Randunu Pathirannahelage Sumith Premakumara v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2324/2020

[2025] HKCFI 4834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2324 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The Director of Immigration (“the Director” had made 2 decisions for the applicant’s non-refoulement claim, namely:

(1)  Notice of Decision dated 18 June 2015 on the Torture risk, BOR 3 risk and Persecution risk (the Director’s 1^st Decision”); and

(2)  Notice of Further Decision dated 28 April 2017 on BOR 2 risk (“the Director’s 2^nd Decision”)

2.The applicant appealed the Director’s Decisions to the Board. The Board had issued 2 Decisions:

(1)  Decision dated 9 March 2017, dismissing his appeal against the Director’s 1^st Decision (“the Board’s 1^st Decision”).

(2)  Decision dated 29 October 2020, dismissing his appeal against the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

3.The applicant applies for leave to apply for judicial review of the Board’s 2^nd Decision.

4.As the facts of the Board’s 2^nd Decision are the same as those in the Board’s 1^st Decision. I shall take into consideration of the facts of the Board’s 1^st Decision in the assessment of the Board’s 2^nd Decision.

5.The applicant did not ask for a hearing.

The applicant

6.The applicant is a national of Sri Lanka. He is an illegal immigrant. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Athula and his supporters (“his enemies”) because Athula blamed him for causing the death of brother and he wanted to take revenge on him.

7.Details of the applicant’s story can be found in the Board’s 1^st Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002324_2020_files/1st_Board's_Decision.pdf. See also the Board’s 2^nd Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002324_2020_files/2nd_Board's_Decision.pdf.

The Director’s Decisions

8.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).the

9.By the Director’s 1^st and 2^nd Decisions, the Director refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decisions

10.The applicant appealed the Director’s 1^st Decision to the Board. On 4 July 2016, the Board conducted an oral hearing. However, he was absent despite several attempts made to locate him. The Immigration Department informed the Board that he had absconded. The Board proceeded to consider his appeal in his absence in the evidence before it.

11.Having considered the evidence and materials, the Board found the facts below.

(1)  The applicant’s fear of ill-treatment is unlikely to materialize. [39]

(2)  State protection will be available to him if he returns to Sri Lanka. [42]

(3)  Internal relocation is viable, one option being Hasalaka. [43]-[47]

12.For the reasons above, the Board, by the Board’s 1^st Decision, dismissed the applicant’s appeal and affirmed the Director’s 1^st Decision.

13.The applicant did not apply for leave for judicial review of the Board’s 1^st Decision.

14.The applicant appealed the Director’s 2^nd Decision to the Board. The Board conducted oral hearing on 28 May 2020, 12 June 2020 and 3 July 2020. The applicant had given oral evidence and answered the Board’s questions. Having considered the evidence, the Board made the findings below.

(1)  The applicant’s evidence was conflicting and unbelievable. [53]

(2)  Even if the information were accepted, the Board would still dismiss his claim on BOR 2 risk for those reasons set out in paragraphs 55-68.

15.For the reasons above, the Board, by the Board’s 2^nd Decision, dismissed the applicant’s appeal against the Director’s 2^nd Decision.

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

16.The applicant has filed Form 86 dated 26 November 2020 for leave to apply for judicial review of the Board’s 2^nd Decision.

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

DISCUSSION

18.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).

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

20.The applicant has not raised any valid ground to challenge the Board’s findings.

21.In any event, since the applicant failed in his claim on BOR 3 risk, he has no arguable case for his claim on BOR 2 risk as the Court of Appeal held in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

22.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

23.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

Dated the 7^th day of November 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