CACV 35/2022
[2022] HKCA 577
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 35 OF 2022
(ON APPEAL FROM HCAL 131 OF 2019)
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| BETWEEN | | |
| | MIRISSAGE ROHAN SANJEEWA
PRIYANTHI FERNANDO | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative
Respondent |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________
Before: Hon Chow JA and Wong J in Court
Date of Hearing: 19 April 2022
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Wong J (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 7 January 2022 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 October 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 July 2017.
BACKGROUND
2. The Applicant is a national of Sri Lanka. He arrived in Hong Kong on 13 August 2005 as a visitor with permission to remain up to 12 September 2005. He overstayed, and was arrested by police on 27 October 2006 for using another person’s identity card and for undertaking unauthorized employment. He was subsequently convicted for these offences and sentenced to a total imprisonment term of 15 months. After his discharge from prison, he was referred to the Immigration Department for deportation. He then raised a torture claim on the basis that if he returned to Sri Lanka, he would be harmed or killed by members of the United National Party (“UNP”) for his alleged spying activities and / or by the police or other organizations for being suspected to have provided information against them or assistance to a terrorist group. After his torture claim had been rejected, he sought non-refoulement protection on the same basis. Details of the Applicant’s claim were summarised by the Judge at paragraphs 1 - 7 of the Form CALL-1.
3. Having previously rejected the Applicant’s claim on the risk of torture[1], by a Notice of Decision dated 6 July 2017, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed against the Director’s decision. He was legally represented before the Board on 26 June 2018. On 19 October 2018, the Board dismissed his appeal and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board found inconsistencies and discrepancies in his evidence and doubted the credibility of his claimed fear of harm from the UNP people. The Board also noted his failure to raise his claim at the earliest opportunity upon arrival in Hong Kong, and the claim was only raised more than one year later after his arrest by the police. In any event, the Board doubted if there would still be any adverse interest from political parties, or the police or any other groups or organizations against him since the Applicant had ceased any political involvement or activities for years upon his departure from the country. In addition, the relevant Country of Origin Information (“COI”) showed that the political landscape in Sri Lanka had since changed significantly and there is no evidence or basis to suggest that any past association in a political party would put the Applicant at any risk of any of the proscribed forms of harm upon his return to Sri Lanka. The Board concluded that his claim for non-refoulement protection failed on all applicable grounds.
THE JUDGES’S DECISION
6. On 14 January 2019, the Applicant filed his Form 86 against the Board’s Decision. In his affidavit in support of his application, he stated that he could not accept the decision and asserted that he was still subjected to the risks as stated in his claim as before. He reiterated what had been put before the Board but did not put forth any proper ground for his intended challenge. At the hearing, he did not identify any error of law or irrationality or procedural unfairness in the process before the Board. (see paragraph 12 of the Form CALL-1).
7. The Judge noted that the Board rejected the Applicant’s claim essentially on its findings on the credibility of his bare assertions of fear of harm which arose from some political activities unsubstantiated by any reliable or acceptable evidence. The Judge found no fault in the Board’s observation that, even if his assertions were true, the risk of harm to him would have dissipated over the lengthy passage of time as well as the significant change of the political landscape in Sri Lanka (see Board’s Decision at paragraphs 43 ‑ 67). Noting that the Board had the benefit of hearing the Applicant’s oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer, in the absence of any error of law or procedural unfairness properly identified by the Applicant in his process before the Board or in its decision, the Judge did not find any reasonably arguable basis to challenge the finding of the Board (see Form CALL-1 at paragraph 14).
8. Further, the Judge found that even if the Applicant’s claim was true, it was a localized risk and that it was not unreasonable or unsafe for him to relocate to another part of Sri Lanka (see Form CALL-1 at paragraph 15).
9. For these reasons, the Judge refused to grant leave to apply for judicial review.
THIS APPEAL
10. In his Notice of Appeal dated 17 January 2022, the Applicant asked for an order to set aside the Order dated 7 January 2022 by the Judge and he be allowed to “pursue in applying for leave for judicial review”. The Applicant stated as his grounds of appeal the followings:
(1) he will face hardship if he is to return back to his home country; and
(2) the Board had relied on news sources which were not officially recognized, or simply hearsay; and have relied on outdated cases and information not of credible source.
11. In his written submission dated 28 February 2022, the Applicant put forward the following main points:
(1) The decision of the Board has a significant effect on the Applicant and high standards of fairness are required in the process (Secretary for Security v Sakthevel Prabakar[5] cited);
(2) As the Applicant’s appeal before the Board is a rehearing, the Board erred in approaching the matter by just examining whether he could “find fault with the decision of the Immigration Officer”;
(3) To fulfil its duty of rehearing, the Board ought to have considered matters such as the conditions of the Applicant’s country of origin but it did not do so; and
(4) The Board failed to act fairly which has been described as a “constitutional duty”.
12. At the hearing of this appeal on 19 April 2022, the Applicant repeated some points stated in his submission stressing that the option of relocation is not viable. He also stated that as he has been in Hong Kong for so long and was out of employment, he would not be able to start his life again in Sri Lanka.
DISCUSSION
13. 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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
14. The Applicant made assertion that he would face hardship if he returns to Sri Lanka, and commented about the assessment of evidence and COI materials, consideration of risk of harm, state protection and viability of internal relocation by the Board. These are all matters primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022.
15. The Board has clearly demonstrated in the Board’s Decision that it has discharged its duty of rehearing in a fair manner and examined relevant materials with care. There is no substance in this complaint.
16. Having considered everything the Applicant said in the Notice of Appeal, written submission and at the hearing, we do not find he has raised any viable grounds of appeal against the Judge’s decision in refusing his application for leave to apply for judicial review.
17. The Applicant’s appeal has no merits, and is accordingly dismissed.
(Anderson Chow)
Justice of Appeal | (Albert Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented, appeared 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 being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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 persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[5] [2005] 1 HKLRD 289.