S and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 155/2024, [2025] HKCA 521

On Appeal From [2024] HKCFI 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2024

(ON APPEAL FROM HCAL NO 1902 OF 2020)

________________________

_____________________

_____________________

JUDGMENT

_____________________

Hon Chow JA (giving the Judgment of the Court):

1.This is the 1^st and 2^nd Applicants’ appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 12 April 2024 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 24 June 2020, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 31 May 2017.

BACKGROUND

2.The 1^st and 2^nd Applicants, mother and daughter, are nationals of Sri Lanka.  The 2^nd Applicant was born on 31 August 2004.  At the time of the hearing before the Board on 23 July 2019 and at the time when the Board gave its decision on 24 June 2020, the 2^nd Applicant was still a minor.  However, by the time of the hearing of the Applicants’ application for leave to apply for judicial review before the Judge on 26 July 2023, the 2^nd Applicant had attained full age.

3.The 1^st Applicant first arrived in Hong Kong to work as a foreign domestic helper in 2000.  Her last employment contract was prematurely terminated on 26 September 2011.  She was permitted to stay as a visitor until 10 October 2011.  She did not depart after the expiry of her limit of stay.  On 11 October 2011, she surrendered herself to the Immigration Department, and lodged a non-refoulement claim.

4.In the meantime, the 2^nd Applicant arrived in Hong Kong as a visitor on 26 June 2010.  She was last permitted to stay in Hong Kong as a student until 20 August 2012 under the sponsorship of the 1^st Applicant’s former employer.  On 21 August 2012, the 1^st Applicant lodged a non-refoulement claim on behalf of the 2^nd Applicant.

5.The 1^st and 2^nd Applicants relied on the same factual basis in support of their non-refoulement claims, namely, that if refouled, they would be harmed or killed by (i) a gangster called Rohana Liyanage (“Rohana”), because the 1^st Applicant had filed a civil suit against Rohana to recover a property which belonged to her but unlawfully sold by her ex-husband (“the Husband”), through a third party, to Rohana in 2009, and (ii) the Husband, as he believed that the 1^st Applicant had caused trouble to his family by refusing to give up her property to Rohana.  The 1^st Applicant said that Rohana worked for the United People’s Freedom Alliance (“the UPFA”), and was associated with a former Deputy Minister of Sri Lanka called Sarana Gunawardhana (“Sarana”), who also belonged to the UPFA.  Nevertheless, Mr Ko (who appeared for the Applicants at the hearing of this appeal) confirmed that the 1^st Applicant’s evidence was that the threats of harm (directly or indirectly) against her and her daughter all came from Rohana, not Sarana, although he maintained that because of Rohana’s association with Sarana, the latter’s position and influence in Sri Lanka was relevant to the Applicants’ non-refoulement claims.

6.By a Notice of Decision dated 31 December 2015 (“the Director’s First Decision”), the Director dismissed the Applicants’ non-refoulement claims with reference to the following risks: the risk of torture[1], BOR 3 risk[2], and persecution risk[3].  

7.On 23 May 2017, the Board dismissed the 1^st and 2^nd Applicants’ appeal against the Director’s First Decision (“the 2017 Decision”).  In summary, the Board considered that the Applicants’ case was a private dispute over the 1^st Applicant’s property without state involvement (§§8-11).  The Board considered that there were no substantial grounds to believe that the Applicants would face a real risk of being subjected to torture, or cruel, inhuman or degrading treatment or punishment, or persecution if they were to return to Sri Lanka, and in any event, the relevant country of origin information (“COI”) showed that reasonable state protection and internal relocation alternatives would be available to them (see §§21, 26-27 and 31-32 of the 2017 Decision).

8.The Director, by a letter dated 12 September 2016, invited the Applicants to submit additional facts (if any) which might be relevant to their non-refoulement claims with reference to BOR 2 risk[4].  On 18 November 2016, the Applicants via the Duty Lawyer Service submitted some further materials pertaining to COI of a general nature, but did not submit any other additional materials or facts in support of their claims[5]. 

9.By a Notice of Further Decision dated 31 May 2017, the Director rejected the Applicants’ claims with reference to BOR 2 risk (“the Director’s Second Decision”). 

