SIVANETHTHI CHITHRANANDA ABERUWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL2770/2019

[2025] HKCFI 4215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2770 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 oral submissions by the Applicant in open court;

1.   The Form 86 be amended making the Torture Claims Appeal Board/　Non‑refoulement Claims Petition Office the proposed respondent; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 20 September 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 29 August 2019.  He named “USM” as the proposed respondent and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the proposed interested party.  In his supporting affirmation, he annexed a copy of the decision of the Board dated 29 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non-refoulement protection.  At the hearing, he confirmed his intention is to apply for leave to apply for judicial review of the Decision of the Board.  Hence, on its own motion, the Court amended his Form 86 as above to give effect to his intention.

2.  The Applicant is a Sri Lankan national, now aged 47.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below [1] for reference.  He advanced many different grounds of claim.  In his Written Representation lodged in 2009, he claimed he could not return to his home country because he had political problem, ie being a supporter of the People’s Alliance.  He also claimed he was in fear of being harmed or killed by his employer, Mr Silva who is a member of the Parliament, for refusing to kill people.  But in his Questionnaire and subsequently at the screening interview, he claimed that he fears being harmed or killed by Mr Silva, for refusing to traffic in drugs, not to kill people.  At the screening interview, he also produced a letter from a member of the Parliament for the United National Party (the “MP’s letter”) certifying that he is a sincere and ardent supporter of the United National Party and as result of which was subjected to threats and constant harassment causing him to leaving Sri Lanka.  At the appeal before the Board, he raised a new claim that he would be harmed by the Sri Lankan authorities upon realizing he had entered Hong Kong illegally.  When discussing with the Board about state protection, he claimed fear of being killed by terrorist bombings if returned to Sri Lanka.

3.  The Board had a number of concerns with the Applicant’s evidence.  The Applicant did not object to killing people and admittedly he had killed at the request of Mr Silva, but objected to traffic in drugs because he had seen people take drugs and did not like it.  In a related but separate issue in the Written Representation, he said he objected to killing people and that was why he quit his job.  The Board found his explanation unpersuasive and his evidence internally conflicting.  It found the MP’s letter problematic.  It conflicted with his own assertion in the Written Representation that he is a supporter of the People’s Alliance and with his assertion in the Questionnaire that he never belongs to or is associated with any political party.

4.  The Board found the Applicant is not a witness of truth and that he fabricated his claims in relation to his fear of Mr Silva due to his refusal to kill people or to traffic in drugs.  It considered his knowledge of Mr Silva may have been derived from the media as many media articles have been written about Mr Silva’s incidents quoted by the Applicant.  It did not accept the Applicant’s claim that he and his friend had refused to traffic in drugs and that infuriated Mr Silva to such an extent that he killed his friend immediately and a decade later he remains determined to kill the Applicant.  For these and other reasons as set out in paragraphs 102 to 141 of the Decision, the Board rejected all of the Applicant’s grounds of claim. Applying the law applicable to non-refoulement proceedings to the facts it found, the Board found the Applicant had failed to establish his claim to non-refoulement protection under any of the grounds under the Unified Screening Mechanism (the “USM”).  Hence, it dismissed his appeal against the Notice.

Grounds for judicial review

5.  The Applicant did not advance any grounds of application in his Form 86 or in his supporting affidavit.  After the legal principles applicable to judicial review was explained to him, he argued that the Board did not believe his evidence and repeated that he was in danger for refusing to traffic in drugs for Mr Silva.  In essence, he is seeking to challenge the finding of fact by the Board which is impermissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

6.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board extensively researched into the COI and analysed the evidence carefully. It tested the Applicant’s evidence against the COI, common sense and inherent probability.  It found the Applicant incredible and had fabricated his claim and gave reasons for its finding.  There is nothing to suggest that the Board had failed to take relevant matters into account or had taken irrelevant matters into account to justify a challenge of the Board’s finding of fact based on error of law, procedural unfairness or irrationality.  Applying the law applicable to non-refoulement protection to its finding of fact, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

7.  For the above reasons, the Applicant’s leave application is refused.

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

[1]  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002770_2019_files/the_Board's_Decision.pdf