KUMARASINGHE HETTI ARACHCHIGE AJITH V.K. v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL2767/2019

[2025] HKCFI 4240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2767 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 by making the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) the proposed respondent, its decision dated 13 September 2019 the decision in respect of which relief is sought and substituting the Director of Immigration for the Board as the proposed interested party; 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 the decision of the petition teams dated 13 September 2019.  He named the petition teams as the proposed respondent and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as the interested party. In his supporting affidavit, he annexed a copy of the Board’s decision dated 13 September 2019 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.  It is therefore obvious that the Applicant’s intention is to seek judicial review of the Decision of the Board. Accordingly, on its own motion, the Court amended his Form 86 by naming the Board and the Director as the proposed respondent and interested party respectively in place of the petition team and identifying the Decision as the decision in respect of which relief is sought.

2.  The Applicant is a Sri Lankan national, now aged 51.  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.  In gist, he claims, if returned to Sri Lanka, he will be arrested by the Sri Lankan police and prosecuted for murder and by gangsters linked with the murder victim for revenge.

3.  In January 2005, the Applicant and other members of the Janatha Vimukjhi Peramuna (the “JVP”) political party burned down the house of one of their party’s adversaries and shot the victim as the victim escaped from the burning house.  The Applicant was arrested by the police for suspected murder, but was released.  He suffered no ill-treatment by the police during his detention.  He claimed he was targeted by the gangsters in revenge for the victim’s death.  He left his home and moved from place to place to avoid the gangsters.  One day in mid-2007 he was attacked by two gangsters and fell unconscious.  Upon regaining consciousness, he found himself in a hospital with injury on his right leg.  Two and half years later, he came to Hong Kong at the beginning of 2010 where his sister-in-law.  With the help of his brother he found employment as a foreign domestic helper.  After his contract of employment was terminated, he surrendered himself to the Immigration Department and made a non-refoulement claim.

4.  The Board found the injury suffered by the Applicant during the only attack by the gangsters was not severe.  No surgery was administered and he was able to flee the hospital on his own before full recovery.  The ill-treatment was not inflicted at the instigation, with the consent or acquiescence of any public official.  The Board found the ill-treatment fell outside the definition of ‘torture’ under section 37(U) of the Immigration Ordinance.  The Applicant confirmed at the hearing that no one had tried to harm his wife in Sri Lanka.  His claim that he had been told by his sister that his house in Sri Lanka was burnt down was rejected by the Board as a late concoction.  The Board was not satisfied that the Applicant would face any real risk of ill-treatment, if returned to Sri Lanka.  It found the ill-treatment and risk of harm from the gangsters and risk of prosecution by the police did not arise out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Refugees Convention”).  On the basis of authoritative and credible country of origin information, the Board found state protection and internal relocation would be available on the Applicant’s return to Sri Lanka.  Applying the law applicable to non-refoulement protection to the above finding, 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.  Hence, it dismissed his appeal.

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 said he was not satisfied with the Decision because despite he had told the truth, the immigration officer and the Board did not believe him.  In effect, he is challenging the finding of fact by the Board which is not permissible 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 assessed the Applicant’s claim on the basis of the case as he asserted, except his late assertion that his house had been burnt down by the gangsters while he was away.  It analysed those primary evidence carefully and tested it against common sense and inherent probability.  From those primary evidence, it made further finding of fact as stated in paragraph 4 above.  It gave reasons for its finding.  Then, 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 of harm.  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/HCAL002767_2019_files/the_Board's_Decision.pdf