10.The Applicants appealed the Director’s Second Decision to the Board.  On 23 July 2019, the Board heard the Applicants’ appeal. The Applicants were legally represented before the Board.  One day before the hearing, the Applicants submitted some further documents to support her allegation that she had lodged a civil case against Rohana in Sri Lanka claiming that the transfer of her land away from her was fraudulent and illegal.  On 24 June 2020, the Board gave a written decision dismissing the Applicants’ appeal and confirming the Director’s Second Decision (“the 2020 Decision”).  The Judge summarised the Board’s findings at §10 of the CALL-1 Form (“the Decision”):

“In the first instance, the Board noted that the basis of the [Applicants’] claim under BOR 2 risk in the Director’s Second Decision is identical to their previous claim under the Director’s First Decision which has been duly considered by the Board [5][6]. During the hearing, the [Applicants] produced a document from a Sri Lankan magistrates court in support of their civil claim against Mr Rohana for the alleged wrongful transfer of the subject land [7]; and they again contended that they would be easily located by Mr Rohana/Mr Sarana/the ex-husband due to the identity registration system in Sri Lanka [8]. However, the Board held that the registration system did not assist the [Applicants] [8]. It also held that despite Mr Sarana being in legal trouble with the police, the [1^st Applicant’s] belief that he would not be in custody for a long time was pure speculation [9]. Based on updated objective and credible [COI], the Board further found it would be nearly impossible for the perpetrators to track down the [Applicants] in Sri Lanka. The Board therefore found the [Applicants] had failed to substantiate their claim that they will be at risk of losing their lives under BOR 2 risk if they return to Sri Lanka.”

11.The Board dismissed the Applicants’ appeal for the reasons set out in the 2017 Decision as well as those in the 2020 Decision (see §12 of the 2020 Decision). 

THE JUDGE’S DECISION

12.On 23 September 2020, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the 2020 Decision. The Form 86 was prepared by the Applicants’ lawyer on their behalf.  In the Form 86, the Applicants raised seven grounds of review, which the Judge set out at §13 of the Decision.

13.With the court’s leave granted on 22 May 2023, an Amended Form 86 was filed in substitution for the Form 86 previously filed. Although the Applicants were acting in person at that stage, it is clear that the Applicants had legal assistance in formulating the Amended Form 86.  In the Amended Form 86, the Applicants raised three grounds of judicial review, which the Judge set out at §15 of the Decision, as follows:

“(1) The Board failed to engage in the proper approach in assessing the [Applicants’] personal connection to BOR 2 risk, including the Board cherry-picked COI in relation to the availability of state protection;

(2) The Board erred in law in assessing internal relocation alternatives by, inter alia, ignoring the fact that the [1^st Applicant’s] dispute with her persecutors has been publicized by national and international [press]; and

(3) The Board misdirected itself in assessing [the 2^nd Applicant’s] non-refoulement claim without separate consideration for the child-specific issue, contrary to Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020.” 

14.The Applicants’ application for leave to apply for judicial review was heard by the Judge on 26 July 2023.  On 12 April 2024, the Judge gave his decision refusing to grant leave to the Applicants to apply for judicial review for the following reasons:

“[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicants’] appeal. The Court will not usurp the fact finding power vested in the Director and the Board…

[17] The Court will bear in mind that the [Board’s 2020 Decision] should be examined with rigorous examination and anxious scrutiny.

…

[19] It is clear that the [Applicants] were legally represented before the Board. The fear that the minor’s interest was not put to the Board because of lack of legal representation as held by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 does not apply to the present case.

[20] Even if the case were referred to the Board for re-consideration, the [2^nd Applicant] is now of age. The Board is duty-bound to assess her situation on the date of the hearing, as held by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, CJ Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ. 21 December 2012

‘176. …the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a ‘full and up-to-date assessment’ of the current situation.’

[21] The grounds under paragraph 13 are similar to those grounds under paragraph 15. Ground (7) under paragraph 13 is the same as ground (2) under paragraph 15.

[22] Ground (1) to ground (6) under paragraph 13 are the [Applicants’] opinions or general assertions or propositions of the law without any concrete evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327. See also Re Haider Khalil [2021] HKCA 223 [16].’

[23] As to the grounds under paragraph 15, ground (1) is the general assertion. In Form 86, the [Applicants] have raised that the Board had cherry-picked COI in relation to the availability of state protection. This is within the province of the Board as held by the Court of Appeal in Re: Kartini. This Court should not interfere with the Board’s decision.

[24] The [Applicants’] complain that the Board erred in law in its assessment of relocation alternative as it failed to discuss the alternative with them and also failed to suggest any alternative for their relocation. The Board had set out a list of cities in Sri Lanka with the populations therein, just to show that it would be quite impossible for their enemies to locate them among the huge number of population in the cities. Now the [2^nd Applicant] is of age. It will be much easier for the [1^st Applicant] to find a place for her to settle down safely. There is nothing in this point.

[25] Ground (3) fails as the [2^nd Applicant] was legally represented before the Board and now she is of age. See paragraph 19, supra.

[26] Before me, the [1^st Applicant] asked me to re-consider their cases as she wants her daughter to stay in Hong Kong to start her life again. The [2^nd Applicant] produced a letter from the Baptist University offering to admit her to study in the University. However, I do not consider these are valid grounds in support of their non-refoulement claim or to challenge the [Board’s 2020 Decision].

