KANDIAH VASUDEVAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 551/2024, [2025] HKCA 500

On Appeal From [2024] HKCFI 3304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 551 OF 2024

(ON APPEAL FROM HCAL NO 2116 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 10 December 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 5 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 September 2018.

BACKGROUND

2.  The Applicant is a national of Sri Lanka. He claimed that he sneaked into Hong Kong illegally in July 2006. He was arrested by the police on 16 April 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim[1] on 21 April 2007, which was rejected by the Immigration Department on 14 February 2013. His appeal against the rejection of the torture claim was dismissed by the Board on 5 April 2013. On 26 April 2013, he lodged a non-refoulement claim, which was assessed on all applicable risks other than the risk of torture. His claim was made on the basis that, if refouled, he would be harmed or killed by the Liberation Tigers of Tamil Eelam (“LTTE”) because he was a member of LTTE, but had leaked information to his uncle when he heard about a plan to kill his uncle. He also claimed that he would be harmed or killed by the Sri Lankan authorities due to his prior involvement with the LTTE. Details of the Applicant’s claim were summarised by the Judge at §§4 and 5 of his decision dated 10 December 2024.

3.  By a Notice of Decision dated 6 September 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to the following risks: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 5 July 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of his decision, as follows:

“The Board had asked the [Applicant] quite a number of questions. It came to the conclusion that the [Applicant] was not a truthful witness [54]. The Board rejected his evidence on the facts of his claim [69]-[73]. It rejected his claim on BOR 3 risk [77], BOR 2 risk [80] and Persecution risk [84]-[85].”

THE JUDGE’S JUDGMENT

5.  On 24 July 2019, the Applicant filed a Form 86 to apply leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or his affirmation of the same date.

6.  On 10 December 2024, the Judge gave his Judgment (“the Judgment”) refusing to grant leave to apply for judicial review, for the following reasons:

“[12] 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…

[13] 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 he had told the Board all his problems. He asked this Court to review the Board’s Decision.

…

[15] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded. There is no valid ground from the [Applicant] to challenge the Board’s Decision.

[16] There is no reason that the Court should interfere with the Board’s finding of the facts.

[17] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 17 December 2024, the Applicant stated the following:

“[T]he Applicant face hardship if he is to return back to his country and the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic change. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

8.  In his 3-page written submission lodged on 14 April 2025, the Applicant stated that he disagreed with the decisions of the Director and the Board. He alleged that he believed his case had not been determined fairly and the decisions of the Director and the Board were also unreasonable and irrational in public law sense. He also complained about not being provided with legal or language assistance, and that he did not fully understand how his case was determined.

9.  At the hearing of the present appeal, the Applicant stated that he had nothing to add to the points raised in his notice of appeal and written submissions.

DISCUSSION

10.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  As earlier mentioned, the Applicant did not give any ground of judicial review in the Form 86 or his affirmation filed in support of the leave application below. The matters stated in the Notice of Appeal and his written submissions are new points which were not raised in his application below. He is not entitled to raise them for the first time in the Court of Appeal. In any event, they are all vague and general, and plainly have no substance. As for his complaints about lack of legal or language assistance, the Applicant was provided with legal and language assistance in relation to the assessment of his non-refoulement claim by the Director. He also had language assistance in the hearing of his appeal before the Board. It is well established that a non-refoulement claim is not entitled to legal and/or language assistance at every stage of the non-refoulement process.

13.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal against the Order has no merit, and is dismissed.