RE WALGAMPOLAGE SIRINUWAN OSADA BUDDHIKA PERERA

CACV 627/2020

[2021] HKCA 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 627 OF 2020

(ON APPEAL FROM HCAL NO. 858 OF 2017)

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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 Bruno Chan given on 13 June 2019 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 his notice of motion the applicant stated that he was not satisfied with our judgment because he was unable to submit his written submissions in time and before he could submit his supporting documents.  He still has some important documents to submit but because of the Covid issue in Sri Lanka and the warrant against him for keeping illegal weapon and therefore if he goes back his life will be in danger because so many weapon cases suspects were killed in June and 3 people were killed in police custody.  He requested the Court to give him time to submit his supporting documents including his medical certificates because of his health problems, he is still going to clinics to for treatment.

1.5   The applicant lodged a letter of written submissions on 5 July 2021.  From what we could gather, he repeated that he was unable to submit all documents and written submissions to the Court before and that the reason was that he was not feeling well and because of heart problem and everyday he needed to take a tablet many times and that he was hospitalized.  He therefore begged the Court to give him another opportunity to submit all his documents and because if he went back, his life would be in danger and he needed to submit some documents with his written submissions.  He had attached 9 pages of copies of documents amongst which was an English translation of Character Certificate dated 22 October 2020 purportedly issued by a Justice of Peace for the Whole Island in Makuluduwa, Piliyandala, a summons purported to be issued on 21 August 2017 by the Magistrate’s Court in Kesbewa, a purported message form issued by the Sri Lanka Police on 2012.01.05, and copies of 3 medical appointment slips at the Hong Kong North District Hospital, the last one being for Medical Echocardiography on 16 April 2021.

1.6   The applicant said in particular the message form issued by the Sri Lanka Police was an important document as that was the search warrant to search his house and was given by his enemy who would like to take revenge on him and always made trouble for the applicant and that the enemy has connection with all the gangsters and police department and that he would come to his home to search and threaten his family and asked about a weapon and that they tried to file a fake case against him.

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 his 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 he has raised in his 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 627/2020

[2021] HKCA 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 627 OF 2020

(ON APPEAL FROM HCAL NO. 858 OF 2017)

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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

1.1 This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 13 June 2019 in which he refused to grant leave to him to apply for judicial review.

1.2 This appeal was scheduled to be heard on 4 June 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 1 April 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly, the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1 The applicant is a national of Sri Lanka.  He departed Sri Lanka in August 2009. He sneaked into Hong Kong illegally in September 2009.  On 9 September 2009, he applied for non-refoulement protection.

2.2 The basis of the applicant’s claim is that he would be harmed or killed by people affiliated with a road work contractor who was killed by the applicant’s friend with a pistol. Since the applicant was there on the scene, he feared for his life.

2.3 The background facts have been summarized in the decision of the Judge at [2]-[6].

3)  The Director’s Decision and Further Decision

3.1 The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 21 August 2015.  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 13 June 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’). The Board dismissed the applicant’s appeal on 23 October 2017 (‘the Board’s Decision’).

4.2 The Board found that the applicant was not a credible witness. The applicant’s version of event was laced with inconsistencies, extraordinary coincidence and sheer luck. There was no state action. The applicant’s fear was more imagined than real. There was no genuine risk that the applicant would be subjected to torture if refouled.

5)  Decision of the Judge

5.1 The applicant filed his Form 86 but no grounds of review were mentioned. In his supporting affirmation, he merely repeated his claim that there was real risk of returning. He stated that his parents passed away and he will get their death certificates.  

5.2 The Judge held on 13 June 2019 that the Board’s decision was held based on the evidence provided. He held that he has considered the Board’s decision and the Director’s relevant decisions with anxious scrutiny and rigorous examination, and he did not find any error of law or procedural unfairness.

5.3 By summons of 8 July 2019, the applicant sought an extension of time to appeal before the Deputy Judge. The Judge held on 19 November 2020 that the applicant was granted extension of time to appeal within 14 days.

6)  Grounds of appeal

6. The applicant filed his notice of appeal within time. Doing the best we can to read from the applicant’s handwriting in his notice of appeal dated 30 November 2020, the applicant stated that he is receiving some form of medical treatment. He stated that he had some new documents to produce to the Court during his hearing, without exhibiting or explaining what they were. He believes that his life was still in danger.

7)  Our view

7.1 We are of the view that the above are all bare allegations without particulars or specifics.  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