[27]     Those grounds raised by the [Applicants] are not valid to challenge the [Board’s 2020 Decision]. The [Applicants] therefore fail to show that they have any realistic prospect of success in their intended judicial review against the [Board’s 2020 Decision].”    

THE APPEAL

15.In their Notice of Appeal filed on 22 April 2024, the Applicants merely stated that their legal aid applications were being processed and they reserved their right to amend or supplement their Notice of Appeal.

16.On 16 December 2024, the Applicants were granted legal aid.  On 16 May 2025, the Applicants filed a summons (“the Summons”) seeking leave to amend the Notice of Appeal.  Three grounds of appeal are raised in the Amended Notice of Appeal:

(1)     The Judge erred in holding that the issue of minor-specific risks did not arise.

(2)     The Judge erred in (a) failing to make specific findings in respect of the Applicants’ ground of review concerning state protection, and “cherry-picking” of country of origin information, and/or (b) misapplying the principle in Re Kartini [2019] HKCA 1022, in rejecting the said ground of review.

(3)     The Judge failed to identify the Board’s error of law in assessing internal relocation alternatives.

THE SUMMONS

17.On behalf of the Applicants, Mr Ko submits that leave to amend the Notice of Appeal should be granted because, amongst other things, the grounds of appeal in the Amended Notice of Appeal are substantially the same as the grounds of review put forward in the Amended Form 86 and summarised in the Decision, and the proposed amendments raise no new points and are reasonably arguable.  The submission that the grounds of appeal in the Amended Notice of Appeal are substantially the same as the grounds of review put forward in the Amended Form 86 displays a misunderstanding of the function of a Form 86 and a notice of appeal.  The former should set out, inter alia, the grounds of review of the relevant decision of a public body intended to be challenged by way of judicial review, whereas the latter should set out, succinctly, the grounds for challenging a judgment of the Court of First Instance.  Nevertheless, in view of the fact that the Applicants were acting in person at the time when the original Notice of Appeal was filed, we are prepared to grant leave to the Applicants to amend the Notice of Appeal as per the draft Amended Notice of Appeal annexed to the Summons dated 16 May 2025.  We shall deal with the question of costs at the end of this judgment.

GROUND 1

18.Under this ground, Mr Ko argues that the Judge erred in holding that the issue of child-specific risk did not arise because the Applicants “were legally represented before the Board” (see §19 of the Decision), notwithstanding the fact that the 2^nd Applicant was still a minor at the time of the hearing before the Board.

19.In our view, the Judge erred in taking the view that the issue of child-specific risk did not arise merely because the 2^nd Applicant was legally represented before the Board.  The court’s basic approach in relation to the assessment of a minor’s non-refoulement claim is well settled:

(1)     Non-refoulement claim by a child is a separate claim from the claims made by his/her parents. In principle, the decision-maker should consider each claim by reference to the personal circumstances of each claimant.

(2)     Even if the claims are based on the same set of primary facts, it would be an error of law if the decision-maker simply decides all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim of a parent that his/her child’s claim should also be dismissed without further consideration of his/her personal circumstances.

(3)     Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

(4)     When dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of his/her non-refoulement claim, the court should pay special attention to examine, in the context of the high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which have not, or have not properly, been advanced to the Board because of the absence of legal representation.

See Re Jasvir Singh [2021] HKCA 53, §§30-31, following Fabio Arlyn Timogan [2020] HKCA 971, §34.

20.The fact that a minor is legally represented in an appeal before the Board does not negate the Board’s duty to consider his/her claim separately from the claim(s) of the minor’s parent(s), or whether there exist any minor-specific risks or considerations applicable only to the minor’s situation.  The correct position was stated by the Court of Appeal in A and Others v TCAB [2024] HKCA 471:

“[40] There is force in the submission that, notwithstanding the 3^rd to 5^th applicants were legally represented in the proceedings before the Board and the Director, the Board’s jurisdiction under the statutory scheme for non-refoulement claimants is not restricted to the parameters of what was submitted by their legal representatives. Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that all relevant non-derogable rights of the applicants are given meaningful protection and the Board is required to exercise its powers to fulfil this positive duty. See Siti Naisah Tasya Stephanie, A Minor, By Her Next Friend and Mother, Siti Naisah v Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another [2023] HKCA 336 at §26, citing Chan Ki Kau v Commissioner of Police [2020] 5 HKLRD 653 at §§73-75.

[41] It would appear that the Board had not conducted its independent enquiry into whether the 3^rd to 5^th applicants’ claims would require separate consideration and assessment beyond the submissions advanced by their solicitor.

