Wikumsiri Kosgallana Durage v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3192/2019

[2025] HKCFI 3308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3192 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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 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 20 June 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 55, is a national of India. He is an illegal immigrant. He had a checkered history of coming to Hong Kong illegally on passports of another person and was repatriated and he came back again. In any event, on 10 February 1998, he came as a visitor and was allowed to stay as such until 14 February 1998. He overstayed and was arrested by police. He lodged a non-refoulement claim to the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the gangsters connected with the United People’s Freedom Alliance (“UPFA”), a political party of Sri Lanka.

5.According to the applicant, his brother was a police constable and he was a plain-clothes investigator in Western Province. He was involved in a fight with some gangsters, who were connected with the Ministers of the UPFA. He resigned because of this involvement. He alleged that a motorcyclist shot at him and he was knocked unconscious in a hand grenade blast, which he believed were done by the gangsters. The gangsters had also gone to his family house to enquire about his whereabouts and threatened to kill him. The Ministers of the UPFA are still working for the government. He therefore came to Hong Kong for safety.

6.Details of his story are set out at paragraphs 28 and 29 of the Board’s Decision.

The Director’s Decision

7.As the Director had rejected the applicant’s torture claim before, the Director considered the applicant’s claim in relation to the following risks:

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”).

8.By way of Notice of Decision dated 25 October 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, the Director further found that state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks, if he returns to Sri Lanka.

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. The Board fixed the hearing on 20 May 2019 to conduct an oral hearing for his appeal. He was absent. The Board gave him notice to submit written explanation for his absence. On 29 May 2019, the applicant gave reasons for failing to attend the hearing in a letter, in which he said:

(1)  He regretted for failing to attend.

(2)  He did not attend the hearing because he did not receive the Board’s letter, nor did anyone give him a call for the hearing.

(3)  His telephone was ‘out of order’.

(4)  He requested another hearing date.

10.The Board found those reasons not persuasive and determined to decide his appeal on the papers.

11.Having considered the evidence and bearing in mind the principles for assessment of the evidence, [4.2] the Board made the following findings, and based upon which, dismissed the applicant’s appeal:

(1)  The applicant is not facing a real risk of Proscribed Harm under any of the grounds due to his past work as a police officer and/or political instability in Sri Lanka if he is refouled to Sri Lanka. [46]

(2)  The applicant failed to establish that he has a well-founded fear of persecution. [49]

(3)  The applicant failed to establish that there is a genuine and substantial risk he will be subjected to BOR 3 risk. [52]

(4)  The applicant failed to establish that there is a genuine and substantial risk of him being deprived of his right to life under BOR 2. [54] See hyperlink to Board’s Decision
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003192_2019_files/the_Board's_Decision.pdf.

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

12.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

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 applicant has raised no valid ground to challenge the Board’s findings under paragraph 11.

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.

Dated the 21^st day of August 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