CACV 11/2023, [2023] HKCA 596
On Appeal from [2023] HKCFI 38
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 11 OF 2023
(ON APPEAL FROM HCAL NO 335 OF 2019)
________________________
BETWEEN
| | RUPASINGHA ARACHCHIGE SHIROMA THARANGANI | Applicant |
and |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS
PETITION OFFICE | Putative
Respondent |
and |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon G Lam JA and Lisa Wong J in Court
Date of Judgment: 12 May 2023
_________________
J U D G M E N T
_________________
Hon G Lam JA (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 3 January 2023 refusing to grant the applicant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 January 2019. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 March 2018 rejecting her non-refoulement claim.
Background
2. The applicant is a national of Sri Lanka born in 1967. She arrived in Hong Kong on 4 March 2009 to work as a foreign domestic helper but her contract was prematurely terminated in June 2009. The applicant did not leave Hong Kong as required and had overstayed since 21 June 2009. She surrendered to the Immigration Department over 5.5 years later on 9 February 2015 and lodged a claim for non-refoulement protection on 26 February 2015. Her claim was based on the fear that she would be harmed or killed by her brother’s murderers because she had witnessed the murder.
3. The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4] By notice of decision dated 26 March 2018, the Director rejected the claim.
4. The applicant appealed to the Board against the Director’s decision. The Board held a hearing on 16 November 2018 at which the applicant gave evidence and answered the Board’s questions. In its written decision issued on 25 January 2019, the Board dismissed the applicant’s appeal for reasons which were summarised by the Judge in paragraph 10 of the Form CALL-1 as follows:
“ 10. In its decision the Board accepted the Applicant’s claim of fear of harm from the drug dealers who murdered her brother almost 15 years ago but found no evidence of any real intention of them to seriously harm or kill her or that they would still be any adverse interest in her after all these years when she had left the country in 2009 without assisting the police or acting as any witness in any court trial that it is not accepted that there would still be any adverse interest in her, and that in any event as a murder witness she would be entitled to state or police protection upon her return to Sri Lanka if threats from those drug dealers still persist to negate any such risk that her claim for non-refoulement protection failed on all applicable grounds.”
The Judge’s decision
5. On 4 February 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form or in the accompanying affirmation other than the repeated assertion that her life would be at risk if she returned to her own country.
6. The Judge held a hearing on 28 July 2022 at which the applicant attended but she told the Judge that she had nothing to add to the matters stated in her Form 86 and affirmation. On 3 January 2023, the Judge issued his decision in writing, refusing to grant the applicant leave to apply for judicial review. The reasons were set out at [11] – [15] of the Form CALL-1 as follows:
“ 11. On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
13. In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”
The appeal
7. In her notice of appeal filed on 13 January 2023, the applicant merely repeated that her brother’s killer would try to kill her as she was a witness of the murder.
8. The applicant’s appeal was originally listed for hearing on 18 April 2023. By the directions of the Registrar of Civil Appeals dated 21 February 2023, the applicant was reminded of her duty to lodge her skeleton argument for the appeal and was also informed that if she should fail to do so, the hearing date would be vacated and the Court of Appeal would proceed to consider the appeal on paper only. The applicant did not lodge any skeleton argument, and accordingly the hearing was vacated, and we have proceeded to consider the appeal on the papers alone.
Discussion
9. In assessing the merit of the appeal, we have regard to the principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration;[5]Re Md Shohel Sheak;[6] and Re Limbu Birkhaman.[7] In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.
10. In the present case, the Board found on the basis of the evidence including the applicant’s testimony before the Board that there was no real risk of harm upon refoulement as alleged by her and that, in any event, state or police protection would be available. This is a conclusion open to the Board on the basis of the evidence available to it. The applicant has not been able to show any public law grounds, either in the documents filed or at the oral hearing before the Judge, for impugning that decision.
11. Equally the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any reviewable error in the Judge’s decision.
12. Accordingly, the applicant’s appeal must be dismissed.
| (Godfrey Lam) | (Lisa Wong) |
| Justice of Appeal | Judge of the Court
of First Instance |
The Applicant, unrepresented, acting in person
[1] This refers to the 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).
[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 and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] [2018] HKCA 524 at paragraph 14
[6] [2018] HKCA 714 at paragraph 13
[7] [2019] HKCA 50 at paragraph 11