MAHAMALEGE SAMANTHA PRASAD PERERA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 208/2025, [2025] HKCA 906

On Appeal From [2025] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2025

(ON APPEAL FROM HCAL NO. 2430 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)  The appeal

1.  This is an appeal by the applicant against the Judgment of Deputy High Court Judge To of 8 April 2025 in which he refused to grant leave to apply for judicial review.

2)  Background

2.  The applicant is a national of Sri Lanka.  He arrived in Hong Kong in May 2005 as a visitor until June 2005 but he overstayed. He was arrested in August 2012. He lodged a torture claim in December 2012. The applicant’s torture claim was refused by the Immigration Department on 19 March 2013. In June 2013, the applicant lodged a non-refoulement claim, which was eventually assessed by the Immigration Department on all applicable grounds other than torture risk. The applicant’s non-refoulement claim was refused on 7 September 2018, whereby the applicant filed a notice of appeal to the Board. The Board determined the applicant’s notice of appeal based on all applicable grounds including torture risk, persecution risk, BOR 2 and 3[1]. 

3.  The basis of the applicant’s claim is that he would be harmed or killed by his political opponents from the political party formerly known as the People’s Alliance (“PA”)  and now known as the United People’s Freedom Alliance (“UPFA”), because of his political affiliation with the United National Party (“UNP”)[2].

4.  The background facts have been summarised in the Judgment at [4] to [6].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s torture claim on 19 March 2013[3] (‘the Director’s 1^st Decision’).

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 7 September 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk as well as other statutory and convention rights against persecution, except for torture[4] (‘the Director’s 2^nd Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s 1^st Decision, and appealed/petitioned against the Director’s 2^nd Decision, to the Torture Claims Appeal Board[5] (‘the Board’).  An oral hearing was scheduled to be held on 29 April 2019 but he failed to appear. He subsequently failed to provide to the Board any satisfactory explanation for his absence, so the Board proceeded to determine his appeal/petition in his absence[6].  By a decision dated 19 July 2019, the Board dismissed the appeal/petition (‘the Board’s Decision’)[7].

8.  The Board’s finding is summarised in the Judgment at [8] to [13].

5)  Decision of the Judge

9.  The applicant filed his Form 86 and supporting affirmation on 22 August 2019[8].  The applicant complained that the Board’s decision was made without an oral hearing, and that on the day of the Board hearing, the applicant was admitted into hospital, and his request for re-scheduling was rejected[9].

10.  The Judge held that the evidence did not support the applicant’s claim that he was hospitalised on the day of the Board hearing[10]. There was nothing in the discharge slip dated five days prior to the Board hearing to suggest that he could not have attended the Board hearing[11].  The applicant chose not to respond to the Board’s second request to provide a reasonable explanation for his failure to attend the scheduled Board hearing[12]. In any event, as a matter of law, an applicant does not have an absolute right to an oral hearing[13].

11.  The Judge held that the applicant’s claim that he needed more time to produce further evidence despite having had twenty years of time since he fled to Hong Kong was unnecessary, and in any event, the evidence would not have improved his case. The Judge held that the applicant’s claims that his brother died as a result of persecution, and that his uncle’s son had been killed by the police, could not be relied upon as these had never been mentioned before the Board. The Judge noted that the claim of the applicant’s father being killed had been considered and rejected by the Board as being incredible and in any event irrelevant[14].

6)  Grounds of appeal

12.  The applicant in the notice of appeal stated the following :

‘ I am writing this grounds regarding my judicial review refused. But some incident happen during ongoing in court. I need to explain with documents proof in my oral hearing. At this moment if I go my life become uncertain.’

12.  At the hearing of the appeal, the applicant added that he has been treated for a heart condition for two years and that he has been asked to undergo an operation, but he is unable to pay the fees. He goes to the clinic every four months. He also has asthma. He has a six-year old daughter.

7)  Our view

13.  We are of the view that the applicant’s appeal is without merit.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against the refusal to grant leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments or matters raised by the applicant shows the Judge made any error of law.

15.  In his written submissions, the applicant complained that there were still problems in his home country and it would be dangerous for him to return as the ruling party is different from the one he supports[15]. He stated that his enemies tried to kill him, and the police took no action to protect him[16]. The applicant repeated that he needed more time to collect further documents to submit[17]. In his written and oral submissions, the applicant said he now has a daughter[18]. He also elaborated on his medical conditions in his oral submissions. His submissions about the situation in his home country are factual matters that are within the province of the Board and have already been considered by the Board. The Judge had already addressed the claim to need more time to submit further documents. As for the applicant’s medical conditions and his daughter, these are not grounds for seeking non-refoulement.

16.  We see no basis to disturb the Judgment.  Accordingly, the appeal is dismissed.