[42]     For the above reasons, we think that the Board’s rejection of the 3^rd to 5^th applicants’ claims (treated as effectively subsumed within their parents’ claims) would appear to be contrary to the principles laid down in Fabio Arlyn Timogan and Re Jasvir Singh, in particular, the principle that the dismissal of the claim of a parent should not automatically lead to the dismissal of the claims of the minors without separate consideration of each of the minor’s personal circumstances. Leave to seek judicial review and the application for judicial review should also be granted on the Separate Consideration Ground.”

21.The above approach was adopted and applied in a more recent judgment of the Court of Appeal in Begum Shufia & Others v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2024] 5 HKC 593, at §19.

22.However, the mere fact that the Board has failed to conduct a separate assessment of a minor’s claim or consider the possibility of minor-specific risks does not necessarily mean that the Board’s decision insofar as it concerns the minor must be quashed.  It is still necessary to look closely at the nature and circumstances of the minor’s claim to see whether any separate consideration of such claim might lead to a different result, including whether there exist any relevant minor-specific risks or considerations which ought properly to have been considered by the Board.

23.In the present case, Mr Ko submits that the minor-specific risks that exist vis-à-vis the 2^nd Applicant and her personal circumstances (which the Board and the Judge failed to consider) include the following:

(1)     The 2^nd Applicant’s age, gender and stage of development.

(2)     The 2^nd Applicant entered Hong Kong when she was 5 years old and grew up here.  She does not have social and cultural ties with Sri Lanka.

(3)     The 2^nd Applicant may face risk of persecution arising out of the 1^st Applicant’s involvement in a land dispute.  She is also subject to a risk of exploitation by her father and potential psychological harm arising from it.

(4)     There is evidence that one of the 1^st Applicant’s persecutors (Rohana) visited the 2^nd Applicant’s school on more than one occasion and he indicated that he would teach the 1^st Applicant a lesson “through” the 2^nd Applicant.  Rohana also visited the house of the mother-in-law of the 1^st Applicant with guns.

(5)     The Grama Niladhari identity system (“Grama System”)in Sri Lanka would create a barrier to the 2^nd Applicant’s relocation within Sri Lanka and to her access to education.

24.In considering the relevance of the above matters, it is important to bear in mind the nature of the risk(s) that it is alleged the 2^nd Applicant would face upon refoulement, and the Board’s reasons for rejecting the 2^nd Applicant’s claims insofar as BOR 2 risk was concerned.

25.In respect of the alleged risk of harm from the Husband, the Board took the view that the Applicants’ fear could be disposed of quickly because (i) since 2012, the 1^st Applicant has not heard from the Husband anymore, (ii) the Husband never assaulted the 1^st Applicant, and (iii) back in June 2010, when the Husband was still in prison, he wrote a letter to the 1^st Applicant advising her to leave the country quickly as he was afraid that Rohana would harm her and the 2^nd Applicant, which showed that he in fact cared about her.  The Board considered that the 1^st Applicant’s fear of harm by the Husband was a mere and vague speculation which was insufficient to support a non-refoulement claim (see §3 of the 2017 Decision).  There is no challenge to these findings made by the Board.  In any event, assessment of the evidence is primarily within the province of the Board (and the Director).  There is no proper ground to challenge the Board’s findings on this matter.  It follows that there is no proper basis for the contention that the 2^nd Applicant may be at risk of exploitation by her father, or may suffer any psychological harm arising from such exploitation.  The fact that the 2^nd Applicant was a minor at the time of the hearing before the Board is neither here nor there.

26.As for the risk of harm from Rohana, it is important to bear in mind the Board’s essential reasons for rejecting the Applicants’ claims, namely, that there was no state involvement and there were reasonable state protection as well as internal relocation options available to the Applicants.  Leaving aside for the moment the Applicants’ challenge to these findings of the Board (which will be considered under Grounds 2 and 3 below), none of the matters referred to in §23(1) to (4) above could give rise to any minor-specific risk applicable to the 2^nd Applicant’s situation only having regard to the grounds on which the Applicants’ non-refoulement claims with reference to BOR 2 risk were rejected by the Board.

27.Insofar as the Grama System is concerned (see §23(5) above), the Board made the following findings at §§18 and 20 of the 2017 Decision:

“[18] … At the hearing, her Duty Lawyer relied on the ‘Grama Nilardhari’ identity system in Sri Lanka to say that A1 cannot relocate, but the system does not prohibit citizens from relocating …

[20]     The ‘Grama Niladhari’ identity system is designed for registration for the purpose of election. But even if R has the time and resources and patience and willingness to search through what must be literally millions of names in numerous electorates in the whole of Sri Lanka, sieving them for A1’s name (and assuming A1’s name is spelt in a unique way), is looking for a needle in a haystack.  The chance of R locating the Appellant via the Grama Niladhari system is remote and does not pass the legal threshold.”

