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

HCAL 2632/2019

[2025] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2632 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. He appeared before the Court on 12 March 2023.

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. He arrived in Hong Kong and was permitted to remain as a visitor until 1 June 2004, but he did not depart and instead overstayed. He was arrested for the offences of breach of condition of stay during an anti-illegal worker operation and was convicted and sentenced to three months’ imprisonment.

5.  The applicant lodged his torture claim on 26 November 2005, which was refused by the Director on 22 June 2012. The applicant lodged his non-refoulement claim by written representation.

6.  The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his failure to repay the loan.

7.  According to the applicant, he had borrowed money from the creditor and he was unable to repay the debt, the creditor and his subordinates had assaulted him by bare hands and kicked his stomach and leg. They threatened to kill him, too. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 28 September 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

8.  The applicant had made a torture claim and his application was rejected, 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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that it did not accept that the creditor’s assault had attained the minimum level of severity and the risk of harm was assessed to be low [17-19]; that state protection was available [20]; and that internal relocation alternatives were available and reasonable [21].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing for his appeal.

11.  Having considered the evidence, the Board found that the applicant exaggerated the risk of harm from his creditor [61] and he did not face a real risk of the proscribed harm from debtors, gangsters, or other enemies [69]. In conclusion, the Board held the applicant’s claim failed under all applicable risks. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 10 September 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 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. Before me, the applicant said that he is still unable to repay his debt. If he returns to Sri Lanka, he will be killed.

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 applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

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