Budgama Mudiyanselage S P Perera Alias Budgama Mudiyanselage Fathima Shibana Hilmy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2785/2025

[2026] HKCFI 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2785 of 2025

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:

Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, her son, aged 27 (“the son”). They are illegal immigrants.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 January 2025 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the mother.

3.The applicants did not ask for a hearing.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

5.The Board’s Decision is a re-assessment of the applicants’ case pursuant to a Court Order dated 23 December 2021 by this Court and by consent order dated 22 June 2022, by which the previous Board’s Decision was set aside and the matter was re-assessed by the Board of different constitution.

The applicants

6.The applicants are nationals of Sri Lanka.

7.The applicants lodged a non-refoulement claim, on the basis that, if refouled, they will be harmed or killed by the gangsters who extorted money from the mother and her husband who were running hotel business in Sri Lanka and religious discrimination.

8.Details of the facts are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002785_2025_files/the_Board's_Decision.pdf

The Director’s Decisions

9.The Director considered the applicants’ claims 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”).

10.By way of Notice of Decision dated 14 June 2016 and Notice of Further Decision dated 6 July 2017 (“the Director’s Decisions”), the Director assessed the applicants’ claims on all applicable grounds and dismissed their claims on all applicable risks because it was unsubstantiated.

The Board’s Decision

11.Pursuant to the consent order for the re-assessment of the applicants’ appeal, on 21 October 2025, the Board conducted an oral hearing for their appeals. The applicants and the Director were legally represented.

12.Having considered the evidence and the legal submissions, the Board made the findings that the alleged risks had diminished because the mother or the son has  no more business in Sri Lanka and the mother’s husband had passed away [117]; that state protection will be available [198]-[199]; and that internal relocation is viable [203].

13.For the reasons above, the Board dismissed their appeal and affirmed the Director’s Decision. 

Application for leave to apply for judicial review

14.The applicants filed Form 86 on 17 December 2025 for leave to apply for judicial review of the Board’s Decision.

15.In support of their application, the mother set out her personal history in Sri Lanka; how her family came to Hong Kong and stayed here; her husband was sick and passed away; of her 3 sons, 2 had got married in Hong Kong, leaving the third son in this application; and she was eager to migrate to Canada to live a new life there. However, she did not raise any reason to challenge the Board’s Decision.

DISCUSSION

16.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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.Paragraph 15 does not provide any reasonable ground to challenge the Board’s Decision.

19.The applicants therefore fail to show that there is any realistic prospect of success in their proposed judicial review.

DISPOSITION

20.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 28^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