28.In the Applicants’ appeal against the Director’s Second Decision, the Applicants did not put forth any new materials to challenge the above findings of the Board, but sought nevertheless to rely on the Grama System in support of the appeal.  The Board rejected the Applicants’ reliance on the Grama System, observing at §8 of the 2020 Decision that:

“At the new hearing the ‘Grama Niladhari’ (‘Grama Seveka’) identity registration system was again raised in relation to relocation away from Village Nittambuwa where A1’s husband and Messrs Rohana and Sarana Gunawardene (‘SG’) are residents. A1 says that the Grama system would reveal her and A2’s location wherever they may be in Sri Lanka. I have already discussed this topic in the [2017 Decision] and found, as I now found, the Grama system does not help the Appellants’ cause.”

29.In the Amended Form 86, the Applicants argue that the Adjudicator misapprehended the relevance of the Grama System when he said that “the system does not prohibit citizens from relocating”, in that the relevance of the Grama System is not that it prohibits the Applicants from relocating; rather the relevance of the Grama System lies in the fact that it poses a real and practical barrier to their ability to relocate safely because, as the 1^st Applicant sought to explain to the Adjudicator at the hearing, it requires that she obtains a letter from the local police of her village confirming her intention to move to another village before she could register herself at the new village and enrol her daughter (the 2^nd Applicant) in school.

30.We do not accept this argument.  As mentioned above, the Board found at §20 of the 2017 Decision that the Grama System was designed for registration for the purpose of election.  There was no finding that under that system, the 1^st Applicant needed to obtain a letter from the police of her local village confirming her intention to move to another village before she could register herself at the new village, or that her registration at the new village was relevant to the ability of the 2^nd Applicant to enrol in school.  The Applicants (and their lawyers) were well aware of the Board’s findings in the 2017 Decision, but did not produce any fresh materials in relation to the Grama System.  The Board was not bound to accept the 1^st Applicant’s assertions regarding the Grama System.  The Board plainly had re-considered the Applicants’ reliance on the Grama System to argue that internal relocation was not an option for them, but remained of the view that it did not help the Applicants’ case (see §8 of the Board’s 2020 Decision quoted above).  There is no proper or sufficient basis for the court to intervene in the Board’s findings on this matter.  That being the position, we do not consider that the Grama System can be relied upon as giving rise to any minor-specific risk which requires separate consideration when assessing the 2^nd Applicant’s non-refoulement claim.

31.In all, while we consider that the Judge erred in taking the view that the Board was not required to consider the 2^nd Applicant’s non-refoulement claim separately or any minor-specific risk which might be relevant to the 2^nd Applicant’s situation only because she was legally represented before the Board, we are of the view that this error is not material to the outcome of the 2^nd Applicant’s application for leave to apply for judicial review.

32.As the Court of Appeal held in Re Rina Mulyani & Another [2021] HKCA 1156, at §25, if the court is satisfied that the Board has achieved high standard of fairness in dealing with a minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  We are satisfied that this is the situation here.

GROUND 2

33.Under this ground, Mr Ko argues that the Board “cherry-picked” COI which was unfavourable to the Applicants and failed to give proper weight to COI that was favourable to them.  In particular:

(1)     The Board relied largely on sources published by the state.  Out of the 5 sources referred to by the Board, 3 were from official websites of the Sri Lankan authorities. They contain general information but no particulars as to any protection available to persons in Applicants’ situation.

(2)     In the 2020 Decision, at §§3.2-3.3, the Board made brief references to several articles and publications relied upon by the Applicants to show that Sri Lanka was fraught with corruption and violation of basic human rights.  The Board did not, however, analyse those materials in deciding whether state protection would be available to the Applicants.

(3)     Although the Board stated that the COI it referred to had been provided to the Applicants and the Respondent for comment, the Board did not refer to any such comment in the 2020 Decision.

(4)     It does not appear that any “contrary view” had been taken into account by the Board in arriving at the conclusion that “women and children have reasonable state protection from crime” (§10 of the 2020 Decision).

(5)     In any event, a general statement that women and children are protected “from crime” does not demonstrate that the Board had properly considered the context and circumstances of the Applicants’ claims, eg that one of their persecutors (ie Rohana)[7] was a member of UPFA and that the 1^st Applicant had previously sought assistance from the Sri Lankan police but to no avail (Amended Form 86, §§8, 14).

34.Mr Ko argues that the Board must conduct an independent assessment of the relevant COI to demonstrate that it was aware of the relevant information suggestive of a contrary view and had taken the same into account, relying on Re MI (CACV69/2014, unreported, 26 September 2014), at §40; and Ina Astuti v Torture Claims Appeal Board [2022] HKCA 448, at §37, and the Board’s assessment of COI was tainted with irrationality, inadequacy of reasons and/or procedural unfairness. He further argues that the Judge erroneously held that the Applicants’ complaint about cherry-picking of COI was a “general assertion”, and submits that the Judge, without engaging with the substance of the matter at all, simply brushed the Applicants’ arguments aside by saying that they were matters “within the province of the Board”.

