WEWALDENI KANKANAMALAGE SAMAN PUSHPA KUMARA v. THE PETITION TEAMS (SECURITY BUREAU)

CAMP 183/2020

[2021] HKCA 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 183 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 492 OF 2018)

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________________________

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 5 May 2021 ([2021] HKCA 623). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 27 July 2020 ([2020] HKCFI 1697) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 4 June 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 16 June 2021.  Having considered his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Sri Lanka.  He entered Hong Kong illegally on 12 September 2009 and was arrested by the police on 14 September 2009.  He lodged a torture claim on 17 September 2009 on the basis that if he returns to Sri Lanka he will be harmed or killed by the supporters of the rival political party United People’s Freedom Alliance.

4.  DHCJ Bruno Chan granted an extension of 14 days for the applicant to file his notice of appeal but the applicant failed to file his notice of appeal within the extended deadline.  On 5 October 2020, he took out a renewed application in the Court of Appeal for extension of time to file his notice of appeal against the judge's decision of 27 July 2020.  The application was dismissed by the Court of Appeal on 5 May 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

5.  The applicant’s ground of appeal stated in the Notice of Motion is that his application was dismissed by the court as he was not able to submit supporting documents and this was caused by the fact that the government offices are closed in his country during the Covid-19 pandemic. 

6.  The contentions in his written submissions may be summarized as follows:

(1)  The ruling party in Sri Lanka is doing so much harm to the people.  They sometimes arrest people, make fake cases and detain them for a long time under police custody;

(2)  If he goes home, something could happen to him.  There are many deaths in custody in the Sri Lankan police department.  Even in this month, more than three people under police custody were killed by the police;

(3)  He could not submit any supporting document because his father has passed away and he cannot ask anybody to get the documents for him.  It is also not possible to get the documents from his country now because of the lockdown under the Covid-19 pandemic.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  The applicant was late for two days in filing his notice of motion.  He explained in his affirmation that he was unable to submit his Notice of Motion in time because he lost the letter box but only found it later. 

11.  In any event, the applicant’s grounds of appeal and submissions are untenable.  In particular, his excuses for his failure to obtain supporting documents are wholly unacceptable as his non‑refoulement claim was lodged way back in 2009 and his application for leave to bring judicial review was made in 2018, well before the pandemic. 

12.  Furthermore, he has not put forward any viable ground to show that the judge was wrong in dismissing his application.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 June 2021.

CAMP 183/2020

[2021] HKCA 623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 183 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 492 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 27 July 2020, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1].

2.  On 16 August 2020, the applicant filed a summons for extension of time to appeal against that decision, despite the fact that the time for filing the notice of appeal has not yet expired by that time as the period of the court’s summer vacation from 1 to 31 August 2020 would be excluded in reckoning the 14-day period for filing the appeal[2]. 

3.  On 8 September 2020, DHCJ Bruno Chan granted an extension of 14 days for the applicant to file his notice of appeal[3].

4.  The applicant failed to file his notice of appeal within the extended deadline.  On 5 October 2020, he took out this renewed application in the Court of Appeal for extension of time to file his appeal against the judge's decision of 27 July 2020.

5.  The applicant is a national of Sri Lanka.  He is 43 years old.  He entered Hong Kong illegally on 12 September 2009 and was arrested by the police on 14 September 2009.  He lodged a torture claim on 17 September 2009 which was later taken as a non-refoulement claim under the unified screening mechanism.  His claim was made on the basis that if he returns to Sri Lanka he will be harmed or killed by supporters of the rival political party United People’s Freedom Alliance (“UPFA”).

The Director’s decisions

6.  By a Notice of Decision dated 22 July 2015, the Director of Immigration (“the Director”) rejected the applicant’s claim on BOR 3 risk[4], torture risk[5] and persecution risk[6]. 

7.  By a Notice of Further Decision dated 5 April 2017, the Director rejected the applicant’s claim on BOR 2 risk[7] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim. 

The Board’s decision

8.  The applicant appealed against the Director’s decisions to the Board.  The hearing of the appeal was conducted before the Board on 2 May 2017.  The Board did not accept that the complained acts amounted to torture as the applicant was not injured in the alleged incidents. The Board also found there is no evidence to show that the people from UPFA were acting in the official capacity of the government or in the ostensible exercise of the public authority or with the government’s consent.  The Board further considered there is no evidence to show that the UPFA people are still interested in the applicant after such a long lapse of time.  The Board also found that state protection is available in Sri Lanka.  It concluded that the applicant had failed to substantiate his claim on any of the applicable grounds and dismissed the appeal on 15 March 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 27 March 2018 to seek leave to apply for judicial review against the decision of the Board.  He only reiterated the alleged risk of harm he may face but did not put forward particular grounds for his intended challenge against the Board’s decision.

The judge’s decision

10.  DHCJ Bruno Chan considered the leave application on the papers as the applicant did not request for an oral hearing.  The judge found that the applicant does not have any reasonably arguable basis for his intended challenge as he failed to identify any error of law or procedural unfairness in the processing of his case before the Board or in the Board’s decision.  As there is no prospect of success in the intended judicial review, the judge dismissed the application on 27 July 2020.

Grounds of intended appeal

11.  In the present summons, supporting affirmation and written submissions, the applicant again repeated the reasons why he wants to stay in Hong Kong without stating any particular grounds of appeal against the judge’s decision. He added in his written submissions that he believes he will get his dependent visa soon and he will then withdraw his case.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  The judge granted an extension of time for the applicant to file his notice of appeal on 8 September 2020.  The deadline expired on 22 September 2020.  He took out the present summons on 5 October 2020.  He was late by 13 days. 

14.  The applicant explained that he received the court order late because of the postal service delay.  The order granting the time extension was sent to the applicant by post on 8 September 2020 and the applicant did not produce the envelop with the postmark to support his explanation. However, in view of the impact of the pandemic on the mail service and the fact that the delay here was only 13 days, we would give the applicant the benefit of the doubt and consider his explanation for the delay acceptable.

15.  The court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[8].

16.  In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

17.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

18.  In the present application, the applicant did not identify any mistake in the judge’s decision of 27 July 2020.  He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  The applicant does not have any prospect of success in the intended judicial review or the intended appeal.  We therefore refuse to extend time to appeal and dismiss the summons filed on 5 October 2020.

[1] [2020] HKCFI 1697

[2] Hong Kong Civil Procedure 2021, vol 1, §59/4/12

[3] [2020] HKCFI 2162

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[8] Re Gurung Min Bahadur [2018] HKCA 226 §10