CACV 154/2022
[2022] HKCA 1274
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 154 OF 2022
(ON APPEAL FROM HCAL NO 614 OF 2019)
________________________
BETWEEN |
| | WEDDAWALA KANKANAMLAGE SUMANAWATHIE | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
_____________________
| Before: | Hon Chow JA and ST Poon J in Court |
| Date of Judgment: | 10 October 2022 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 21 April 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 8 April 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 June 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 11 July 2016 and 4 July 2017.
BACKGROUND
2. The Applicant is a national of Sri Lanka. She entered Hong Kong as a visitor on 17 January 2005. Although there was a departure record dated 24 January 2005 in respect of her Sri Lankan passport, she was subsequently arrested in Hong Kong on 5 April 2010 for overstaying. On 7 April 2010, she lodged her first non-refoulement claim which was considered in relation to the risk of torture[1]. Her first claim was based on an alleged fear of harm from 2 sources if she returned to Sri Lanka: (i) an opposing political party (the United National Party) in view of her membership of another political party known as the United People’s Freedom Alliance, and (ii) gangsters who extorted money from her and wanted his son, who had joined the army, to supply them with bullets (to be stolen) from the army. The Applicant’s first claim was refused by the Director on 20 December 2013, and her appeal against the Director’s refusal was dismissed by the Torture Claims Appeal Board on 16 April 2014. In the meantime, on 28 December 2013, she lodged her second non-refoulement claim. Her second claim for non-refoulement protection was based on the same grounds raised under her first claim. In addition, she claimed that she would also be at risk of harm from a local moneylender in view of her inability to repay a loan to the moneylender. Details of the Applicant’s claim were summarised by the Judge at §§1-6 of the CALL-1 Form ([2022] HKCFI 989).
3. By a Notice of Decision dated 11 July 2016 and a Notice of Further Decision dated 4 July 2017, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: (i) persecution risk[2] and BOR 3 risk[3], and (ii) BOR 2 risk[4] respectively.
4. The Applicant appealed the Director’s decisions to the Board. On 21 June 2018, the Board dismissed the Applicant’s appeal and confirmed the Director’s decisions (“the Board’s Decision”).
5. The Board’s reasons for its decision were summarised by the Judge at §12 of the CALL-1 Form, as follows:
“The Board proceeded to consider the respective submissions from the legal representatives and also the applicant’s oral evidence [13]-[18]. Having reviewed all the available documents, the Board found that the applicant’s evidence lacked credibility [41]. The Board eliminated the possibility that such inconsistencies might be caused by the difficulties faced by the applicant arising out of interpretation service provided by a male interpreter [42]. It observed that the applicant’s conduct was inconsistent with someone who was genuinely in need of protection [45]-[48]. It also considered the applicant’s evidence to be vague and contradictory, such as the details of the gangsters and how they imposed fear on her [50]-[51]. Insofar as the moneylender and the claim about the gangsters’ extortion of money were concerned, the Board noted that they were new and the applicant failed to provide any cogent information on these new claims [53]-[55]. It further observed that the applicant’s evidence during cross-examination was vague and self-serving and concluded that such bad quality of evidence was not due to the applicant’s age or culture but the fact that she was simply not a witness of truth [56]-[63]. For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.”
6. Pausing here, we note from reading the Board’s Decision that the “second key and fundamental” discrepancy in the Applicant’s case relied upon by the Board to find her not to be a credible witness was her new allegation made for the first time in her evidence to the Board that the gangsters who had approached and extorted money from her were linked to her political opponents, and members of the opposing political party came to her house with the gangsters, and not merely the fact that the gangsters had extorted money from her as seemingly suggested by the Judge (see §55 of the Board’s Decision). This aspect does not, however, affect the Judge’s analysis of the Applicant’s application for leave to apply for judicial review.
THE JUDGE’S DECISION
7. On 5 March 2019, the Applicant filed her Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
8. On 8 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[19] The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her grounds in support of her application do not assist her application.
[20] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
THIS APPEAL
9. In her Notice of Appeal dated 21 April 2022, the Applicant stated that the grounds of her appeal were contained in “page wo-01”, which, however, was not lodged with the court.
10. The Applicant has failed to lodge her skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 12 July 2022. Accordingly, the Applicant is deemed to have waived her right to have an oral hearing of the appeal and elected to have her appeal disposed of on paper.
DISCUSSION
11. The court’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
12. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 8 April 2022, and has failed to raise any viable ground of appeal against the Order.
13. The Applicant’s appeal has no merits and is dismissed, with no order as to costs.
(Anderson Chow)
Justice of Appeal | (ST Poon)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] 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.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.