Hettiarachchige Thisera Dinesh Pushpakumara Alias Hettiarachchige Thisera D Pushpakumara Alias Hettiarachchige Denesh Pushpakumara Alias Hettiarachchige Thisera Dinesh P v. Torture Claims Appeal Board
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HCAL 1868/2019 [2025] HKCFI 2111 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1868 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review be refused. Observations for the Applicant: 1.The Applicant is a 45-year-old national of Sri Lanka who last arrived in Hong Kong on 9 April 2006 as a visitor with permission to remain as such extended up to 25 June 2006 when he did not depart and instead overstayed, and was arrested by police on almost a year later on 7 May 2007. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by certain local supporters of the political party People’s Alliance Party (“PA”) as he supported their rival United National Party (“UNP”), and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Maradana, Colombo, Sri Lanka. After leaving school he ran his business selling bags and also assisted in his father’s timber business in Jaela, and supported UNP regularly attended their local meetings and activities without holding any official post in the party. 3.However, since 2002 whenever the Applicant together with his fellow UNP supporters were putting up banners and posters on the streets, they would be met with violent confrontations by the PA supporters with stones and wooden sticks which often deteriorated into mass brawls with injuries and sometimes even fatalities on both sides, and in between 2003 and 2004, two of the Applicant’s good friends and UNP supporters had been killed during those violent conflicts. 4.One night in 2004 while the Applicant and another friend and fellow UNP supporter were putting up their party’s posters in the street, they were abducted by a group of PA supporters at gun point and were taken to some remote area where they were beaten and threatened to leave UNP, and were only released on the next day with their body covered with cuts and bruises. 5.Still the Applicant maintained his loyalty and support for UNP, and about one month later in or about February 2004 while he and his friend were on the street, a vehicle drove by at great speed during which several gun shots were fired from the vehicle at them that his friend was shot in the leg but the Applicant managed to escape unharmed. 6.After the shooting incident the Applicant became fearful for his life and fled to Ratnapura District to take shelter in his aunt’s place, and on 22 March 2006 he departed Sri Lanka for Hong Kong and China, and on 9 April 2006 he returned to Hong Kong where he overstayed, and upon his subsequent arrest by the police he then raised his torture claim to the Immigration Department, and after it was rejected, he then sough non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.While released on recognizance pending the determination of his claim, the Applicant was arrested in 2012 for theft for which he was subsequently convicted and sentenced to prison for 2 months, and in 2013 he was again arrested for possession of apparatus fit for dangerous drugs and was given another 3 months imprisonment. 8.By a Notice of Decision dated 24 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”). 9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local PA supporters upon his return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any political reason to specifically target him given that he was just an ordinary UNP supporter without holding any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 22 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kandy where it would be difficult if not impossible for anyone to locate him. 10.On 5 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision. 11.In its decision the Board accepted the Applicant’s claim of having violent conflicts with those local PA supporters during the years as a UNP supporter but found such conflicts and confrontations common between supporters of rival political parties in Sri Lanka, that there was no evidence or political reasons for UNP supporters to specifically target the Applicant for harm given that he was just an ordinary UNP supporter without any official post in the party other than just putting up banners and posters in the streets that it is not accepted that such conflicts would cause him to leave his country to come to Hong Kong to seek protection, and that in any event it is not accepted that there would still be any adverse interest in him after all these years since he left the country that it concluded that he had failed to establish that he will face any real risk of harm from anyone upon his return to Sri Lanka that his claim for non-refoulement protection failed on all applicable grounds. 12.On 4 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he cannot agree with the decision as he still has problem in Sri Lanka where it is not safe for him but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge. 13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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. 14.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 67 – 118 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 15.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 16.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim. 17.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application. Dated the 27th day of May 2025
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
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Cases cited in this judgment