HETTIARACHCHIGA JANAKA WIJERATHNA alias HETTIARACHCHIGE JANAKA WIJERATHNA alias HATTIARACHCHIGA JANAKA WIJERATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2014/2019

[2024] HKCFI 2431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2014 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 14 June 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 did not ask for a hearing. Pursuant to Order 53, Rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 is a national of Sri Lanka, aged 47. He came to Hong Kong as a visitor on 5 April 2005. He did not depart and overstayed since 6 May 2005. He surrendered to the Immigration Department on 14 August 2006. He raised his torture claim in 2006, which was rejected. On appeal, the Board dismissed his appeal. On 13 September 2006, he raised his non-refoulement on the other applicable risks as described below on the basis that, upon refoulement, he would be harmed or killed by his enemies, who were the group of the United People’s Freedom Alliance (“UPFA”) and the police officers who were members of the rival political party of UPFA; that is the United National Party (“UNP”), the same party he belonged to and they had attacked the UPFA members before.

5.  According to the applicant, he was a member of UNP. Some of the police officers were also member of it. They had attacked the UPFA members from time to time in order to tout them to join their party. In 2002, the UPFA became the ruling party after election. The UPFA members then took revenge against the UNP members. Between 2002 and 2005, he was twice attacked by the UPFA people with weapons. He had complained to police, which took no action. He had to move from place to place, such as Ulapane in Kandy District and Ehetuwewa to avoid the UPFA people. The police officers who were UNP members also threatened to kill him as they feared that he might disclose their identity to the UPFA. His two friends, Jude and Pradeep were killed. In 2005, he decided to leave his country in order to be safe. He sent his wife and child to Hong Kong first. Then he came to Hong Kong. He is of the view that he cannot relocate in his country as the police officers may be able to locate him.

The Director’s Decisions

6.  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”).

7.  By way of the Notice of Decision dated 19 August 2015 (“the Director’s 1^st Decision”), the Director dismissed the applicant’s claim on BOR 3 risk and Persecution risk. In elaboration, the Director found (i) the low intensity and frequency of ill-treatment in the past indicates that the future risk is not real or foreseeable [15]; (ii) state protection will be available to him [16]; and (iii) internal relocation is viable [17]-[21].

8.  The applicant was invited to supply information of the BOR 2 risk. He did not add any new materials to the Director.

9.  By Notice of Further Decision dated 24 April 2017 (“the Director’s 2^nd Decision”), the Director rejected his claim on BOR 2 risk as well. The applicant did not appeal the Director’s 1^st Decision to the Board.

The Board’s Decision

10.  The applicant appealed the Director’s 2^nd Decision to the Board.

11.  The Board recapped the applicant’s case. Since the applicant had given no additional information to it, it considered that it was not necessary to hold an oral hearing. Having considered the evidence, the Board found that there was no evidence to support the applicant’s claim on BOR 2 risk. It therefore dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

18.  The Court of Appeal in in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“ 59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].

19.  The applicant has not appealed the Director’s 1^st Decision to the Board, the Director’s findings on the BOR 3 risk have become final. Therefore, his claim on BOR 2 risk is not sustainable.

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

DISPOSITION

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