RE MIHINDUKULASURIYA IRENE FERNANDO

CACV416/2020

[2021] HKCA 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2020

(ON APPEAL FROM HCAL 619/2018)

____________________

RE:

MIHINDUKULASURIYA IRENE FERNANDO

Applicant

____________________

Before:  Hon Barma JA and ST Poon J in Court

Date of Judgment: 24 September 2021

___________________

J U D G M E N T

___________________

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

1.  On 15 March 2021, this court (Barma JA and ST Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 12 August 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing the application for leave to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration rejecting her non‑refoulement claim.

2.  The facts and issues in the appeal, 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 filed on 26 March 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform to the Court of Final Appeal. There is some error in my case. I am totally disagree with the decision of authorities and court because there were totally rely on news and post on web which is not real matter in actual. Because its towards to my life in my home land in Sri Lanka. I do not want go back to my country Sri Lanka because my life is danger in my home land.”

4.  The applicant lodged a written submission in support of the application on 9 April 2021.  In the written submission, the applicant submitted that:

(1)  the Director and the Board did not determine her case fairly;

(2)  there was real procedural unfairness in her case.  There was a public policy of trying to dispose of claim as quickly as possible;

(3)  the applicant was not given assistance to understand her case;

(4)  when the Director made the decision on BOR2 risk, the Director failed to ensure that she was aware of her rights and definition of BOR2 risk;

(5)  there was a lack of legal and language assistance, which mean that she had no understanding of the process or the reason for rejecting her claim.

(6)  the Board’s Decision had not been read to her via an interpreter;

(7)  the court and the authorities failed to meet the requisite standard for a non-refoulement claimant; and

(8)  all the acts of the authorities had been highly discriminatory and unfair to her.

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

6.  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 she has raised.  

7.  The grounds advanced in the application for leave to appeal to the Court of Final Appeal and the supporting affirmation were never advanced before this court. Before us, the applicant’s Notice of Appeal merely asserted that she would be in danger if refouled.  No written submissions were lodged.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  Thus, none of the grounds advanced by the applicant is reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 26 March 2021 is dismissed.

(AARIF BARMA) Justice of Appeal

(ST POON) Judge of the Court of First Instance

The applicant acting in person

CACV 416/2020

[2021] HKCA 273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2020

(ON APPEAL FROM HCAL 619/2018)

-----------------------------------------------------------

RE:

MIHINDUKULASURIYA IRENE FERNANDO

Applicant

------------------------------------------------------------

Before: Hon Barma JA and ST Poon J in Court

Date of Judgment: 15 March 2021

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 August 2020 refusing to grant extension of time for his application for leave for judicial review and dismissing the application for leave to apply for judicial review. The intended judicial review was against (1) the decision by the Director of Immigration dated 11 December 2014 (“the Director’s First Decision”) rejecting the applicant’s torture claim and non-refoulement claims based on persecution and BOR 3, (2) the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 31 August 2015 (“the Board’s Decision”) dismissing the applicant’s appeal against the Director’s First Decision, and (3) the further decision of the Director dated 24 January 2017 (“the Director’s Second Decision”) of Immigration (“Director”) rejecting the applicant’s non-refoulement claim based on BOR 2 (against which the applicant did not appeal to the Board).

Background

2.  The applicant is a national of Sri Lanka.  She entered Hong Kong on 3 March 2005 as a visitor and was permitted to remain until 2 April 2005.  She overstayed and was arrested on 12 July 2012.  On 15 February 2013, she was convicted of the offence of possession of an identity card relating to another person and was sentenced to 10 months of imprisonment.  She lodged a non-refoulement claim on 16 March 2013.

3.  The applicant’s claim was based on threats from her creditor.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By the Director’s First Decision, the Director decided against the applicant’s claim. As noted above, the Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 July 2015, the Board dismissed the appeal on 31 August 2015.  At [41] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

6.  After the Board’s Decision, the Director gave the Director’s Second Decision assessing the applicant’s claim based on the BOR 2 risk^[4], and decided it against her.  The applicant did not appeal against the Director’s Second Decision, although she did seek to judicially review it.

The judge’s decision

7.  The applicant filed a Form 86 on 11 April 2018 which contained no ground for seeking relief.

8.  In her affirmation dated 11 April 2018, the applicant deposed that:

“The [Board’s Decision] was very unreasonable and I am not satisfied with decision ‘made’ by them they are depending mostly on web reports and some Sri Lankan authorities report to make a decision but not going source relevant to my ‘torture’ claims in Sri Lanka therefore I want to appeal to the High Court against this decision”

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

10.  After summarizing the facts and background of the case, noting the substantial delay in bringing the application in respect of each of the three decisions sought to be reviewed, and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review and dismissed the application for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [18] of the CALL-1 Form:

“11. She was by then also late with her application in respect of any of those decisions, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12. As the last day of the three-months period for her to file her Form 86 regarding the latest decision, i.e. the Director’s Further Decision, fell on 24 April 2017, the Applicant was therefore almost one year late with her application, never mind those much earlier decisions of the Director or the Board, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of one year or more must be considered as very substantial or excessive, for which she did not provide any explanation, and as the records confirm that all the relevant decisions were sent to her last reported address which had remained the same at all material times as stated in her Form 86, and that none of which have never been returned through undelivered mail, I am unable to see any good or valid reason for her such serious delay with her application.

14. As for the merit of her intended application, as noted above the Applicant failed to put forward any proper ground for her challenge, be it against the earlier decisions of the Director or the Board, or against the Further Decision of the Director regarding her BOR 2 risk which was simply not engaged on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim, as correctly founded by the Director. As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any basis or merit at all in her intended application.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

16. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered 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.

18. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 31 August 2020, the applicant contended that:

“My case was refuse for my first appeal and I want to apply for second coz I don’t like to go home coz until now I’m in danger my life there in my hometown. This people still finding me.”

12.  The applicant agreed by a letter of 31 August 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 1 December 2020 requiring her to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.

14.  The hearing date on 1 March 2021 was therefore vacated and the applicant was debarred from lodging any written submissions.  We have dealt with the appeal on paper on the basis of the materials already filed with the court.

Discussion

15.  The only ground of appeal set out in the Notice of Appeal is that it is not safe for her to return to Sri Lanka.  It does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  Further, as has also be frequently stated by this court, an application for judicial review is not a further appeal from the decision of the Board, and the court will only intervene if proper public law grounds for intervention are established.  Here, the Board has dismissed her claim for non-refoulement protection on the ground that she is not a credible witness and that she would not face any risk of harm upon her return.  The judge held that there was no public law error in the Board’s Decision.  We agree with the judge’s assessment. 

16.  Thus, quite apart from the very substantial delay, which remains unexplained, there is no merit in the appeal and we dismiss the appeal accordingly.

(Aarif Barma)	(ST Poon)
Justice of Appeal	Judge of the Court of
	First Instance

The applicant acting in person