35.In our view, none of the matters complained of by Mr Ko referred to in §33 above has merit.

(1)     In respect of §33(1) above, Mr Ko refers only to the 2020 Decision, but has failed to refer to the 2017 Decision, where the Board considered a substantial body of COI in coming to the conclusion that reasonable state protection and internal relocation alternatives were available to the Applicants. Some of the materials considered by the Board in the 2017 Decision were not published by the Sri Lankan authorities, including reports and materials from the US Department of State and US Central Intelligence Agency, and a publication from Women and Media Collective.  As mentioned on the first page of the 2020 Decision, that decision should be read together with the 2017 Decision.  The Board expressly incorporated the reasons in the 2017 Decision as part of the reasons for dismissing the Applicants’ appeal against the Director’s Second Decision (see §12 of the 2020 Decision).  In any event, even according to Mr Ko’s submissions, 2 out of 5 sources referred to by the Board in the 2020 Decision are not from official websites of the Sri Lankan authorities.  Further, we see no reason in principle why publications by state authorities cannot be relied upon as evidence of relevant COI in non-refoulement cases.  The weight that may be given to such publications obviously depends on the circumstances, but there is no proper basis to contend that the materials considered by the Board in this case were unreliable, or should be given no weight at all.

(2)     In respect of §33(2) above, the Board referred to the materials which the Applicants produced in support of their claims, noting the submissions of the Applicants’ lawyers that Sri Lanka was a country “with corruption and violation of basic laws”.  The materials which the Applicants referred to are largely general in nature (although the views expressed may be based on specific cases or examples), so are the materials which the Board took into account in coming to the view that reasonable state protection and internal relocation alternatives were available to the Applicants.  That the contents of the COI considered by the Board are general in nature is hardly surprising, and would be so in the vast majority of cases where the Board has to consider COI in the assessment of a non-refoulement claim.  It is also not uncommon that conflicting pictures about the human rights situation of a country are portrayed in different publications, which may be due to the different perspectives from which a matter is looked at, or different emphases being placed on particular matters, or sometimes different purposes for which the publications are compiled.  The task of the Board is not to conduct a detailed critique of the COI placed before it by the parties.  Such an exercise would in any event be unrealistic having regard to the nature of the hearing as well as the limited materials which may be made available to the Board.  In the case of general information, there may be little that can be said about the reliability of the COI before it.  On the other hand, the Board is a specialist tribunal, and the adjudicators sitting on the Board are highly experienced in dealing with COI of different countries.  This consideration supports the general principle that the assessment of COI is primarily within the province of the Board (and the Director).  We do not consider that there is any general duty on the Board to analyse the COI in a manner as suggested by the Applicants.  This does not mean that the Board’s finding on COI is immune from challenge in an application for judicial review.  For example, the court may properly intervene if the finding is irrational or contrary to the overwhelming sense of the COI before the Board, or some relevant breach of procedural fairness is involved, or there is some particular point or matter in a publication which cries out for further analysis or exposition but has not been dealt with by the Board.  However, save in such exceptional cases, we consider that the court should not, in an application for judicial review, stray into a merits review of the Board’s decision.  Mr Ko relies on the following passage in Re MI (CACV 69/2014, unreported, 26 September 2014), at §40:

“The decision-maker should indicate the materials to which he has had regard in reaching his Decision and the information or particular passages on which he relies for his Decision. If the materials contain passages or information suggestive of a contrary view then the decision-maker should demonstrate that he is aware of them and has taken them into account.”

We do not consider that this passage is inconsistent with the approach mentioned above, or that the Board has failed to properly consider the materials pertaining to COI in the present case.

(3)     In respect of §33(3) above, Mr Ko has not identified any relevant comment which might have been made by the Applicants (or the Director) on the COI referred to by the Adjudicator.  At the hearing, Mr Ko confirmed that he had “no information” on whether the Applicants or their lawyers in fact made any comment on the COI notwithstanding the opportunity offered by the Adjudicator as mentioned at §10 of the 2020 Decision.  In our view, this complaint has no foundation, and is a non-starter.

(4)     The complaint in §33(4) above adds nothing of substance to that referred to in §33(2) above.  As earlier mentioned, the Board was plainly aware of the materials relied upon by the Applicants and the general allegation made by their lawyers based on such materials that “Sri Lanka is a country with corruption and violation of basic laws”.  On the other hand, there were other materials before the Board which supported the view that “women and children have reasonable state protection from crime”.  These two statements are not mutually inconsistent.  The Board was entitled, in our view, to come to the view that the Applicants would receive reasonable state protection against their alleged risks of harm should they return to Sri Lanka.

