HATANA DEWAYALAGE GAMINI ARIYARATHNA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2903/2019

[2025] HKCFI 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2903 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 30 August 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”) dismissing the applicant’s appeal against the Director’s Further Decision dated 5 May 2017 (“the Director’s 2^nd Decision”) on BOR 2 risk as described below.

2.  The Director had also dealt with the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk in the Notice of Decision dated 1 April 2015 (“the Director’s 1^st Decision”). The applicant had appealed against the Director’s 1^st Decision to the Board. The Board had by Decision dated 1 March 2017 (“the Board’s 1^st Decision”) considered the appeal and dismissed it. The applicant did not apply for leave for judicial review of the Board’s 1^st Decision.

3.  However, since the Board’s 2^nd Decision relies on the same facts in the Board’s 1^st Decision, this Court will take into consideration of the Board’s 1^st Decision in this application.

4.  The applicant asked for a hearing. However, he was absent at the hearing on 24 March 2025. I shall deal with his application on the papers.

5.  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

6.  The applicant, aged 65, is a national of Sri Lankan. He had made a few attempts to enter Hong Kong, but failed. The last attempt was on 3 November 2009 when he came from Macao to Hong Kong. Upon refusal of his entry, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the United People’s Freedom Alliance (“UPFA”). A removal order was issued against him on 27 May 2011.

7.  According to the applicant, he was a supporter of a political party called Janatha Vimukthi Peramuna (“JVP”), which was a rival party to the UPFA. The United National Party (“UNP”) was a ruling party. The UPFA became the ruling party after the election in 2009. Because of his position as a supporter of JVP, he had been assaulted by the UPFA people with wooden poles. As a result, his leg was injured and his left ankle was swollen. He did not seek medical treatment. A few days later, he was waylaid and assaulted by the UP FA people again with metal-like object, wooden pole and bare hands. He sustained fracture in his right index finger and some bruises on his leg and neck. Again, he did not go to hospital for treatment. The UPFA people had also thrown stones at him. They threatened him with a gun, warning him not to support JVP. He had moved to other places. He was afraid he might be located. Therefore, he came to Hong Kong.

8.  Details of his claim are set out at paragraph 6 of the Director’s 1^st Decision.

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that his experiences in Sri Lanka showed that his risk of being harmed or killed is very low if he returns to Sri Lanka; state protection will be available; and internal relocation is viable. [12]-[17]

11.  The Director had requested the applicant to provide additional information for his assessment of his claim on BOR 2 risk. The applicant had submitted a letter, in which he stated the same reasons as in his previous application. The Director, having considered the said letter, found that he had failed to show that he will be subjected to BOR 2 risk if he returns to Sri Lanka. By the Director’s 2^nd Decision, the Director dismissed his claim on BOR 2 risk.

The Board’s Decision

12.  The applicant appealed the Director’s 2^nd Decision to the Board. However, he was late in filing the notice of appeal. According to the Board’s 2^nd Decision, the applicant was late for 15 days. The Board applied section 37ZT of the Immigration Ordinance, Cap. 115 to his case. The applicant had given an excuse that he did not receive the Director’s 2^nd Decision. The Board did not accept his explanation as there was evidence form the Immigration Department that the Director’s 2^nd Decision was sent to his last known address without being returned and he was late for 15 days.

13.  The Board therefore refused to extend time to the applicant to file his notice of appeal, effectively dismissing his appeal.

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

14.  The applicant has filed Form 86 dated 3 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

15.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

16.  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 2^nd 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).

17.  The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny.

18.  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.”

19.  It was the same adjudicator who had considered and dismissed the applicant’s appeal against the Director’s 1^st Decision, which contains all the relevant facts of the case. He was therefore familiar with the merits of the applicant’s case.

20.  In any event, since the applicant had failed in his BOR 3 risk, there is no arguable ground for any BOR 2 risk[1].

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

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

23.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.