Mille Patabandige Lakshman Leel Jayasena v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3062/2019

[2025] HKCFI 2425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3062 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 19 May 2025. I shall deal with his application on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 53, is a national of Sri Lanka. According to the record, the applicant last arrived in Hong Kong on 3 March 2005. He overstayed since 3 April 2005 and was arrested by police on 25 August 2005.

5.The applicant lodged his torture claim on 2 November 2005, which was refused by the Director on 28 February 2013. An appeal was lodged which was rejected by the Board on 12 April 2013. In due course, the applicant lodged his non-refoulement claim.

6.The applicant’s claim was based on his fear of being harmed or killed by members of the People’s Alliance (PA) / Sri Lankan Freedom Party (SLFP) / United People’s Freedom Alliance (UPFA) because of the applicant’s involvement in supporting the Unit National Party (UNP) in the General Election in 2004.

7.According to the applicant, he was registered as a member of UNP. On 4 April 2004, more than 10 members of the PA went to the applicant’s house where he was attacked. He sustained injuries to his forehead and a broken tooth. In his supplementary information, the applicant noted that the attack on 4 April 2004 was with the UPFA and SLFP. He was stabbed with a knife on his chest. He passed out and came to in hospital. He complained to police but with no effect. He was informed that his enemies were trying to track him down and therefore he fled Sri Lanka for Hong Kong. Details of his claim are set out at paragraphs 7-13 of the Board’s Decision.

The Director’s Decision

8.As the applicant had raised his torture claim and failed, the Director considered the applicant’s claims in relation to the following risks other than a risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture risk”):

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By way of the Director’s Notice of Decision dated 22 February 2019 (“the Director’s Decision”), the Director assessed the applicant’s claim on all applicable grounds except Torture risk and dismissed his claim. In summary, the Director found that: there was no substantial ground for believing that the claimed risk of harm was real and foreseeable, the low intensity and frequency of past-ill treatment is indicative of a low future risk of harm [24-25]; reasonable state protection was available [28-30]; and internal relocation alternatives were available and reasonable [31-33].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 29 July 2019, the Board conducted an oral hearing for his appeal.

11.Having considered the evidence, the Board found that the applicant’s vague testimony could be explained by both his mental health and the passage of time. But it did not cause any concerns as to the applicant’s credibility [30]. However, the Board found that the risk to the applicant in his local area from non-state actors was far-fetched and fell below that which could be categorised as any real risk [44]. In any event, the Board found that internal relocation was not unreasonable or unduly harsh to the applicant and he would have access to relevant mental health services [54-62]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 17 October 2019 for leave to apply for judicial review of the Board’s Decision. He submitted that he cannot go back to his country as his life is in danger, but he did not put forth any specific ground to challenge the Board’s Decision.

13.In his affirmation in support of his application, the applicant exhibited the Board’s Decision and a psychiatric report dated 30 January 2019 and deposed that he is suffering from mental stress and taking medicine from 2012 and requests for more time to stay in Hong Kong.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The reasons in paragraph 13 are not valid ground to challenge the Board’s Decision.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.