|
HCAL 3193/2019
[2025] HKCFI 3134
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3193 of 2019
| BETWEEN |
|
|
|
Wewelvala Mangala Nilantha |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration |
Putative 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 K.W. Lung:
Leave to apply for Judicial Review of the Board’s 2nd Decision be refused.
Observations for the Applicant:
THE APPLICATION
1. The Director of Immigration (“the Director”) had issued:
(1) Notice of Decision dated 13 May 2015 (“the Director’s 1st Decision”), dismissing the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk; and
(2) Notice of Further Decision dated 8 September 2017 (“the Director’s 2nd Decision”), dismissing the applicant’s claim on BOR 2 risk.
2. The Torture Claims Appeal Board (“the Board”) had issued:
(1) Decision dated 2 March 2017 (“the Board’s 1st Decision”), dismissing the appeal against the Director’s 1st Decision; and
(2) Decision dated 21 October 2019 [sic] (“the Board’s 2nd Decision”), dismissing the appeal against the Director’s 2nd Decision.
3. The applicant applies for leave to apply for judicial review of the Board’s 2nd Decision only. Since the Board’s 2nd Decision relied upon the same facts for the Board’s 1st Decision, I shall take into consideration of the Board’s 1st Decision in this application.
4. The applicant asked for a hearing. He appeared before the Court on 9 June 2025.
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, and the date of the Board’s Decision is 21 October 2019 instead of 25 October 2019.
The applicant
6. The applicant, aged 53, is a national of Sri Lanka. He was permitted to stay as a visitor until 16 August 2005. He overstayed and was arrested by police and referred to the Immigration Department. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his enemies, Samarasinghe and Matale Weeshab (“the enemies”), to whom his father owed approximately 3-4 million Sri Lankan Rupees.
7. According to the applicant, his father ran a shop. He and his brother assisted him. His father passed away leaving them the shop and the business. The enemies demanded him to repay the father’s loan, which he was unable to do. The enemies had, on 3 occasions, pointed a gun at his right temple, demanding repayment of the loan, punched and kicked him and burned his right leg with cigarette butt. They had also threatened to kill him if he failed to repay the loan. Those are the reasons for him to flee his country for Hong Kong.
8. Details of his claim are set out at paragraphs 13-28 of the Board’s 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 1st Decision, the Director dismissed the applicant’s claim on the Torture risk, BOR 3 risk and Prosecution risk because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. By way of the Director’s 2nd Decision, the Director also dismissed the applicant’s claim on BOR 2 risk as he failed to establish this claim by evidence.
The Board’s Decision
11. The applicant appealed the Director’s 1st Decision to the Board. On 29 July 2016, the Board conducted an oral hearing for his appeal against the Director’s 1st Decision. The Board raised a number of questions to clarify the facts of his case. [32]-[50]
12. Having considered the evidence, the Board found that the applicant’s evidence was unconvincing and lacking in credibility. [51] As a result, the Board did not accept the facts of his claim and found that the applicant would not be subjected any ill-treatment if he is to be refouled to Sri Lanka. [59]-[61] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003193_2019_files/1st_Board's_Decision.pdf.
13. For the reasons above, the Board dismissed the applicant’s appeal against the Director’s 1st Decision. The applicant did not challenge the Board’s 1st Decision.
14. The Board further found that the applicant failed to establish a real and personal risk of being arbitrarily deprived of his right to life if refouled to Sri Lanka. By way of the Board’s 2nd Decision, it dismissed his claim on BOR 2 risk. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003193_2019_files/2nd_Board's_Decision.pdf.
15.
Application for leave to apply for judicial review of the Board’s Decision
16. The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s 2nd Decision.
17. In his affirmation in support of his application, the applicant did not raise any specific ground against the Board’s 2nd Decision.
DISCUSSION
18. 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).
19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant asked the Court to review the Board’s 2nd Decision.
20. 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.”
21. The applicant has raised no valid ground to challenge the Board’s finding of the facts of his claim.
22. As the applicant has not challenged the Board’s 1st Decision, he has no arguable ground for any BOR 2 risk. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,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].”
23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2nd Decision.
DISPOSITION
24. I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2nd Decision. Accordingly, I dismiss his application.
Dated the 19th day of August 2025
| |
(M.O. WONG)(Ms)
for Registrar, High Court |
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 19/8/2025
Wewelvala Mangala Nilantha
Applicant’s ref. no:
Nil
|
|
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 19/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1576/15/5/108/S32;
BOR 981/17//9/19/S27
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 989/08 and RBCZ 9001252/17 (Formerly RBCZ 601/08)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|