Hewapadi Gedara Nishantha Rohana Kumara Hewage v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1076/2021 on BabelCite. This High Court CFI judgment was delivered on 22 April 2026.
1. By way of Form 86 dated and filed on 29 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
Cites 4 cases
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HCAL 1076/2021 [2026] HKCFI 2272 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1076 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 29 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:- “The Petition teams (Security Bureau) gave unfare dicision at 25-mAy-2021” 2.The Torture Claims Appeal Board (“the Board”) made a decision dated 25 May 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against two decisions of the Director of Immigration (“the Director”), which rejected the applicant’s claims for non-refoulement protection in Hong Kong. At the oral hearing before this court on 26 March 2026, the applicant confirmed that the Board’s Decision was the subject matter of the Leave Application. 3.The first decision of the Director was dated 28 November 2013 (“the Director’s 2013 Decision”), which rejected the applicant’s torture claim made on 10 July 2006. Although the applicant had filed an appeal against the Director’s 2013 Decision to the Board on 12 December 2013, the applicant applied for an adjournment of his appeal on 3 March 2014 and his application for adjournment was allowed by the Board on 17 April 2014. 4.The second decision of the Director was dated 8 January 2019 (“the Director’s 2019 Decision”), which rejected the applicant’s non-refoulement claim made by way of a letter from the applicant’s then legal representative dated 27 January 2013. As the applicant’s torture claim had been dealt with by the Director’s 2013 Decision, the Director only dealt with the applicant’s non-refoulement claim based on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3] under the Unified Screening Mechanism (“the USM”) in the Director’s 2019 Decision. The applicant petitioned against the Director’s 2019 Decision to the Board on 22 January 2019. 5.Since the applicant’s previous appeal in respect of his torture claim had not been determined by the Board, the applicant’s Torture Risk[4] was re-assessed by the Board in the Board’s Decision together with the other three applicable grounds under the USM mentioned above. 6.Hence, the Board’s Decision encompassed the applicant’s appeal/petition against both the Director’s 2013 Decision and the Director’s 2019 Decision (collectively “the Director’s Decisions”) regarding all the applicable grounds, namely Torture Risk, BOR 2 Risk, BOR 3 Risk and Persecution Risk, under the USM. 7.The Board’s Decision can be viewed in the following hyperlink:- 8.The Board found that the applicant had not made out a case for non-refoulement protection on all the applicable grounds under the USM. Thus, the Board dismissed the applicant’s appeal/petition against the Director’s Decisions, which rejected the applicant’s non-refoulement claim. Amendments 9.In Form 86, the applicant named “The Petition teams (Security Bureau) gave the dicision at 25-mAy 2021” as the putative respondent and “TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative interested party. 10.In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party. 11.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all. 12.As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision. 13.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration”, and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 25 May 2021”. The applicant’s case 14.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above. 15.In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he would be harmed or killed by supporters of the People’s Alliance Party (“PAP”) and/or supporters/bodyguards of Tikiri Kobbekaduwa (“TK”) due to political dispute. Oral hearing 16.The applicant requested for an oral hearing and his case was heard on 26 March 2026. 17.The applicant had attached some supporting documents to his supporting affirmation dated 29 July 2021. When this court asked the applicant to explain his intention for the submission of those documents, the applicant said that those documents were to show that he and his father were assaulted and injured. 18.Nevertheless, the applicant confirmed that those documents had all been presented to the Board. He only added that there was a piece of new evidence, which was a photograph of the applicant himself. He said that someone had shown his photograph to some other people and those people would kill him upon his return to his country. The applicant also said that he actually wanted to return to live happily with his parents, but his life was still in danger and hence he could not do so. 19.When this court asked the applicant for the grounds of his intended judicial review, the applicant replied that the Board told him to stay in other places in Sri Lanka, but he could not because Sri Lanka is a small island, and as he had been tortured, his head and shoulder were not working properly. Grounds for judicial review 20.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016). 21.In Form 86, the applicant stated that he was not satisfied with the decision because he still had life problem and his life would be in danger if he went back to his country. He also mentioned that he was applying for legal assistance but he was not given any help. 22.Similarly, the applicant asserted in his supporting affirmation dated 29 July 2021 that he was not satisfied with the decision because he had already given all the supporting documents for his claims, but the Board disregarded all of them including his verbal evidence. 23.As aforesaid, at the oral hearing, the applicant only wanted to submit a photograph of himself to show that someone had shown his photograph to other people and he would be in danger if he returned to his country. He also challenged the Board’s conclusion on the viability of internal relocation. Discussion 24.First of all, the applicant’s assertion at the oral hearing that someone had shown his photograph to other people was not presented to the Board for assessment. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090 that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage. 25.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 26.Thus, the applicant cannot rely on matters not raised before the Board as a ground for his intended judicial review, such as his allegation concerning the photograph. This court will not take on the role of the primary decision-makers and re-assess his non-refoulement claim. 27.The applicant’s case, including his alleged danger and whether he could relocate internally, had been duly assessed but rejected by the Board. If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 28.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration, supra). 29.Thus, despite the fact that the applicant did not advance any valid ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid. 30.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 October 2020. The applicant was present and was represented by a duty lawyer. Thus, the applicant was given the chance to present his case to the Board through his legal representative. 31.As can be seen from the Board’s Decision, the Board had carefully analyzed and considered the applicant’s claims and all the evidence. The Board laid out in paragraphs 23 and 24 of the Board’s Decision its full reasons for finding that the applicant had not made out a case for non-refoulement protection. 32.In gist, the Board considered that the applicant’s case was a gross exaggeration. The Board found it improbable that the applicant only suffered the claimed injuries if he were indeed attacked by tens of armed enemies in both the first and the second attacks. 33.Significantly, the Board had considered the current situation of Sri Lanka and the risk the applicant was facing at the time of the Board’s assessment. At the time of the Board’s Decision, PAP was no longer in power and the party which the applicant supported was the current ruling party. The Board found that the last attack on the applicant happened in 2000, about 20 years before the Board’s hearing. The applicant last left the country in 2004 and he did not perform any more work for the party he supported since he arrived in Hong Kong. The Board found that with the lapse of time, it was unlikely that the applicant would face any of the proscribed forms of harm from TK, who was no longer influential, or from members of PAP. 34.In any event, the Board also found that no severe pain or suffering within the definition of torture under section 37U(1) of the Immigration Ordinance had ever been inflicted upon the applicant. TK and members of PAP were not government officials. The 2 police officers who allegedly assaulted the applicant did not act with the consent or approval of the police force. The applicant’s fear of ill-treatment did not fall within the definition of persecution in that it was purely a private dispute between him, TK and members of PAP. 35.Moreover, the Board found that state protection was available to the applicant upon his return to Sri Lanka. 36.As to internal relocation, the Board had considered the applicant’s personal circumstances and considered that with the lapse of time since he departed the country, it was unlikely that anyone would still have any interest in him. As aforesaid, PAP was no longer in power and it was unlikely that people from PAP still had the power and interest to locate the applicant throughout the whole country. The Board found that it was not unduly harsh for the applicant, being an able-bodied mature male with 12 years of education, to relocate to other parts of Sri Lanka in order to avoid people from PAP in his native village. 37.Thus, the Board concluded that the applicant had not made out a case for non-refoulement on any of the available grounds under the USM. 38.The finding of facts, including the assessment of evidence, country of origin information and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 39.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 40.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused. Conclusion 41.For reasons aforesaid, the Leave Application is dismissed.
Dated the 22nd day of April 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
[1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] 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] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
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Cases cited in this judgment
Further hearings and rulings under HCAL 1076/2021