Warnakulasooriya Jude Gayan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1315/2020

[2026] HKCFI 1428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1315 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 (Non-refoulement Claims) YW Hew:

1.  The Form 86 be amended on the Court’s own motion by naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, by naming only the Director of Immigration as the Putative Interested Party, and by adding “Decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office dated 12 June 2020” in relation to the field “Judgment, order, decision or other proceedings in respect of which relief is sought”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Sri Lanka.  By a Form 86 filed on 26 June 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 26 June 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review. He did not, in the Form 86, specifically identify the decision in relation to which leave was sought, although he had in both the Form 86 and the Affirmation the Applicant said that he was “not satisfied of the result rejected my case because until now I’m not safe to go back my country”, and had exhibited to Affirmation a decision of the Torture Claims Appeal Board (“TCAB”) / Non‑Refoulement Claims Petition Office (“NRCPO”) made on 12 June 2020 (“TCAB Decision”)[1].

2.The Applicant sought an oral hearing of his application and one was scheduled for and took place on 4 September 2025.  He confirmed that he sought leave in relation to the TCAB Decision.  He also made some other submissions, which I have set out below.

3.I have therefore amended the Form 86 on my own motion as above to reflect that leave is sought in relation to the TCAB Decision, and to reflect the identities of the proper Putative Respondent and Putative Interested Party.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein. 

Background

4.This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant claimed non-refoulement relief on the basis that if he were sent back to Sri Lanka, he would be harmed or killed by Krishnan and/or his family, including Desly, from the UNP;

(2)   The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director in the decision dated 28 March 2019 (“Director’s Decision”);

(3)   The Applicant appealed/petitioned to the TCAB/NRCPO, which held an oral hearing on 18 July 2019. The TCAB/NRCPO then issued the TCAB Decision dated 12 June 2020, in which the decision-maker found that none of the grounds of risk were made out, dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

7.In order for me to give leave to apply for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

8.The Form 86 and Affirmation merely state the Applicant is not satisfied with the result of rejection of his case as it is still unsafe for him to go back to his country.  However, such do not amount to any, and there is hence no, properly particularised allegation of procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.Nevertheless, given the seriousness of the issues at hand I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

10.The decision-maker set out the four relevant types of risk, the Applicant’s immigration and procedural history, the nature of the TCAB/NRCPO’s determination, and the general conduct of the hearing, before detailing the Applicant’s case (Paragraphs 1 to 18). The TCAB/NRCPO decided that Torture Risk was not made out on the evidence as the fear of being harmed was speculative and was unsupported by credible evidence, the dispute was a private feud, and state protection and internal relocation were available.  Persecution Risk and BOR3 Risk were also rejected on the evidence before the decision-maker, while BOR 2 Risk was rejected on the basis that the provisions did not relate to his case. Accordingly, the appeal/petition was dismissed and the Director’s Decision was confirmed (Paragraphs 19 to 44).

11.I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the conclusions in the TCAB Decision, or that would in any event justify the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding the evidence, credibility, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, and BOR 3 Risk.  While the TCAB/NRCPO appears to have taken too narrow a view of BOR 2 Risk, it is not reasonably arguable that it would have come to a different conclusion even if it had accepted that such could be engaged where the risk was posed by non-State actors and private persons, given that the Applicant had failed to establish BOR 3 Risk, the underlying findings relating to the risk of harm and state protection made in the TCAB Decision, and the lack of any public law basis to vitiate such.  I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

12.At the hearing, the Applicant claimed that that he could not go back to his country as he had a child who had just started school on 1 September, his wife would give birth next month, and as “They are waiting to kill me I have death threats in my country”.  He asked me to allow him to “stay here for some time until my problems are solved.  I can go back after that”.

13.I do not see how the Applicant’s alleged marriage and family circumstances are relevant, or constitute valid grounds in relation, to his own non-refoulement claim (Oguzie Ikechukwu Charles [2022] HKCA 135 at §20; Adeel Muhammad [2023] HKCA 948 at §§5, 7).  Given the findings in and nature of the TCAB Decision, and the nature of judicial review proceedings, I also do not see how his other bare allegations assist or are relevant to the present application.

14.I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success, or that there is any basis for the court to intervene by judicial review.

Conclusion

15.In the circumstances I have ordered that the application for leave to apply for judicial review be dismissed.

Dated the 13^th day of March 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