HATHADURA NALIN WICKRAMARATHNE DE SILVA v. TORTURE CLAIMS APPEAL BOARD

HCAL 3511/2019

[2025] HKCFI 3567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3511 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Sri Lanka, who had previously entered Hong Kong in 2002 under a different identity when he subsequently overstayed, and was arrested for overstaying and other criminal offences that he was eventually in 2008 repatriated to Sri Lanka, again arrived in Hong Kong on 21 January 2015 under his present identity from China in transit in his flight for Sri Lanka when he raised a non-refoulement claim for protection to the Hong Kong Immigration Department on the basis that if he returned to Sri Lanka he would be harmed or killed by certain underworld gangsters for refusing to join them or to work for them.

2.  The Applicant was born and raised in Pinwatte, Panadura, District Kalutara, Sri Lanka where underworld gangs were active in recruiting local youths in their illegal activities such as blackmailing, burglaries and trafficking weapons.

3.  In the late 1990s, some of those gangsters approached the Applicant to recruit him for their illegal activities, and when he refused they then demanded that he should allow his home to be used for storing some of their hidden weapons, to which the Applicant also refused that those gangsters then left.

4.  However, shortly thereafter some other gangsters came to the Applicant’s home asking for the weapons which they thought were being stored in his house, and when the Applicant denied the existence of such weapons being stored in his house, those gangsters disbelieved him and threatened to kill him next time if he failed to hand over the weapons, as a result the Applicant became fearful for his life and departed Sri Lanka in 2002 for Hong Kong under a different identity, and upon his subsequent arrest by the police he was eventually repatriated to Sri Lanka in 2008.

5.  Upon returning to his home district, the Applicant was soon approached by those local gangsters demanding for the return of their weapons or for money to compensate for their loss, and when the Applicant denied ever having held any weapons for them in his home, those gangsters then threatened to kill him if next time he still failed to pay them any money.

6.  On the next occasion when those gangsters returned to beat him violently, the Applicant felt it was no longer safe to remain in Sri Lanka, and so he departed the country again in 2010 for China where he overstayed for some 4 years, and upon his subsequent arrest he was deported from the Mainland on 21 January 2015, and during the transit of his flight in Hong Kong for Sri Lanka, he raised a non-refoulement claim for protection to the Immigration Department, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 February 2015 with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any of the many scheduled screening interviews before an immigration officer due to various alleged reasons.

7.  By a Notice of Decision dated 30 April 2015, the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those underworld gangsters upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to squeeze some money from him, that in any event it was a private monetary dispute between him and those gangsters only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 21 million people spread across a vast territory of more than 64,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

9.  On 14 May 2015, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 8 and 9 of July 2015 before the Board with his lawyer from DLS during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 24 July 2015, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board accepted the Applicant’s claim of fear of harm from those underworld gangsters in his home district over their disputes but found no reliable evidence of any real intention of them to seriously harm or kill him, and that in any event it was a private dispute between them only without any official involvement that state or police protection would be available to the Applicant upon his return to Sri Lanka if resorted to that his claim for non-refoulement protection failed on all applicable grounds.

11.  Meanwhile on 27 January 2017, the Director in writing invited the Applicant to submit additional facts which may be considered relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response from the Applicant, the Director by a Notice of Further Decision dated 14 February 2017 also rejected his BOR 2 claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Sri Lanka.

12.  On 28 February 2017, the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which he again attended another oral hearing on 19 August 2019 before the Board during which he again gave oral evidence and answered questions raised of his BOR 2 claim by the same Adjudicator as before for the Board, and on 4 October 2019 his appeal was again dismissed by the Board[2] which also confirmed the Director’s Further Decision upon finding that he had failed to establish any genuine or substantial or personal risk of irreparable harm under BOR 2 upon his return to Sri Lanka.

13.  On 26 November 2019, the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just attached a copy of the decision and stated that he does not agree with it but without putting forth any proper ground for his intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge of the Board’s decision.

14.  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; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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 under all the applicable grounds.

18.  Moreover, the Applicant recently filed an affirmation requesting to withdraw his application as he wants to return to Sri Lanka but without any details or explanation as to what has happened to his claimed risk in his home country.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1