KACHCHA KADUGE VICTOR FERNANDO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2409/2019

[2025] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2409 of 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion.

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 2 August 2019 (“Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) respectively dated 22 November 2013 and 23 July 2018 (respectively “Director’s 1^st and 2^nd Decisions”) rejecting the applicant’s non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondent.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 7 January 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Sri Lanka.  The applicant’s case was that he sneaked into Hong Kong illegally by boat on 24 January 2007.  On 25 September 2007, the applicant lodged a torture claim.^[1]

6.  On 31 July 2013, the applicant lodged his non-refoulement claim under all applicable grounds except the risk of torture - BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by the People’s Alliance Party (“PA”) which was later merged into the United People’s Freedom Alliance Party in 2004 because of his political affiliation with the United National Party (“UNP”).

7.  The applicant claimed that in 1986, he joined UNP as a member.  In 2000, he worked for a politician of UNP, and helped him to campaign in the general election for a seat in the Parliament.  During his political involvement, there were scuffles between supporters of UNP and PA.  The applicant cited three incidents in July and August 2006.  In the first incident, he believed he was struck by a pistol-like hard object and lost his consciousness.  No hospital treatment was needed.  In the second incident, a supporter of PA hit the right side of his face, but no injury was caused.  In the third incident, after the windows of his house were smashed, he was cut by a piece of broken glass.  In October 2006, he received three anonymous phone calls threatening to kill him. The applicant decided to ask an agent to help him leave home.  On the same day, the provincial council, which was under the control of PA, removed and confiscated the sands in his garden.  The applicant closed down his business in Christmas 2007, and left Sri Lanka.  The applicant claimed that even after he had arrived in Hong Kong, he learnt from his family that there was still harassment by his enemies.

8.  In the Director’s 1^st Decision, the Director decided against the applicant’s claim on torture risk on the basis that the claim did not amount to “torture” and even if the claim was credible, there was no real risk of torture upon his return.  The Director rejected his torture claim.

9.  On 6 December 2013, the applicant lodged an appeal/petition against the Director’s 1^st Decision.  On 3 March 2014, he submitted an application for adjournment of his appeal.

10.  In the Director’s 2^nd Decision, the Director decided against the applicant’s claim on all applicable grounds other than torture risk.  The Director assessed the claimed risk of ill-treatment to have been low as the applicant had only been of low intensity and the frequency of past ill-treatment from PA was also low.  After having considered the country of origin information reports (“COI”), the Director was satisfied that state protection was available and that internal relocation alternatives were available and reasonable.  Hence, the applicant’s appeal to the Board against the Director’s Decisions.

11.  On 16 May and 11 June 2019, the applicant and his counsel instructed by the Duty Lawyer attended the hearings before the Board. The applicant adopted all the information contained in the documents.  Since the applicant had adjourned his appeal against the Director’s 1^st Decision, the Board therefore heard his appeal against all applicable grounds including the ground on the risk of torture.  After having considered the applicant’s evidence of his account of the events, the Board found that the suggestion that the people of PA was intending to harm him was only speculative.  The Board found that the applicant’s evidence was not reliable, and concluded that he had not made out a case that he needed non-refoulement protection.  The Board also found that it would not be unreasonable or unduly harsh for the applicant to live elsewhere.  The option of internal relocation could effectively eliminate his claimed risk of harm.  The Board dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

Legal principles applicable to judicial review

12.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

13.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited  a copy of the Board’s Decision and put forward three grounds in support of the Leave Application on the grounds of:

(1)  irrationality (that the Board had rejected his evidence);

(2)  procedural impropriety (in that the Board had failed to make enquiry into the confrontation among different parties) ; and

(3)  bias (i.e. the bias observation of the COI).

14.  At the hearing, the applicant informed this court that his enemies are now supporters of a political party called “Janatha Vimukthi Peramuna” (“JVP”), which is now a party in power.  His former enemies have now joined the JVP. Since he stated that the affirmation was prepared by his lawyer, I asked the applicant if he wanted to be reminded of the grounds stated in his affirmation so that he could elaborate on them at the hearing.  He said there was no need. Notwithstanding, this court reminded him of the first ground on “irrationality”, and asked him if he wanted to elaborate more.  However, all he said was that he only needed to stay in Hong Kong for another 2 years as he is currently waiting for a family sponsorship from his children in Sweden.  Apart from stating that his health was not good and was waiting to go to Sweden, he said that he did not want to be reminded of the grounds nor did he have anything further to submit.  He even stated that he was already preparing to file any appeal as soon as his Leave Application is rejected.

15.  The applicant’s stated three grounds are bare assertions.  It is clear that at the two hearings before the Board, the Board had provided sufficient time and opportunity to the applicant to clarify matters.  Furthermore, the applicant was represented by counsel and had adopted all the documents contained in the hearing bundle.  The applicant’s contentions are without any supporting evidence.

16.  The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail.  It found that the applicant’s account of events did not amount to any threat or risk and that even if there were any threats, the applicant would have the option of state protection and internal relocation.  These are findings of fact, which the court in a judicial review will not interfere with.

17.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

18.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

19.  The Form 86 is amended on the court’s own motion.

20.  The Leave Application be dismissed

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