PANAGODA LIYANAGE SURANGA DULIP PERERA v. DIRECTOR OF IMMIGRATION

HCAL 1838/2025

[2025] HKCFI 4555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1838 of 2025

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 submission by the Applicant in open court;

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 18 August 2025 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 May 2025 (the “Notice”), refusing his request for making a subsequent claim for non-refoulement protection (the “Request”).  He now seeks leave to apply for judicial review of the decision in that Notice.

2.  The Applicant is a Sri Lankan national, now aged 42.  He entered Hong Kong as a visitor and overstayed since 19 September 2005.  On 29 June 2007, he lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). He subsequently withdrew the Torture Claim and was repatriated back to Sri Lanka on 2 July 2012.  He sneaked into Hong Kong from Mainland China and surrendered himself to the Immigration Department on 10 May 2013.  He produced his Sri Lankan passport and the Recognisance Form issued by the Immigration Department during his previous stay in Hong Kong as evidence of his identity.  He also produced a Sri Lankan passport under the identity of Dedigma Arachchilage Niroshan Dias (“Dedigma”).  On 27 June 2017, he lodged a non-refoulement claim (the “previous claim”).  His previous claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and refused by the Director.  That claim had run its full course ending with the Court of Appeal’s dismissal on 22 August 2023 of his application for leave to appeal this Court’s refusal under HCAL 455/2019 of his leave application for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dismissing his appeal against the decision of the Director.  

3.  Yet, he resisted his refoulement process and made a Request by letter of 30 October 2024 to the Director for making a subsequent claim and for legal assistance in prosecuting the Request.  His request for legal assistance was referred to the Duty Lawyer Service (the “DLS”) and was approved.  Having considered the additional supporting information submitted by the DLS on his behalf, the Director issued the Notice rejecting his Request.  He now applies for leave to apply for judicial review of the decision in that Notice.

4.  The Applicant’s personal background, the factual background leading to his previous claim, the basis of his previous 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.   

The Applicant’s previous claim

5.  Under the previous claim, the Applicant claims that if returned to Sri Lanka, he will be harmed or killed by a co-worker, Nalin, and/or his underworld gang associated with the United People’s Freedom Alliance (“UPFA”) political party arising from a dispute at work and his being a member of the United National Party (“UNP”). 

6.  The Board found the Applicant’s evidence speculative, vague and lacking in credibility and his claim incredible.  The Board found it incredible that the Chief Minister of the Sri Lankan government in his position would consider the Applicant’s father a threat because of his limited political activities in the UNP and would involve himself in Nalin’s plans to kill or kidnap the Applicant because he used to go with his father to support the UNP.  It also rejected the Applicant’s evidence that the Chief Minister had influenced the police to remand him in custody by exaggerating Nalin’s injuries as it is the Applicant’s own evidence before the Board that he had broken Nalin’s skull.

7.  The Board did not accept that Nalin had tried to kidnap and kill the Applicant or continues to locate him after the Applicant had paid him compensation. It also found it incredible that Nalin would continue to hold an adverse interest in the Applicant and continue threatening or enquiring for his whereabouts after such a long lapse of fourteen years.  

8.  The Board did not accept that as a low level UNP member the Applicant would be targeted by the UPFA.  On the basis of credible country of origin information (“COI”), it found there is nothing to support the Applicant’s contention that UNP members would face a real risk of torture from the UPFA.  

9.  In conclusion, the Board found there was no real risk that the Applicant would face any of the proscribed harm should he be returned to Sri Lanka.  It also found that reasonable state protection is available; and that it would not be unduly harsh for him to relocate to other areas in Sri Lanka to avoid the risk.  In view of the lapse of time any form of harm from Nalin is remote.

Additional information in support of the subsequent claim

10.  In his Request, the Applicant claimed that he will be subjected to three sources of harm and risk, if returned to Sri Lanka.  First, his original fear and risk had heightened.  He was informed by his parents that Nalin and his associates had verbally threatened them, that they are in grave fear and are hiding in the temple to avoid Nalin and his gang.  In addition, he said his parents were recently informed that around 2014 to 2015 one of his friend’s brother, Ruwanjith Vijitha, had been murdered by Nalin’s gang because that friend had assisted the Applicant to attack Nalin back in 2004.  His parents had also sent him a newspaper cutting about the murder.

