Re Kachcha Kaduge Victor Fernando

CACV 89/2025, [2025] HKCA 693

On appeal from [2025] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 89 OF 2025

(ON APPEAL FROM HCAL NO. 2409 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Levy (“the Judge”) given on 14 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 2 August 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decisions dated 22 November 2013 and 23 July 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

The applicant’s claim

2.The applicant is a national of Sri Lanka, aged 63.  He entered Hong Kong illegally on 24 January 2007 and was arrested on 17 September 2007.  On 25 September 2007, he raised a torture claim which was refused by the Director on 22 November 2013.  On 6 December 2013, he appealed to the Board, which eventually dismissed his appeal on 2 August 2019.

3.The applicant’s claim was on the basis that, if refouled, he would be harmed or killed by members of the People’s Alliance (“PA”) because of his political affiliation with the opposition party United National Party (“UNP”).  The details of his claim were set out at [20] of the Board’s decision.

4.According to the applicant, he was targeted by the PA due to his political involvement with UNP. He had been a member of UNP since 1986, and had worked for several politicians of UNP by arranging meetings and rallying voters’ support in the parliamentary campaigns since 2000. The applicant claimed that he was subjected to assaults and threats in a series of incidents in July and August 2006, including an incident in which he was struck unconscious by two motorcyclists whilst walking home in Haldanduwana, and on another occasion where he was injured by a piece of broken glass as intruders smashed through the windows of his home at night.  The applicant did not report these incidents to the police as he believed it would aggravate the matter.  Fearing for his safety, the applicant left Sri Lanka with the help of an agent and entered Hong Kong on 24 January 2007 illegally by boat via Guangzhou and Shenzhen. He learned from his family that there was still harassment by his enemies. 

The Director’s and the Board’s decision

5.By a first decision dated 22 November 2013, the Director rejected the applicant’s torture claim[2].  His appeal to the Board was adjourned pending the Director’s assessment on all applicable grounds (apart from the torture risk ground) under the Unified Screening Mechanism.  By a second decision dated 23 July 2018, the Director rejected his claim based on BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.

6.The applicant appealed to the Board.  The hearing took place on 16 May 2019 and 11 June 2019, during which the applicant was represented by the Duty Lawyer and had testified at the hearing. By a decision given on 2 August 2019, the Board dismissed his appeal. 

7.The Board’s assessment of the appeal was based on all applicable grounds including torture risk.  In gist, the Board found that there was no intention from the PA to cause serious harm to the applicant. His belief that the perpetrators were from the PA was based on speculation. There was no evidence that the perpetrators were state officials or were acting in an official capacity.  The Board assessed that it is unlikely that the applicant would be pursued by the PA 12 years after his departure, as the UNP and the Sri Lanka Freedom Party (SLFP) (which was formed by PA) are now coalition partners since the Presidential and National Parliament elections in 2015. The Board further found, on the basis of the country of origin information (COI) that there are ongoing measures to improve the integrity of the Sri Lankan police and alternative avenues for the applicant to seek justice and protection. The Board assessed that internal relocation to Colombo is a viable option for the applicant. For these reasons, the Board concluded that the applicant had failed to establish the requirements for non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.By a Form 86 dated 20 August 2019, the applicant applied for leave to judicially review the Board’s decision. The applicant sought an order to quash the Board’s decision and an order prohibiting the Director to repatriate the applicant. In his supporting affirmation, he put forward three grounds of challenge:   

(1)  The Board’s decision was irrational in that it had failed to place weight on relevant information and had wrongly rejected the applicant’s evidence as speculative and unreliable.

(2)  There was procedural impropriety in that the Board had failed to make enquiry into the confrontation among different political parties on a social and local level; and

(3)  The Board was biased in its evaluation of the COI.

