WEWELVALA MANGALA NILANTHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review of the Board’s 2^nd 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 1^st 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 2^nd 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 1^st Decision”), dismissing the appeal against the Director’s 1^st Decision; and

(2)  Decision dated 21 October 2019 [sic] (“the Board’s 2^nd Decision”), dismissing the appeal against the Director’s 2^nd Decision.

3.  The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision only. Since the Board’s 2^nd Decision relied upon the same facts for the Board’s 1^st Decision, I shall take into consideration of the Board’s 1^st 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 1^st 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 2^nd 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 1^st  Decision to the Board. On 29 July 2016, the Board conducted an oral hearing for his appeal against the Director’s 1^st 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 1^st Decision. The applicant did not challenge the Board’s 1^st 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 2^nd 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 2^nd Decision.

17.  In his affirmation in support of his application, the applicant did not raise any specific ground against the Board’s 2^nd 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 2^nd 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 1^st 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 2^nd Decision.

DISPOSITION

24.  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.

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

Form CALL-1