(5)     Finally, in respect of §33(5) above, the complaint that the Board had not properly considered the context and circumstances of the Applicants’ claims, in particular that (i) one of their persecutors (Rohana) was a member of the UPFA, and (ii) the 1^st Applicant had previously sought assistance from the Sri Lanka police but to no avail, is unsustainable.

(a)     In respect of the 1^st point, the Board was fully aware of the allegation that Rohana worked for UPFA (see §3 of the 2017 Decision), but took the view that there was no substantial risk that the Applicants would be tracked down by Rohana because, due to the size and population of Sri Lanka, it would be like looking for a needle in a haystack.  He did not consider that Rohana would be interested in locating the Applicants all over Sri Lanka even if he had the manpower and resources to do so (see §§17 and 21 of the 2017 Decision, and §11 of the 2020 Decision).  The Board found that Rohana was not “above the law” as suggested by the 1^st Applicant, bearing in mind that, according to the 1^st Applicant, Rohana in fact wanted her to withdraw her civil claim against him (see §26 of the 2017 Decision).  The Board also expressed the view that Rohana, “even including his small handful of offsiders, do not come within the meaning of ‘populace’ in refugee law” (see §31 of the 2017 Decision).  We are not satisfied that the Board had failed to properly take into account the Applicants’ claim that one of the alleged persecutors was a member of UPFA.

(b)     In respect of the 2^nd point, the Board found that the 1^st Applicant obtained help from the Veyangoda Police Station, the Fraud Investigation Bureau in Wellawatte, and the Senior Superintendent for the Gampaha Division. Although the 1^st Applicant said that the police investigation was slow or not moving, the Board took that view that this was understandable as fraud investigations frequently took a long time, and besides, the civil aspect of her case was being dealt with by the District Court of Gampaha and the police could hardly play a part in it.  As to the Husband’s fraud, the Board pointed out that he had already been sentenced to jail.  Overall, the Board took the view that there was no evidence of “official acquiescence” or “passive acquiescence” on the part of the Sri Lankan Police Force or the Government of Sri Lanka (see §8 of the 2017 Decision).  In our view, it cannot be said that, in the context of its assessment of the issue of state protection, the Board had not properly considered the 1^st Applicant’s allegation that she had previously sought assistance from the Sri Lankan police but to no avail.

36.Overall, we consider that the Applicants’ complaint of cherry-picking of COI by the Board is unjustified, and the Board’s assessment of COI in the present case could not be said to be tainted by irrationality, inadequacy ofreasons and/or procedural unfairness.  We are also of the view that the Judge was correct to hold that the assessment of COI was within the province of the Board, and there was no basis for the court to interfere with the Board’s findings based on COI in the present case.

GROUND 3

37.Under Ground 3, Mr Ko raises 2 major complaints on behalf of the Applicants.

38.First, Mr Ko said that the Board, in finding that reasonable internal relocation alternatives were available to the Applicants, merely listed out the sizes of the population in various cities in Sri Lanka and went on to state that given the sizes of the population, the Applicants would be like “two needles in a haystack” and it would be difficult for them to be located.  He complains that the Board failed to identify any specific safe places for the Applicants to relocate, and also failed to refer the Applicants to the materials or information that it was relying on such that the Applicants would have an opportunity to respond to them.  Further, the Board did not consider the implications of the Grama System on the issue of relocation and ignored the evidence of the Applicants that the 1^st Applicant’s dispute with her persecutors had been publicised by national and international press.

39.We do not accept Mr Ko’s complaints:

(1)     In Md Nazir Ahmed Sarkar v Torture Claims Appeal Board [2021] 5 HKC 237, at §65, Lam VP (as he then was) set out the proper approach for considering the issue of internal relocation-

“The first question that a primary decision-maker has to ask in connection with internal relocation is whether the risk of harm is a localized one. The second question is whether there are places in the same country where it would not be unreasonable and unsafe for the claimant to relocate to. To answer these questions properly, the primary decision-maker has to identify the source of risk of harm (the persecutor) and evaluate the extent and influence of the persecutor.”

(2)     In the present case, Rohana was alleged to be a gangster and a member of UPFA.  There is, however, no evidence that his influence or reaches extended beyond his local village (Nittambuwa) where he, the Husband and Sarana were all residents (see §8 of the 2020 Decision).  On the contrary, the Board found that Rohana, even including his “small handful of offsiders”, did not come within the meaning of “populace” (see §31 of the 2017 Decision). Bearing in mind the fact that Rohana’s dispute with the 1^st Applicant concerned only a property in a local village, it would be far-fetched to suggest that he could mobilise members of UPFA all over Sri Lanka to track down the 1^st and 2^nd Applicants.  We do not consider that there is any proper basis for the Applicants to contend that Sarana presented a source of risk of harm to them should they return to Sri Lanka.  The mere fact that Rohana was somehow associated with Sarana plainly cannot be taken to mean that the latter would take any step or action to harm the Applicants in Sri Lanka.  In any event, as pointed out by the Board, Sarana was himself in trouble with the Sri Lankan police, and apparently was in custody and being tried for fraud related offence(s) at the time of the hearing before the Board (see §9 of the 2020 Decision).  In our view, the Board was justified to consider that the alleged risks of harm to the Applicants should they return to Sri Lanka was a localized one.

