Case Document

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HCAL 1316/2021

[2025] HKCFI 4309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1316 OF 2021

BETWEEN
	Weliwita Liyanage Sudath Chandrasiri	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 Deputy High Court Judge Bruno Chan:

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

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Sri Lanka who arrived in Hong Kong on 22 May 2004 as a visitor with permission to remain as such up to 21 June 2004 when he did not depart and instead overstayed, and was arrested by police almost 2 years later on 17 March 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Sri Lanka he would be harmed or killed by certain local supporters of the political party Sri Lanka Freedom Party (“SLFP”) as he supported their rival United National Party (“UNP”), and after his torture claim was rejected, he then sought non‑refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ragama, Western Province, Sri Lanka. After leaving school he ran his own business, got married and raised a family with 2 children in his home district, and supported UNP regularly attended their local meetings and activities without holding any official post in the party.

3.One day in 2004 while he was assisting in the UNP’s election campaign in his home district, the Applicant was attacked by some local SLFP supporters with wooden sticks, and in his defense to the attack the Applicant struck one of the assailants in the head with some hard object that the man collapsed to the ground, whereupon the Applicant managed to flee from the scene with slight injuries.

4.After the incident the Applicant took shelter in a friend’s place in a neighboring village, but when he later heard that the man struck by him in the head had died from his injuries that the local SLFP supporters were looking to kill him in revenge, and after one occasion when they were unable to find him in his home that they threatened and assaulted his wife and daughter, the Applicant became fearful for his life and fled to Jaela, and on 16 May 2004 he departed Sri Lanka for China, and from there he later travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 27 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 24 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his 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”).

6.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 will be any real and substantial risk of him being harmed or killed by those SLFP supporters upon his return to Sri Lanka due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that the SLFP supporter had indeed died in the incident other than hearsays or of any real intention of those SLFP supporters to seriously harm or kill him for whatever reason that it is not accepted that there would still be any adverse interest in him after all these years since he left the country in 2004, that in any event in the absence of any 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 his home district in large cities such as Colombo where it would be difficult if not impossible for anyone to locate him.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 10 September 2019 and 2 October 2019 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 8 September 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of being a UNP supporter and was involved in an incident with certain local SLFP supporters but found no reliable evidence that there was anyone killed during that incident or that thereafter those SLFP were looking to harm or kill him in revenge or that they had threatened or attacked his wife and daughter as alleged by the Applicant, and that his creditability was further undermined by his failure to raise his claim upon first arriving in Hong Kong until almost 2 years later and only after he was arrested by police, and concluded that the Applicant had fabricated his case for non-refoulement protection that his claim for non-refoulement protection failed on all applicable grounds.

9.On 21 September 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his 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 his intended challenge of the Board’s decision.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as submissions from his lawyer on his behalf, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.Furthermore, the fact is that it has also 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 him to relocate to other part of Sri Lanka, a decision also agreed and confirmed by the Board, there is simply no justification to afford him 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 25 April 2025 filed an affirmation requesting to withdraw his application as he has now been granted a dependent visa but without any necessary or relevant details or supporting documents.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 18^th day of September 2025

(Klein Tse)
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 18 September 2025 Weliwita Liyanage Sudath Chandrasiri 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 18 September 2025 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 12741/18/8/11/S271, TCAB 660/13/8/6/S157 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2156/18 (Formerly RBCZ 2001164/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)