11.  He also advanced two new sources of fear and harm from Dedigama for having stolen his identity and from the Sri Lankan authorities for his possession of a forged Sri Lankan passport.  He said in view of his past history, he feared that he would be refused entry if he used his genuine passport to enter Hong Kong.  Hence, prior to departing Sri Lanka for Hong Kong in 2013, he instructed his agent to “apply” for a passport for him.  He was then given a passport in the name of Dedigama but with his own photograph on it.  He did not use that passport to enter Hong Kong as he had gone to Mainland China using his own passport and from there he sneaked into Hong Kong.  When Dedigama applied for a traveler’s visa, his application was rejected by the Sri Lankan Authority.  Eventually Dedigama discovered that the Applicant had used his identity to apply for a visa.  He was furious and went to the Applicant’s home in 2016 and threatened to kill the Applicant.  His parents did not inform him about Dedigama’s threat until August 2023 as they did not want to burden him with that threat.  He subsequently learned that Dedigama is a powerful and influential person with strong connection to the underworld.  He also feared he would be arrested and prosecuted by the Sri Lankan authorities for passport fraud.

12.  The Applicant claimed that his enemies are powerful, influential and supported by the police.  This is particularly so for Nalin who had political background.  He claimed the police would not provide him with sufficient protection and would arrest him as soon as he arrives Sri Lanka.  He also claimed his enemies could locate his whereabouts in Sri Lanka.  Hence, internal relocation is not feasible.  

13.  The Applicant produced the following supporting documentary exhibits: a newspaper cutting reporting the death of a person named Ruwanjith Vijitha (“Ruwanjith”), a copy of his Sri Lankan passport, a copy of a Sri Lankan passport in respect of Dedigama, a letter from a Buddhist Institute explaining the Applicant’s situation, a letter from St Eugene de Mazenod Church and two letters from his parents.

The Director’s decision in the Notice and the Court’s observation

14.  The immigration officer considered the Applicant’s fear from Nalin and his associates had been fully considered by the Board and rejected. He considered the new evidence in the form of letters from his parents about Nalin’s continued threats are just hearsay of what they were told by some people in town.  Such hearsay could not be tested and the immigration officer did not give it much weight. 

15.  As for the evidence about Ruwanjith’s murder, the newspaper cutting only reported the death without any further details about the killer and his motive for killing.  The immigration officer obviously accepted the murder had occurred.  He assumed, without making any actual finding that Ruwanjith’s murder was connected with Nalin and that his associates are still looking for the Applicant.  On that basis, he found that the source of fear is the same, ie Nalin and his gang.  As the continuous fear of harm from Nalin and his associates had already been duly considered in his previous claim as not substantiated, he further found the Applicant’s claimed continuous fear of harm from Nalin and his associates remains unchanged and his repeated claim that they still hold significant grudge against him does not constitute a significant change of circumstances. 

16.  While the immigration officer’s finding that the source of fear is the same could not be criticized, it might appear that his reason for adopting the Board’s finding under circumstances when Ruwanjith’s murder has not yet occurred is convoluted and possibly is an error of law, procedurally unfair or irrational.  But it is clear that in reaching the above conclusion, the immigration officer had taken into account the heightened risk arising from Ruwanjith’s murder, that the murder was connected with Nalin and that Nalin and his associates are still looking for the Applicant.  It was with those assumptions and the Board’s earlier finding that the Applicant’s fear before Ruwanjith’s murder was not substantiated that the officer came to the conclusion that the Applicant’s claimed continuous fear of harm from Nalin after Ruwanjith’s murder remains unchanged and does not constitute a significant change of circumstances.  This is a finding which this Court will not interfere, save for errors of law, procedural unfairness and irrationality. 

17.  If there should be any criticism of the officer’s finding, it should be his assumption of a connection between the murder and Nalin and that Nalin and his gang were still looking for the Applicant irrational in the light of the Board’s finding in the previous claim.  The Board had already found since Nalin had settled with the Applicant for compensation for his head injury it was unlikely that he would have still tried to kidnap and kill the Applicant, hold an adverse interest in him and continues to locate him after fourteen years. It would be all the more unlikely today twenty years later.  On top of the above unlikelihood, if it is unlikely that Nalin would have an adverse interest in the Applicant who was his assailant, it is very unlikely that he would have any adverse interest on the Applicant’s accessory and all the more unlikely on the accessory’s brother who had absolutely nothing to do with the attack.  Anyway, if the officer erred, it was in favour of the Applicant and the error has no adverse effect on his finding.

