RE SUBASINGHE MANAGE DUSHANTHA KUMARA

CAMP119/2019

[2021] HKCA 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 564/2017)

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Before:  Hon Chu JA, Barma JA and Au JA in Court

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J U D G M E N T

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

1.  On 8 December 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 13 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 13 January 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“…I would like to say that still I have problem by loan shark. He can do anything to me any harm to my life. Therefore I am second to go at this time because he have connection with all politician and police department too. I came here with injured leg. He was beaten me and try to kill then I taken the treatment in Hong Kong. I need thanks to doctor of Hong Kong to treat me and I will submit my medical certificate in my oral hearing. Thank you.”

4.  In the affirmation dated 13 January 2021, the applicant deposed that:

“I would like to inform you that I never my order and decision in time and today I taken copy from office and I need to notice of motion again this decision. Thank you.”

5.  The applicant lodged a written submission in support of the application on 28 January 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He explained why his life is in danger and identified the documents he intended to submit to court at the next oral hearing.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers, despite the applicant’s requests for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  Although the delay was not very lengthy, we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The explanation for his delay given in his affirmation lacked particulars.   He also did not explain why he was unable to receive the court’s judgment or why he went to the “office” to get a copy of the judgment.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  The only grounds for the application are that he will face harm upon his return and that he needs to stay in Hong Kong for treatment.  Neither of those grounds are valid grounds of appeal as they do not identify an error in our judgment.  These grounds are also not viable grounds for seeking non-refoulement protection in themselves. In any event, the Board has held that the applicant would not be subject to any of the proscribed harm upon his return and that he will be afforded with state protection.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 13 January 2021 is dismissed.

The applicant acting in person

CAMP 119/2019

[2020] HKCA 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 564/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 February 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 8 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 9 September 2016 and 7 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Sri Lanka.  He entered Hong Kong on 16 July 2013 and was permitted to remain until 30 July 2013.  He overstayed and surrendered to the authorities on 13 August 2013.  He lodged a non-refoulement claim on 19 May 2014. 

3.  The applicant’s claim was based on fear of harm by his creditors.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 form.

4.  By a Notice of Decision dated 9 September 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 7 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 June 2017, the Board dismissed the appeal on 8 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  In the Board’s Decision, the Board found that there was not a real risk that the applicant would be subject to any of the proscribed harm upon his return.  The Board was also satisfied at [81] that state protection would be available for the applicant and at [96] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 29 August 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 29 August 2017, the applicant deposed that:

“ I like to inform you that the petition team (security bureau) taken my decision was unsatisfactory for me in my USM case, because I have still life threaten for me from my enemy in my country if I go this moment my life become uncertain, and I need to remain in Hong Kong until settle my problem from my enemy. I will submit my supporting document in future. I submit Exhibit (1) one page.”

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [16] of the CALL-1 form:

“13.     As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them of which the court will not usurp their role as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

14.     Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Sri Lanka, they were entitled to come to their conclusion that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.     In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.     For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

12.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 13 February 2019.

Application for extension of time to appeal and grounds for appeal

13.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 21 March 2019, the applicant sought leave to appeal out of time, some three weeks late.  His application was dismissed by DHCJ Bruno Chan on 5 June 2019.

14.  By a summons dated 10 June 2019, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and the affirmation of the same date, he said that the judge did not give him any oral hearing to explain his situation and to provide supporting documents, and that it would be dangerous for him to return.

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 2 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the Court.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

17.  The applicant did not provide any explanation for his delay in bringing the intended appeal but we nonetheless go on to consider the merits of the intended appeal.

18.  The bare assertion by the applicant that it is unsafe for him to return is not a viable ground of appeal.  As this court has repeatedly emphasised, an application for judicial review is not a further appeal, and still less is an appeal against a refusal of leave to bring judicial review proceedings an opportunity to revisit factual issues which are within the purview of the Director and the Board.  It is necessary for an intending applicant to demonstrate some public law errors on the part of the Board, and on appeal to this court, to point to some errors on the part of the judge below.

19.  The only ground of appeal mentioned is that the applicant was not given an oral hearing before the judge (presumably for the judicial review leave application). We note that there was no oral hearing because the applicant had not requested for one in the Form 86 or the supporting affirmation (see Rules of High Court Order 53 rule 3(3)).  In any event, the applicant did not identify any argument or document he wished to submit for the judicial review leave application in either the documents filed for the intended appeal or the hearing before the judge on 26 April 2019 for the leave to appeal application.  Insofar as it was intended to refer to the absence of oral hearing of the application for leave to appeal out of time, it is for the court to determine whether an oral hearing is called for in the circumstances of the case.  There is no apparent reason here why this application could not have been dealt with on paper in the court below.  This ground is therefore without merit.

20.  We therefore do not see any prospect of success in the intended appeal, and will not grant extension of time for a hopeless appeal.  The summons of 10 June 2019 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.

The applicant acting in person