RE OTUNU PATTALE MULACHARIGE NILUKA K.J.

CACV 574/2020

[2021] HKCA 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 574 OF 2020

(ON APPEAL FROM HCAL NO. 2877 OF 2018)

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D E C I S I O N

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Hon B Chu J (giving the Decision of the Court) :

1)  Leave to appeal to Court of Final Appeal

1.1   On 10 June 2021, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 14 May 2020 in which he refused to grant leave to the applicant to apply for judicial review.

1.2   The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3   The applicant now applies, by a notice of motion dated 21 June 2021, for leave to appeal against our judgment to the Court of Final Appeal.

1.4   From what we could gather, in her notice of motion, the applicant has stated that if she goes back, she needs to face many problems and that when she submitted her written submissions for the appeal, she had needed time to obtain supporting documents that Silva is a dangerous man who raped her before.  At this moment in Sri Lanka, Covid 19 is on high increase and all of government offices are closed, and that day by day the death rate increases too.  She requested the Court to give her time to obtain some documents which she said she would try her best to obtain and that she would try to contact her friend to obtain those documents.

1.5   The applicant also lodged a letter with her written submissions on 29 June 2021.  Again from what we could gather, she stated therein that she was unable to submit her supporting documents to the Court during the previous hearing and that it was her fault, but that she truly had real problems from her enemies and they belong to the present ruling party supporters and they had tortured her and raped her.  If she went back, definitely her life would have problems and again she would need to face more harm from them.  She is scared to go to Sri Lanka because they have police, political and gangsters connections.  The applicant repeated her request to give her time to obtain some supporting documents as all the government offices are closed because of the increase in Covid 19 cases and that when the country becomes free, she will obtain her documents regarding her problems to submit to the Court.

2)  Legal principles

2.   Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1   The matters stated by the applicant in her notice of motion do not constitute grounds for granting leave 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 in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters she has raised in her notice of motion.

3.2   We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.   For these reasons, the notice of motion dated 21 June 2021 is dismissed.

CACV 574/2020

[2021] HKCA 809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 574 OF 2020

(ON APPEAL FROM HCAL NO. 2877 OF 2018)

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________________________

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

1)  The appeal

1. This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1 The applicant is a national of Sri Lanka.  She entered into Hong Kong on 9 July 2012 and took up employment as a domestic helper. The applicant’s contract was prematurely terminated and she overstayed. She was convicted and incarcerated with theft. After her release, she raised her non-refoulement claim.  

2.2 The basis of the applicant’s claim is that she would be harmed or killed or sexually assaulted by a politician by the name of Silva and his subordinates. Silva was in a political position of power and the applicant claims she cannot be protected by the Sri Lanka authorities.

3)  The Director’s Decision and Further Decision

3.1 The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 23 August 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2 The Director decided against the applicant’s right to life claim on 7 July 2017 (“the Director’s Further Decision”). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (“BOR 2”).

4)  The Board’s Decision

4.1 The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’). After a hearing held on 6 October 2017, the applicant’s claim was dismissed by the Board on 3 January 2018.

4.2 The Board held that there was no evidence to suggest that if the applicant returned to Sri Lanka she would be unable to live anywhere else or that Silva would look for her. It was incredible that the applicant has never reported any incident to the police when she claimed that she had been raped, came into contact with Silva’s subordinates or being sexually assaulted by her friend’s husband. It was held that the dispute between Silva and the applicant was private in nature. Nothing indicated that it had any correlation with the Sri Lanka authorities.

5)  Decision of the Judge

5.1 The applicant filed her Form 86 out of time, seeking for leave for judicial review on 14 December 2018. In her supporting affirmation, she again stated that Silva was powerful and she fears of returning to Sri Lanka.

5.2 On 14 May 2020, the Judge held that although the Board accepted the facts of the applicant’s case, the Board did not accept on the facts that there is a real risk of harm to the applicant if she was to be refouled. The applicant failed to show any reasonable prospect of success.

6)  Grounds of appeal

6.1 Doing the best that we could read from the applicant’s notice of appeal, she stated that it was dangerous for her to return. She stated that she belonged to a different political party. She stated that one man in the country appoints all judges and security officers. She complained that she was not able to submit documents in the hearing below.

6.2 Doing the best that we could read from the applicant’s written submissions, the applicant simply stated that there are still problems in her home country.

7)  Our view

7.1 We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2 It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3 We see no basis to disturb the Deputy Judge’s Decision. Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person