HITIHAMY MUDIYANSELAGE HIRANTHA BANDARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3268/2019

[2025] HKCFI 4005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.3268 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 be refused.

Observation for the Applicant:

THE APPLICATION                                                                        

1.  The applicant applies for leave to apply for judicial review of the Corrigendum Decision dated 14 September 2018 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. He appeared before the Court on 4 August 2025.

The applicant                                                                                                                    

3.  The applicant is a national of Sri Lanka. Between the period of 2005 and 2012, he was an illegal immigrant and was arrested and repatriated 3 times. On 28 December 2015, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by S.B. Dissanayake (“SBD”), the minister of Social Empowerment and Welfare, and his people because he refused to support SDB and he has information of SDB’s corrupt business.  SDB’s supporters are afraid that he may disclose such information in detriment of SDB.

4.  Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003268_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 22 January 2018, the Board conducted an oral hearing for his appeal. The applicant and the Director were respectively legally represented.

8.  Having considered the evidence, the Board found that the applicant failed to make out a case for non-refoulement protection for the reasons below.

(1)   He had not been inflicted with any serious injuries.[24]

(2)   For the reasons stated in the Board’s Decision, there is no reason that the SDB’s supporters would go after him if he returns to Sri Lanka. [24]

(3)   The Country of Origin Information (“COI”) showed that state protection is available to him upon his return to Sri Lanka. [29]-[30]

(4)   Internal relocation is viable for him. [42]-[46]

9.  The Board had made a corrigendum of the Board’s Decision because the Board, in its original Board’s Decision, had referred to Bangladesh in its consideration of the COI. See paragraphs 28 and 29 of the Board’s Original Decision. In the corrigendum Board’s Decision, the Board had referred to Sri Lanka’s information instead of that of Bangladesh.

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

10.  The applicant has filed Form 86 dated 4 November 2019 for leave to apply for judicial review of the Board’s Decision. The applicant had given oral evidence and answered questions from his lawyer, the government’s lawyer and the adjudicator.

11.  In his affirmation in support of his application, the applicant set out his grounds of appeal, saying that the Board had committed an error of referring to Bangladesh for COI reference. He further alleged that this mistake demonstrates that the Board did not consider his case independently, but only recycled the Director’s Decision. He submitted that it is unfair to him, and he should be given another chance to have his case considered by another Board differently constituted.

DISCUSSION

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. 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).

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 attempted to submit articles, which, as according to him, would show that his enemies will kill him if he returns to Sri Lanka. He said that he had already provided the materials to his lawyer and the Board. This Court refused to accept the articles.

14.  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.”

15.  He complained that the Board had made an error on its reference to Bangladesh instead of Sri Lanka. This is a fact, which the Board had rectified by its corrigendum Board’s Decision. The question for the Court is whether such mistake is a serious mistake that should change the Board’s conclusion or it will cause unfairness or injustice to the applicant under the principle of advanced standards of fairness.

16.  The main reason for the Board to dismiss the applicant’s appeal is that he will not have any real risk of harm if he returns to Sri Lanka. The Board has given its reasons under paragraph 24 of the Board’s Decision. Having considered the relevant facts of the case, the Board took the view that the election was over 10 years ago. The gangsters supporting SBD had agreed not to harm him if he did not disclose SBD’s secrets. He had not broken his promise not to disclose SBD’s secret to anyone. The applicant has not raise any reason that he had to disclose SBD’s secret. I therefore consider that it is reasonable for the Board to come its conclusion that he will not face any real risk of harm if he returns to Sri Lanka.

17.  The mistake of reference of the country of origin information is not so important that will cause unfairness or injustice to the applicant. This is the information for the Board to consider state protection for the applicant if he returns to his country. If the Board is correct in its conclusion under paragraph 16, state protection will not be necessary to be taken into consideration. In fact, the applicant has not pointed out the consequence of the mistake himself.

18.  I find that though the Board had committed a mistake as to the country for the country of origin information, this mistake will not advance the applicant’s case because this slip of reference does not adversely affect the integrity of the Board’s decisions on the applicant’s appeal against the Director’s Decision. The Board had made its findings on the facts of his claim. See paragraph 8. The COI only refers to state protection. In the Corrigendum Decision, the Board had re-considered state protection in Sri Lanka. This error has been rectified by the Board. In my view, this error does not affect the other findings of the Board under paragraph 8.

19.  The Court of the First Instance in Wong Chau Ming v Secretary for Civil Service [2023] HKCFI 2468, 19 October 2023, Coleman J, held:

“82. … What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence, unless they in totality can be seen to have destroyed the integrity of the entire process, do not go to prove that administrative process is rendered unlawful.”

20.  The applicant has raised no valid ground to challenge the Board’s findings. For the reasons above, this Court does not find any reason to interfere with the Board’s Decision.

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

DISPOSITION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 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