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HCAL 2463/2019
[2025] HKCFI 1794
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2463 of 2019
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BETWEEN
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Talpe Mahagodage Jagath Laxman Rohitha Perera |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 26 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 July 2018 (the “Notice”), refusing his application for non-refoulement protection.
Background
2. The Applicant is a Sri Lankan national. He entered Hong Kong on 1 December 2004 as a visitor and overstayed since 1 January 2005. He was arrested by the police on 4 August 2007 and transferred to the Immigration Department. He made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) on 17 August 2007. His Torture Claim was rejected by the Director on 26 September 2013. His appeal against the Director’s decision was dismissed by the Board on 14 July 2014. That decision is final.
3. He also made a non-refoulement claim on 14 June 2013. His non-refoulement claim was assessed on all applicable grounds under the Unified Screening Mechanism (the “USM”) other than Torture Risk ground, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. His claim was also rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the torture claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if returned to Sri Lanka, he will be harmed or killed by supporters of the United National Party (“UNP”) because he worked for a political opponent of the UNP and by the political situation in Sri Lanka.
5. The Applicant, now aged 67, was born in Kandy, Sri Lanka. He is married, and has one son. His parents are deceased. His wife, son, and two siblings are living in Sri Lanka. He had received 11 years’ formal education and had 21 years’ experience working as a product delivery worker, purchaser in a hotel, salesperson, and resident driver of a provincial councillor.
6. He claimed he was a member of the Sri Lanka Freedom Party (the “SLFP”) and supported the People’s Alliance (the “PA”). At the request of his employer, Kamal Belligola, a provincial councillor and member of the SLFP, he agreed to assist the PA in the 2001 parliamentary election. One day, when he and other PA supporters were putting up election posters in Kandy, a group of people dressed in black with caps and masks warned them not to put up any posters, otherwise they would be killed. One of them approached him with a pistol and uttered the same threats. They left without hurting anyone. He reported the incident to Belligola, but did not file any complaint with the police.
7. About ten days later, when he and other PA supporters were putting up posters in Watagama, a group of people in the same outfit armed with wooden clubs, knives and pistols came and assaulted them. He was hit on his head and fainted. He was taken to a nearby clinic for treatment. He later learnt that the assailants were hired by the UNP to stop them from putting up posters. Again, he did not report the incident to the police but told Belligola that he would not continue with the propaganda work.
8. The UNP won the 2001 parliamentary election on 5 December 2001. On the following day, UNP supporters stormed in and damaged Belligola’s house where he was staying. He and Belligola managed to escape in a car. Some gangsters pursued them on motorbikes and shot at them but missed. He then hid in his friend’s home in Mahiyangana. His wife reported the attack to the police, but the police told her that they did not want to get involved. Worried about their own safety, his wife and son relocated to her parents’ home. In the ensuing three years, the Applicant moved from place to place in Sri Lanka until he fled to Hong Kong in December 2004.
9. He was told by his wife that some UNP supporters had been to her home or workplace asking for his whereabouts and threatened to kill him. He also learnt that the gangsters hired by the UNP were still searching for him and asking his relatives for his whereabouts.
10. He said there are many murders in Sri Lanka and he is in fear of his safety under the current political situation there. He claims that state protection is not available because the UNP is the ruling party in Sri Lanka. He does not believe internal relocation feasible because the gangsters hired by the UNP could locate him throughout the country through their powerful network.
The finding of the Board
11. The Applicant testified before the Board. The Board found his evidence vague and unconvincing. He was only a driver of Belligola. The only political activity in which he claimed to be involved was putting up election posters for Belligola and talking to people about SLFP. He was unable to explain why the UNP supporters and gangsters continued targeting him for his very minor role 18 years ago.
12. Furthermore, the Applicant could not explain why, given he had been safe in Sri Lanka until 2004 during which time the UNP was in power, he left the country after the UNP lost the election in 2004 to SLFP, the party to which Belligola belongs and for which he had indirectly worked for. He could not give any plausible explanation as to why Belligola would not have been able to provide him with protection. For these reasons, the Board had concerns about the credibility of his claims. In any event, in view of the low level of his claimed political involvement and the lapse of time, the Board found it incredible that UNP supporters would seek to inflict serious harm on him, if he returned to Sri Lanka now.
13. For these reasons, the Board found there could not possibly be any substantial grounds for finding that he would face a real risk of ill-treatment if refouled to Sri Lanka. Applying the law applicable to the non-refoulement protection to the facts, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM. It therefore dismissed his appeal against the Director’s decision in the Notice.
Legal principles applicable to judicial review
14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].
Grounds for judicial review
15. In his supporting affirmation, the Applicant said he could not accept the Board’s Decision because the gangsters would kill him if he returned to Sri Lanka because of their political difference. At the hearing, after the legal principles in the preceding section had been explained to him, the Applicant confirmed he had no complaint about errors of law, procedural unfairness or irrationality. He repeated what he said in his affirmation. He said the UNP had come back to power. He could not relocate because he had no money. He said his son is now in the United Kingdom and will return to Sri Lanka after four years. His son will give him money to relocate. He asked to be allowed to stay in Hong Kong for four more years.
16. In essence, he is challenging the Board’s finding of fact that he would not face any real harm or risk if returned to Sri Lanka. That is not permissible. His request to stay for four more years in Hong Kong cannot be a ground of application. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
17. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s evidence carefully and tested it against inherent consistency, common sense and contemporaneous country of origin information. It found him incredible and his story implausible. It gave reasons for its finding. These are finding of fact solely for the Board. It was on the basis of these facts that the Board found the Applicant would not face any real risk of ill-treatment if refouled to Sri Lanka. Applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the remaining three applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save for error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, the leave application is refused.
Dated the 8th day of May 2025
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( Seline Sze )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 08/05/2025
Talpe Mahagodage Jagath Laxman Rohitha Perera
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 08/05/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
TCAB 805/13/10/10/S177
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1913/18 (Formerly RBCZ 2002444/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[2] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[4] [2018] HKCA 524 at [14(1)]
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