9.The Judge held an oral hearing on 7 January 2025 which was attended by the applicant. By a Call-1 Form dated 14 February 2025, the Judge refused to give leave for judicial review.  She gave her reasons at [14] to [18] as follows:

“14. At the hearing, the applicant informed this court that his enemies are now supporters of a political party called “Janatha Vimukthi Peramuna” (“JVP”), which is now a party in power.  His former enemies have now joined the JVP.  Since he stated that the affirmation was prepared by his lawyer, I asked the applicant if he wanted to be reminded of the grounds stated in his affirmation so that he could elaborate on them at the hearing.  He said there was no need.  Notwithstanding, this court reminded him of the first ground on “irrationality”, and asked him if he wanted to elaborate more.  However, all he said was that he only needed to stay in Hong Kong for another 2 years as he is currently waiting for a family sponsorship from his children in Sweden.  Apart from stating that his health was not good and was waiting to go to Sweden, he said that he did not want to be reminded of the grounds nor did he have anything further to submit. He even stated that he was already preparing to file any appeal as soon as his Leave Application is rejected.

15. The applicant’s stated three grounds are bare assertions.  It is clear that at the two hearings before the Board, the Board had provided sufficient time and opportunity to the applicant to clarify matters.  Furthermore, the applicant was represented by counsel and had adopted all the documents contained in the hearing bundle.  The applicant’s contentions are without any supporting evidence.

16. The Board’s Decision was arrived at after having examined the applicant’s evidence in great detail.  It found that the applicant’s account of events did not amount to any threat or risk and that even if there were any threats, the applicant would have the option of state protection and internal relocation.  These are findings of fact, which the court in a judicial review will not interfere with.

17. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

18. For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

This appeal

10.On 24 February 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision. He stated in his Notice of Appeal that he was not satisfied with the Judge’s decision and he still faces problems in his country.  He said that he will explain his problems with supporting documents at the hearing.  

11.In his written submissions lodged on 3 June 2025, the applicant stated that the supporting documents which he had submitted to the Board have been disregarded and that he still has problems with his enemies in Sri Lanka.  He stated that the police would not take any action unless they are bribed. 

12.At the hearing of the appeal, the applicant reiterated that his life will be in danger if refouled to Sri Lanka as he and his family are still being pursued by his enemies and that there is no state protection.  He has also handed up a letter dated 21 June 2025 (“the Letter”) which was allegedly written by a member of the Parliament of Sri Lanka, in which it is stated that the applicant had faced significant hardships because of “destruction of his residence and persistent threats to his personal safety and well-being”, which had led to the departure of the applicant from Sri Lanka. 

Our reasons for decision

13.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.Further, it is well established that assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

15.In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant are not arguable.  Our reasons are as follows:

(1)  The applicant has failed to identify any error in the Judge’s decision. At the hearing before the Judge, the applicant was given the opportunity to elaborate his proposed grounds of review but had chosen not to do so. The Judge, having considered the applicant’s submissions and the Board’s decision, concluded that his grounds of review were bare assertions without any supporting evidence.

(2)  The complaint in the written submissions that the Board has disregarded his problems and the supporting documents is vague and in any event, factually incorrect.  The applicant has not identified the facts or evidence that the Board was said to have failed to consider, and/or how that would have impact on the correctness of its conclusion on each of the applicable grounds.  On the contrary, the Board gave detailed consideration and analysis of the evidence of the applicant, including his account of the incidents as well as the COI materials, before reaching its conclusion that the applicant has failed to make out his case on non-refoulement protection as his evidence was not reliable.

(3)  The applicant’s assertion that the police is corrupt in Sri Lanka and the absence of state protection cannot stand in light of the Board’s assessment of the COI on the on-going measures to improve the conduct of the police force. As aforesaid, evaluation of risks including the assessment of the COI is a matter for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. 

16.As far as the Letter is concerned, the applicant has not applied for leave to adduce new evidence in this appeal.  Therefore, he is not entitled to rely on any new evidence.  In any event, even if the court were to consider the Letter on a de bene esse basis, it would not assist the applicant in refuting the Board’s findings against him. It should also be pointed out that the allegation of “destruction of his residence” in the Letter has never been part of the applicant’s case before the Board.

17.Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

18.Accordingly, this appeal is dismissed.

[1] [2025] HKCFI 681

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.