wanted to produce a letter to this court that he had recently sent to him from Sri Lanka from his village but I explained that I would not take into account evidence that was not before the TCAB.

17. As I have said above, I did consider whether the adjudicator acted fairly when he considered the applicant’s appeal/petition on the papers only. I was satisfied the decision was fair and I agreed with the adjudicator that an oral hearing could be dispensed with in this appeal.

18. I nevertheless considered with rigourous examination and anxious scrutiny the adjudicator’s decision. I did not find any error of law by the adjudicator. I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing. I do not see it as a failure to adhere to a high standard of fairness. The substantive decision was not Wednesbury unreasonable.

19. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore I refuse leave for judicial review.”

Grounds of appeal

12.  In his Notice of Appeal filed on 4 April 2018, the applicant advanced the following grounds of appeal:

(a)  The Deputy Judge erred in assuming that, as the applicant was not abused by the Navy before he left Sri Lanka, he would not be abused after he returned;

(b)  The Director and the Board failed to take into account the fact that his former employer was killed by Duminda after he left Sri Lanka; and

(c)  The Board failed to consider the fact that the reason for the applicant to be able to work as a security guard without being arrested was that he was afforded protection by his late employer, who was a Member of Parliament in Sri Lanka.

Discussion

13.  We are satisfied that the Board, as well as the Director, had adequately considered the issue relating to the possibility of mistreatment by the Navy upon the applicant’s return to Sri Lanka.  We cannot find any legal error in their conclusions. There is no evidential basis to support the alleged risk of mistreatment upon return.  We do not see this ground to be reasonably arguable in the intended judicial review.

14.  It is plain to us that the Director and the Board had considered the murder of his former employer in a gun fight in 2011.  In fact, the murder was explicitly mentioned in paragraph 6.44 of the Director’s decision; and the Board dealt with it in great details in paragraphs 53 to 60 of its decision.  There is no merit in this ground.

15.  Nor do we find any merit in the applicant’s point that he was not arrested because of the protection rendered by his former employer.  Ultimately, the crucial issue is the evaluation of risk of harm in light of all the evidence before the Board. The Board duly assessed the alleged risk coming from the Navy at paragraphs 70 to 73 of its decision.  Those paragraphs should be read in light of the discussion at paragraphs 61 to 69 on the improvement in the protection of human rights in Sri Lanka.  Against such background, the Board found no substantial ground to believe that the applicant would be subject to risk of torture.

16.  Evaluation of risk of harm is primarily a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. See: Re Lakhwinder Singh[2018] HKCA 246 and Re Daljit Singh[2018] HKCA 328.

17.  Having considered the materials available before us, we are of the view that the deputy judge’s observations are justified.  We do not find any errors of law or procedure in the proceedings before the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of merits of a non-refoulement claim is essentially a matter for the director and for the board, not for the court.  We agree with the deputy judge that no leave should be given to the applicant to apply for judicial review.

18.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.