(3)     In the 2017 and 2020 Decisions, the Board, based on relevant COI, identified no less than 14 to 15 large cities in Sri Lanka away from the 1^st Applicant’s village where the Applicants could relocate to, and came to the view that there was no substantial risk of them being tracked down by the Husband, Rohana and/or Sarana in those places.  The Board plainly considered that there were places in Sri Lanka where it would not be unsafe for the Applicants to relocate to.

(4)     The complaint that the Board failed to identify specific safe places in Sri Lanka has no merit.  It was not the Applicants’ case that they had specific objections to relocating to all the 14 to 15 different places named by the Board.  At best, the Applicants have identified only 2 particular cities (Kandy and Colombo) in the Amended Form 86 (at §22) where they say relocation would not be viable.  The Applicants’ objection to internal relocation was, by and large, a general one, namely, a fear of being located by the Husband, Rohana and/or Sarana wherever they should go in Sri Lanka. However, the Board made a factual finding against the Applicants on this matter, and we consider it was a finding that was open to the Board to make on the materials before it.

(5)     The complaint that the Board failed to refer the Applicants to the materials or information that it was relying on and thus the Applicants had no opportunity to respond to them is a lame one.  Mr Ko confirms that the relevant materials on COI which the Board referred to in the 2017 Decision were in the hearing bundle, while those referred to by the Board in the 2020 Decision were specifically drawn to the attention of the Applicants’ lawyer.  The relevant information that the Board took into account was general in nature (relating to the size of Sri Lanka and the populations in different cities in Sri Lanka), and could not sensibly be disputed.  It cannot seriously be argued that the Applicants did not have reasonable opportunities to respond to the materials relied on by the Board.

(6)     We have considered the Grama System relied upon by the Applicants under Ground 1 above, and do not propose to repeat our views here.

(7)     Lastly, the fact that the 1^st Applicant’s dispute with her alleged “persecutors” had been publicised by national and international press was, it seems to us, mainly relevant to show that the 1^st Applicant’s allegation that she had a dispute with Rohana was genuine.  However, the Board rejected the Applicants’ claim not because it did not accept that the 1^st Applicant truly had a dispute with Rohana over the transfer of her property.  As earlier mentioned, the Board’s decision was mainly on the ground that reasonable state protection and internal relocation alternatives were available to the Applicants.  We do not see that the existence of domestic and/or international publicity of her dispute with Rohana has any real or significant impact on these findings of the Board.

40.Second, Mr Ko argues that the following factors are relevant to whether there are places in Sri Lanka where it would be unreasonable and/or unsafe for the Applicants to relocate to:

(1)     The Grama System would expose the Applicants’ place of residence to the authorities.

(2)     The 1^st Applicant is a single mother and the 2^nd Applicant was a minor (at the time of the hearing before the Board).

(3)     The Applicants’ respective personal characteristics such as age, gender, education level and job experiences.

(4)     The 2^nd Applicant had been away from Sri Lanka since the age of 5.

41.It is unnecessary to dwell on the Grama System, which we have already considered above.  The other matters relied on by Mr Ko may mean that the Applicants will likely experience some hardship if they have to return to Sri Lanka and live away from the 1^st Applicant’s home village, but cannot be elevated to a real risk to their “right to life” under BOR 2.

42.In conclusion, all three grounds of appeal raised by the Applicants are rejected. 

DISPOSITION

43.Leave is granted to the Applicants to amend the Notice of Appeal under the summons dated 16 May 2025, and an order is made in terms of paragraphs 1, 2 and 3 of that summons.

44.The Amended Notice of Appeal is dismissed.

45.No order is made as to the costs of the Applicants’ summons and appeal, save that the Applicants’ own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Jason Ko, instructed by Cedric & Co., assigned by the Director of Legal Aid, for the 1^st and 2^nd Applicants

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

[2] 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.

[3] 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.

[4] This refers to the risk of being arbitrarily deprived of their lives under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] See §3.1 of the 2020 Decision.

[6] The numbers in square brackets are references to the 2020 Decision.

[7] At the hearing, Mr Ko confirmed that the “persecutor” referred to at §17.5 of his Skeleton Arguments for the Applicants dated 6 May 2025 was Rohana.