Re Mudannayakalage Chaminda Pushpa Kumara

CACV 92/2018

[2018] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2018

(ON APPEAL FROM HCAL NO 417 OF 2017)

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JUDGMENT

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

1. This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock of 23 March 2018 refusing leave to apply for judicial review.

2. This appeal was originally listed for hearing on 13 July 2018. At the time when the hearing date was fixed, the Court also gave direction for lodging skeleton submissions with an unless order that if such submissions were not lodged, the hearing date would be vacated and the appeal shall be processed on the papers based on materials already filed by the applicant. Notwithstanding such unless order, the applicant did not lodge his skeleton submission. Non-compliance with such requirement, notwithstanding an unless order, is treated by the Court as the abandonment of the right to an oral hearing, see Re Manjit Kaur [2018] HKCA 247, Re Miha Md Limon [2018] HKCA 278, Re Ali Arshad [2018] HKCA 304, and Re SK Sarf Araj [2018] HKCA 307.

3. Accordingly, the hearing date was vacated. We now deal with this appeal based on materials already lodged.

Background

4. The applicant is a Sri Lankan national. He left Sri Lanka for the Mainland China, via Singapore, on 17 May 2004. He entered Hong Kong on 22 May 2004 with a permission to remain as a visitor until 21 June 2004. He overstayed and was arrested by the police for robbery on 20 December 2007. He lodged his torture claim on 9 January 2008.

5. The applicant was later convicted of the offence of robbery on 24 June 2008 and was sentenced to imprisonment for 4½ years. He was discharged on 18 December 2010. A Removal Order was issued on 21 January 2011 and served upon the applicant on 27 January 2011. He was released on recognizance on 28 January 2011.

6. The applicant’s torture claim was processed as a non-refoulement claim. The basis of the applicant’s claim was that, if he is returned to Sri Lanka, he would be harmed, or even killed, by the Sri Lanka Navy because he deserted the Navy in around February 1999. He also feared that he would be harmed, or even killed, by Duminda Silva (a political rival of his employer Mr Bharatha Lakshman), and/or his people from the United National Party upon his return by way of revenge.

7. By a Notice of Decision dated 30 November 2015, the Director of Immigration rejected his claim. The Director considered that there was no real intention of the Navy to kill the applicant. The risk of being arrested by the Navy was a direct legal consequence of his being a Navy deserter, and there was no evidence indicating that he would not receive a fair trial on the matter. Furthermore, the Director noted that the Sri Lankan government had regularly declared general amnesty for deserters. The Director also took the view that there was no evidence indicating that the applicant was the target of the shooting incidents. The low intensity and low frequency of ill-treatment indicated a small future risk of harm upon his return to Sri Lanka. The Director also considered that the availability of state protection and the viability of internal relocation would lower the perceived risk of harm. The Director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

8. The applicant appealed to the Torture Claims Appeal Board. The Board noted that the applicant received no mistreatment during his service for the Navy. The Board also shared the director’s finding that the Sri Lankan government routinely granted amnesty to deserters. The Board found no state involvement in relation to the shooting incidents, as well as that neither he nor his family had been harassed by the Sri Lankan police and that the applicant encountered no impediments when he left Sri Lanka. The Board dismissed the appeal on 27 April 2017.

The Deputy Judge’s decision

9. The applicant filed the form 86 on 17 July 2017 in respect of the Board’s decision. According to the document entitled “Grounds of Appeal” annexed to the form 86, apart from reciting his background and the facts, the applicant advanced the following grounds for seeking relief:

(a) The Board failed to take into account of the fact that the applicant might be perceived by the Navy as a suspect who had leaked information to the enemy, as such would be subject to torture and interrogation; and

(b) The Board failed to consider that, although Duminda was put in prison, his organization still existed and would take revenge against him.

10. The applicant also filed an affirmation on 17 July 2017 in support of his application for leave to judicial review, in which the applicant simply exhibited thereto the aforesaid “Grounds of Appeal” and articles downloaded from the internet regarding Duminda.

11. The Deputy Judge...