Disanayaka Mudiyanselage Wijerathna Bandara Alias Dissamayake Mudiyanselage Wijieratne Banda v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2208/2020

[2026] HKCFI 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2208 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 Levy:

1.  The Form 86 be amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 3 November 2020, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 17 September 2020 (“Board’s Decision”) dismissing the applicant's appeals against the decisions of the Director of Immigration (“Director”) respectively dated 28 February 2013 (in respect of the torture risk ground) and 10 October 2018 (in respect of the other three other grounds except the torture risk ground) (“Director’s Decisions”) rejecting the applicant's non-refoulement claim on all applicable grounds.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002208_2020_files/the_Board's_Decision.pdf

2.In the Form 86, the applicant named the adjudicator of the Board as the proposed respondent.  As the Board should have been the proper respondent, the Form 86 shall be amended accordingly on the court’s own motion.

3.The basis of the applicant’s claim was that due to the suspected involvement with the murder of an active member (Mr PF) of the United National Party (“UNP”), if refouled to Sri Lanka, he would be harmed or killed by:

(i)   Members of the UNP;

(ii)   The sons; and/or other supporters of Mr PF;

(iii)   Members of the Liberation Tigers of Tamil Ealam (“LTTE”);

(iv)   Gangsters and/or underworld figures connected to the UNP; and/or the sons of Mr PF; and

(v)   The Sri Lankan authorities, including the police.

4.The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them.  Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

5.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 18 December 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

6.The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1]  It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.  The Form 86 and the supporting contained no such grounds at all.

8.At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application.  The applicant said that he had nothing new to add.  He said that the Board rejected his appeal on the basis of the finding that he had never worked for the Sri Lankan Navy when the son was still searching for him.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the applicant was represented by a solicitor assigned by the Duty Lawyer Service, and gave evidence at the hearing before the Board.  The Board considered the applicant’s claims individually and cumulatively, as well as the applicant’s personal circumstances. After having assessed the various aspects of the applicant’s evidence, which included service in the Sri Lankan Navy; shooting of Mr PF, the applicant’s residence in Sri Lanka after the shooting; the applicant’s re-joining the Sri Lankan Navy; the applicant’s police officer brother, the LTTE, the applicant’s membership of SLFP, his conversion from his former religion as a Buddhist to Catholicism after marriage and the COI regarding failed asylum seekers returning to Sri Lanka, the Board found that the applicant would not face any real risk of harm from any of the applicant’s claimed sources of fear if refouled.  Although the Board accepted that the applicant had a genuine, subjective fear in the immediate aftermath of the shooting, the Board found that there were multiple inconsistences in the applicant’s evidence and that the applicant had exaggerated the nature and seriousness of the threats to him. The Board therefore concluded that it did not consider the applicant would face a real risk of harm from any claimed threats of harm. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors

10.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The Board gave a very detailed analysis of the multiple claims made by the applicant individually.  I am satisfied that the Board was entitled to reach the conclusion that the applicant would unlikely face risk of harm after having rejected all the claimed sources of fear. The applicant has not provided any written grounds in support of the Leave Application. The applicant’s alluding at the hearing to the Board’s rejection of his service with the Sri Lankan Navy is plainly incorrect.  In the Board’s Decision, the Board accepted the applicant’s past service in the Navy (Board’s Decision [62]), as well as his rejoining the Navy (Board’s Decision [73], [74] and [81]).  Pertinently, the Board found that the applicant’s evidence that he was able to re-join the Navy “using his own name and service number” was “something which weighs strongly against [the applicant’s] genuinely being considered responsible for the shooting”. In my view, the Board was entitled to make an adverse finding against the applicant on his re-joining of the Navy.  In the hearing, the applicant also mentioned the son was still searching for him.  I believe that the applicant was referring to the sons of Mr PF.  In relation to the claimed source of harm from the sons of Mr PF, the Board had dealt with the evidence and made findings (Board’s Decision [77], [82] and [83]).  In my view, the Board was entitled to reject the claim as having been exaggerated.  The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[4].

Orders

11.The Form 86 be amended on the court’s own motion.

12.The applicant’s application for leave to apply for judicial review be dismissed.

Dated the 12^th day of January 2026

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