18.  As for his renewed assertion about lack of state protection, this issue had been extensively considered and rejected by another immigration officer in the previous claim for good reasons as given by that officer: see paragraphs 22 to 24 of the Notice.  Other than making bare assertions or speculations of Nalin’s and Dedigama’s influence over the police and his fear that he will be charged and prosecuted for using Dedigama’s identity, the Applicant has adduced no evidence to dispute the findings on this issue.  As pointed out by the officer, the Applicant’s fear of being subjected to due process is not a right or interest subject to non-refoulement protection.  The USM protects victims of injustice and not fugitives from justice.  

19.  As for his renewed claim that internal relocation is infeasible, the issue had also been considered by the other immigration officer in the previous claim and rejected for good reasons:  see paragraphs 25 to 29 of the Notice. The Applicant’s claim that Sri Lanka is a small country and his enemies could locate him through their extensive network is not substantiated by evidence or by the COI.

20.  In conclusion, the officer found the Applicant had failed to prove (i) that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and (ii) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.  Hence, the officer refused the Applicant’s Request.

Grounds for judicial review

21.  The Applicant did not advance any grounds of application in his Form 86 or supporting affirmation.  After the legal principles applicable to judicial review and non‑refoulement protection had been explained to him, the Applicant complained that the immigration officer did not look at his problem properly.  He repeated his fear of harm from Nalin and Dedigama and said they have now joined force against him.  These are direct challenges of the Board’s and immigration officers’ finding of fact which is not permissible in an application for judicial review, save for errors of law, procedural unfairness and irrationality.

22.  He produced a written plea for protection for his family dated 23 June 2023 in which he repeated his feared harm and reasons for coming to Hong Kong and for protection for his family.  That he has established a family in Hong Kong is not a relevant factor for consideration of his non-refoulement claim.  The other matters contained in the plea had been finally determined by the Board’s Decision as not substantiated.

23.  He also produced what appeared to be a newspaper cutting from an unidentified source showing that between 1 January and 28 August 2025 there were 89 shootings in Sri Lanka resulting in 48 deaths and 50 injuries as evidence of the situation in Sri Lanka.  Other than providing these figures, there is absolutely no context in the document.  Nothing useful could be derived from the document.  This document had not been produced before the immigration officer and never formed part of the Director’s decision.  It could not be used to criticised the decision in the Notice. 

24.  When the Court attempted to explore with the Applicant the impropriety of the immigration officer’s/officers’ decision, he objected to the immigration officers’ finding on feasibility of internal relocation.  He said Sri Lanka is a very small country and his enemies could easily locate him.  He repeated his fear that his whereabouts would be revealed to his enemies when he applies for a certificate from the relevant authority to relocate.  This issue had been ably disposed of by the other immigration officer under the previous claim.  The ‘certificate’ he referred to is the ‘letter gramasevaka’ mentioned by that officer in paragraph 26 of the Notice in the previous claim.  The officer found according to the COI that there is an alternative resolution to the Applicant’s worry by securing a letter from a justice of peace which would serve the same purpose as the letter gramasevaka.  The Applicant has not adduced any COI to dispute the officer’s specific finding about availability of the alternative resolution or availability of internal relocation generally.  Sri Lanka is not a small country. According to the World Factbook published by the US Central Intelligence Agency, the country is spread across about 65,610 square kilometres with a population of 22.235 million as at July 2016.  The Applicant has adduced no evidence to support his claim of Nalin’s and Dedigama’s connection with the underworld and their ability to locate him.  His fear, even if genuine, is his own speculation unsupported by evidence.  

25.  In the absence of specific grounds of application, the Court in an application for judicial review 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.

Overall scrutiny

26.  Having considered the Request, the Board’s Decision and the immigration officer’s finding in the previous claim and having rigorously examined the Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence.  The immigration officer observed a very high standard of fairness.  He advised the Applicant on the law and procedure in prosecuting his Request and referred his claim to the Duty Lawyer Service which subsequently acted for him.  On any objective view, there is no new evidence or information which suggest that there has been a significant change in circumstance since his previous claim was finally determined and that the change, if any, when taken together with the material previously submitted in support of his previous claim, would give the subsequent claim a realistic prospect of success.  These are finding of facts which are exclusively within the province of the Director to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Except for the blemish in the immigration officer’s finding as mentioned in paragraphs 16 and 17, this Court could detect no error of law in the Notice.  The officer’s error is in favour of the Applicant and has no adverse effect to the decision in the Notice.  The Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

27.  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

[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001838_2025_files/the_Board's_Decision.pdf