Case Document

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HCAL 44/2020

[2025] HKCFI 2903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 44 OF 2020

BETWEEN
	Hiddadura Dewayalage Sugandika Amarasinghe	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Hon Fung J :

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Sri Lanka who arrived in Hong Kong on 1 November 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 November 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 December 2016, she did not depart and instead overstayed, and nearly 9 months later on 12 September 2017 she surrendered to the Immigration Department for investigation and raised a non-refoulement claim for protection on the basis that if she returned to Sri Lanka she would be harmed or killed by a man named Wasantha Herath (“Wasantha”) causing his girlfriend to break up with him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kelemulla Village, North Western, Sri Lanka. After leaving school, she got married and gave birth to a son and lived with her husband in Kurunegala, Sri Lanka.

3.In February 2016, the Applicant borrowed a sum of money from a local parliament member but she lost the money after lending it to a friend. She then started to work as a domestic helper at her creditor’s residence for 3 months as repayment of her debt, during which her creditor’s body guard, Wasantha made 3 unsuccessful attempts to rape the Applicant. The Applicant later became acquainted with Wasantha’s girlfriend and informed her about his such attempts, and Wasantha’s girlfriend believed the Applicant and broke up with him.

4.In August 2016, Wasantha came to the Applicant’s home and verbally threatened to kill her for ruining his relationship, but did not cause any physical harm. The Applicant reported Wasamtha’s attempts to rape her and his death threat to the police but they did not take any further action.

5.As she was still fearful for her safety, she first moved to her mother’s place in Maduragoda and then her grandmother’s places in the same area, and on 31 October 2016 she departed Sri Lanka for Hong Kong to work as a foreign domestic helper and when her employment was prematurely terminated in December 2016, the Applicant was afraid to return to Sri Lanka and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 August 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 19 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there would be any real risk of her being harmed or killed by Wasantha upon her return to Sri Lanka due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of them to seriously harm or kill her other than to frighten her, that in any event it was a private dispute between her and Wasantha only without 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 her home district in large cities such as Colombo where it would be difficult if not impossible for anyone to locate her.

8.On 2 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 20 June 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 November 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of her ordeals by Wasantha but found that even in her own evidence Wasantha has only made one verbal threat to her and has never caused any physical harm to her, and that her claim for non-refoulement protection failed on all applicable grounds.

10.On 6 January 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision and repeated her claims as before but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her 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 her intended challenge.

11.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.

12.In the Applicant’s case, the fact is that it has 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 her to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently on 27 May 2025 in writing requested to withdraw her application as her issues has been resolved and it is now safe for her to return to her home country.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success or merits in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of July 2025

(Kitty Lam)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3^rd July 2025 Hiddadura Dewayalage Sugandika Amarasinghe Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3^rd July 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13681/18/10/23/S309 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3831/18 (formerly RBCZ 10391/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)