HIKKADUWA GALAPPATHTHIGE SARANGA MANOJ KUMARA GALAPPATHTHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2247/2019

[2025] HKCFI 68

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2247 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 27 November 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 42, is a national of Sri Lanka. He last arrived in Hong Kong on 18 April 2005. He overstayed since 24 April 2005 and was arrested by the police on 30 May 2006. The applicant made a torture claim on 2 June 2006, but he withdrew it on 11 November 2013. On the same day, he lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by Jude because he was a supporter of the United National Party (“UNP”).

5.  According to the applicant, he became a campaigner for UNP and assisted in its electioneering work during the General Election in 2004. Meanwhile, Jude was affiliated with the United People’s Freedom Alliance (“UPFA”), the then People’s Alliance (“PA”). He was also a close associate of a parliament member/minister and had connections with underworld gangsters as well as the police. During the election period, the applicant was threatened twice by Jude to stop assisting UNP. He was also assaulted by Jude and his fellows on two occasions when he was putting up posters for UNP.

6.  Two months after PA/UPFA won the election, the applicant was assaulted again by Jude and 4-5 others, during which he lost consciousness. While he was hospitalised, Jude and his people went to vandalise his home and threatened him through his parents. Thereafter, although the applicant moved between various locations, he was told that Jude and his fellows had been looking for him at all those places he went to. Eventually, the applicant left Sri Lanka for Hong Kong on 18 April 2005.

7.  While in Hong Kong, the applicant maintained contact with his mother and was told that Jude was still after him. He was of the view that he could not seek protection from the police because they would not dare to go against PA/UPFA. He also considered internal relocation not viable because there was a registration system in Sri Lanka, so that he would be easily traced

8.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 14 September 2018 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the applicant’s grass-root participation in UNP would unlikely attract any adverse interest [17a]; (ii) the political situation according to the country of origin information (“COI”) was inconsistent with that as described by the applicant [17b]; (iii) state protection would be available [18] and (iv) internal relocation would be viable [19].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 24 June 2019, the Board conducted an oral hearing.

12.  The Board found the applicant had only encountered Jude on two occasions, during which he stopped him putting up posters for UNP. Given the applicant’s grass-root involvement in UNP, the Board found no reason for Jude to target him specifically [20].

13.  In any event, the applicant did not sustain any serious injury during his confrontation with Jude and that the matter was purely a private dispute. Based on such findings together with the availability of state protection and internal relocation according to COI, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [7]-[14], [23]-[41].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant submitted that the Board said that he might relocate to live somewhere else safely. He had tried before but it did not work for him.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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.”

20.  The Board’s Decision is a legitimate conclusion, based upon the facts as alleged by the applicant. The Court does not find anything amiss in the Board’s Decision.

21.  The applicant has raised no valid ground to challenge the Board’s Decision.

22.  There is no reason that the Court should interfere with the Board’s finding of the facts.

23.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.