NAULA ARACHCHIGE ANIL PERERA v. TORTURE CLAIMS APPEAL BOARD

HCAL 937/2021

[2025] HKCFI 3413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 937 OF 2021

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 the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 March 2018 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 57-year-old national of Sri Lanka who had previously in 2001 arrived in Hong Kong as a visitor but overstayed and upon his arrest was subsequently repatriated to Sri Lanka again arrived in Hong Kong in late December 2004 under a passport with a different identity when he again overstayed, and was subsequently arrested by police more than a year later on 7 July 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by some local gangsters hired by disgruntled customers of his former employer due to their personal disputes. He was subsequently released on recognizance pending the determination of his claim with legal representation from the Duty Lawyer Service (“DLS”).

2.  Between January 2008 and September 2011 while released on recognizance pending the determination of his torture claim, the Applicant was arrested by police on 7 occasions for various offences including theft and assault for which he was convicted and given fines or prison terms ranging from 3 months to 12 months.

3.  By a Notice of Decision dated 28 January 2013 the Director of Immigration (“Director”) rejected the Applicant’s claim on risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) upon doubting the credibility of his claimed fear of being harmed or killed due to personal disputes between his former employer and disgruntled customers in his home district, that there is no evidence of him being specifically targeted for harm or any reason for him to be so given that the disputes were between his former employer and its customers, that in any event these were private disputes without any official involvement that would qualify his case as a torture risk within the definition under section 37U(1) of the Immigration Ordinance 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 spread across a vast territory 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 such as Colombo where it would be difficult if not impossible for anyone to locate him.

4.  The Applicant never brought any appeal against the Director’s decision to the Torture Claims Appeal Board (“Board”), but upon the subsequent commencement of the Unified Screening Mechanism (“USM”) in March 2014 applicable to all torture claims, he was allowed by the Director to raise a non-refoulement claim for protection on the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”), for which he was required by the Director by a letter dated 3 October 2016 to return a completed Supplementary Claim Form (“SCF”) within 28 days as required by section 37Y (2) of the Immigration Ordinance on or before 31 October 2016.

5.  However, despite having legal representation from DLS and with extension of time of a further 3 weeks up to 21 November 2016 allowed by the Director, and as by 13 December 2016 the Applicant still failed to return his completed SCF to enable the immigration officer to commence the assessment of his non-refoulement claim, the Director by a notice of the same date treated the Applicant’s non-refoulement claim as having been withdrawn under section 37ZG (1) of the Ordinance.

6.  Some 8 months later on 26 August 2017 the Applicant by a written representation to the Director requested to re-open his non-refoulement claim asserting that he still had danger in his home country, whereupon he was required by the Director on 8 September 2017 in pursuance of section 37ZG (3) of the Ordinance to provide further evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return his completed SCF as previously required for his non-refoulement claim.

7.  By a letter dated 12 September 2017 the Applicant replied that he had strong evidence but without providing any further details or particulars or elaboration as to what evidence it was, and so by another letter dated 15 September 2017 the Director required the Applicant to provide such further information or evidence in support of his request, but which he still failed to do so, and by a Notice of Decision dated 29 September 2017 the Director refused to allow the Applicant to re-open his non-refoulement claim upon finding that he had failed to provide any or sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return a completed SCF for his non-refoulement claim as required under section 37Y (2) of the Ordinance.

8.  On 13 October 2017 the Applicant lodged an appeal to the Board against the Director’s decision, and in his notice of appeal he just repeated his claim of danger in his home country as before, and asserted that he had been detained by the Immigration Department but without any further detains as to the period of his such detention, and for which the Board did not find necessary to hold any hearing and dealt with his appeal on papers, and by a Decision[1] dated 8 March 2018 the Board dismissed his appeal and confirmed the Director’s decision.

9.  In its decision the Board confirmed from information obtained from the Immigration Department that the Applicant was never detained during the material period in October and November of 2006 when he was required by the Director to return a completed SCF for his non-refoulement claim, and hence there was no evidence of any circumstances that might be beyond his control to cause him to be unable to return his SCF as required by the Director under section 37ZG (3) of the Ordinance, that even up to the time when he requested to re-open his claim some 8 months alter that the Applicant still failed to comply with such statutory requirement or to provide any proper explanation for his failure to do so that the Board concluded that the Director had properly and correctly applied the law to refuse the Applicant’s request to re-open his claim that there is simply no basis or merits at all in the Applicant’s appeal.

10.  On 2 July 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date other than asserting that he now has a family with children in Hong Kong that he cannot return to his home country which are clearly not proper grounds to challenge the Director’s decision, nor did he subsequently attend the scheduled hearing of his application without any explanation.

11.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 8 June 2018, the Applicant was therefore more than 3 years late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as noted above that he also failed to attend the scheduled hearing of his application without any explanation, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has failed to put forward any proper grounds for his intended challenge, and that he also failed to attend the scheduled hearing of his application without any explanation. 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 merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the Board dismissed his appeal for the thorough and detailed analysis and reasoning set out in its decision, 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 who has even up to now in his present application failed to comply with the statutory requirement to return a completed SCF for his non-refoulement claim, I am unable to find any reasonably arguable basis for him to challenge the finding of the Board.

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 request to re-open his non-refoulement claim.

18.  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 the absence of any good reason for his such serious delay, I refuse to extend time and 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