GALLOLU KANKANAMALAGE NIMAL PERERA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 224/2025, [2025] HKCA 904

On Appeal From [2025] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 224 OF 2025

(ON APPEAL FROM HCAL NO. 2632 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court)  :

1)  The appeal

1.    This is an appeal by the applicant against the Judgment of Deputy High Court Judge KW Lung of 22 April 2025 in which he refused to grant leave to apply for judicial review.

2)  Background

2.  The applicant is a national of Sri Lanka.  He arrived in Hong Kong in May 2004 and overstayed his visa, and was arrested in December 2004. The applicant was in the hospital at the time for injuries relating to a traffic accident. He later absconded until he was arrested again in August 2005 for working illegally. On 26 November 2005, the applicant made a torture claim. The Immigration Department rejected his torture claim on 22 June 2012. The applicant petitioned to the Torture Claims Appeal Board (‘the Board’), and the Board rejected the petition on 3 September 2012. The applicant lodged a non-refoulement claim on the remaining 3 applicable grounds on 22 April 2013, which was rejected by the Immigration Department on 28 September 2018. The applicant appealed to the Board on 9 October 2018[1]. 

3.  The basis of the applicant’s claim is that he would be harmed or killed by his brother-in-law upon return to Sri Lanka because of the applicant’s failure to repay a loan[2].

4.  The background facts have been summarised in the Judgment at [7].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s torture claim on 22 June 2012[3] (‘the Director’s 1^st Decision’).

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 28 September 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk as well as other statutory and convention rights against persecution, except for torture[4] (‘the Director’s 2^nd Decision’).

4)  The Board’s Decision

7.  The applicant appealed/petitioned against the Director’s 2^nd Decision to the Torture Claims Appeal Board on 9 October 2018[5] (‘the Board’).  An oral hearing was held on 7 March 2019.  By a decision dated 29 July 2019, the Board dismissed the appeal/petition (‘the Board’s Decision’)[6].

8.  The Board’s finding is summarised in the Judgment at [11].

5)  Decision of the Judge

9.  The applicant filed his Form 86 and supporting affirmation on 10 September 2019[7].  The applicant did not raise any specific ground to challenge the Board’s decision[8].

10.  The Judge held that the applicant has raised no valid ground to challenge the Board’s findings. The applicant failed to show any realistic prospect of success in his proposed judicial review[9].

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated the following :

‘ I am writing this grounds regarding my case. Truly I come to Hong Kong to seek protection from loan shark and to save my life and still I never pay the loan or interest for him if I go at this moment definitely my life become uncertain and I respect judgment too because I was unable to submit my document proof’

12.  At the hearing of the appeal, the applicant said that his brother, who had helped him obtain the loan, is also now dead because of the failure to repay the loan. His wife is disabled and cannot help him. The ruling political party in the government is connected to the creditor. He has a medical condition which needs to be attended to and cannot be attended to in Sir Lanka. He has an artificial bone in one hand, and the other hand is numb. He wants to stay in Hong Kong for a further five years.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merit.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against the refusal to grant leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments or matters raised by the applicant shows the Judge has made any error of law.

15.  In his written submissions, the applicant said that he has no property in Sri Lanka and would face a different life there, with no protection[10]. He said that he had no support or protection from family in Sri Lanka as both his mother and his younger brother had died[11]. He said that the loan shark took away his family property[12]. He claimed that the loan shark is connected with the Sri Lanka police[13]. All of the applicant’s written submissions raise factual matters that are within the province of the Board. As to the matters raised in the oral hearing, insofar as these are new factual assertions relating to the harm which he says that he would face if refouled, these are matters which should have been raised before the Board; there is no basis for the admission of new evidence at this stage. As for the applicant’s medical condition, this does not assist in his claim for non-refoulement.

16.  We see no basis to disturb the Judgment.  Accordingly, the appeal is dismissed.