Panawalage Sriyalatha v. Torture Claims Appeal Board

HCAL 1579/2021

[2026] HKCFI 3066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1579 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

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

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 17 November 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 12 October 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001579_2021_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection was not substantiated on any of the applicable grounds (except Torture Risk[1]) under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the decision of the Director of Immigration (“the Director”) dated 10 September 2018, which rejected the applicant’s non-refoulement claim on the grounds of BOR 2 Risk[2], BOR 3 Risk[3] and Persecution Risk[4].

3.The applicant had previously made a CAT claim[5] in 2007 and her CAT claim was refused by the Director on 29 November 2013. Her appeal against the Director’s said decision was refused by the Board on 4 June 2014.

4.Thus, the applicant’s Torture Risk had been finally determined, and it is not necessary for the Board to re-assess the same in the Board’s Decision.

Amendments

5.The applicant named “Torture Claims Appeal” as the putative respondent and herself as the putative interested party in Form 86.

6.In fact, the Board should be named as the putative respondent and the Director should be named as the putative interested party.

7.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

8.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.

9.In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she feared she would be killed by Mr S, the brother of the applicant’s late husband. The applicant claimed that Mr S was a notorious criminal wanted by the police. However, Mr S was a good friend of Mr L, who was a district councilor and minister for the Sri Lankan Freedom Party, and later became a member of parliament. The applicant also claimed that her late husband was arrested and tortured by the police in 1993 because he did not comply with the demands of the police to produce Mr S. She believed that her husband’s death was due to the injuries he suffered from the police torture. Around 2 months after her husband’s death, the applicant’s cousin helped her to report Mr S’s whereabouts to the police and Mr S was subsequently arrested and imprisoned for 3 years. The applicant claimed that Mr S blamed her for his arrest and threatened to kill her.

Disposal on paper

10.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

11.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).

12.The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 17 November 2021. She merely stated in the affirmation that she was not satisfied with the decision made.

Discussion

13.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 [2018] HKCA 524).

14.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.

15.In assessing the applicant’s petition, the Board held an oral hearing on 27 May 2020. The applicant’s petition was heard previously by another member of the Board on 18 March 2019 but that member was unable to complete his determination. The member of the Board who made the Board’s Decision had had regard to all of the first hearing material, including the same hearing bundle and had listened to an electronic recording of the first hearing. The applicant was present at both hearings and thus was given the opportunity to present her case to the Board in person.

16.The Board had laid out its findings and assessment on the applicant’s claim in paragraphs 39 to 45 of the Board’s Decision, and it is not necessary to repeat the same here.

17.In gist, the Board accepted for the purpose of the decision the applicant’s claims as stated, including that (1) the applicant assisted the police to arrest Mr S; (2) the arrest led to Mr S’s imprisonment for 3 years; (3) Mr S was angry at the applicant for her role in his arrest; (4) Mr S made the first threat against the applicant, after which she ran away unharmed and never saw Mr S again; (5) Mr S made the second threat at the applicant’s family house, but the applicant’s mother prevented him from harming her; and (6) the applicant moved around Sri Lanka between 1997 and 2006 and that she came to Hong Kong in fear of harm from Mr S.

18.However, the Board considered the applicant’s claims regarding the death of her husband was an exaggeration. The applicant had also exaggerated her claims that Mr S was connected to a politician Mr L. The Board did not accept the applicant’s claim in the Notice of Appeal/Petition that she was unable to work in Sri Lanka. The Board also did not accept the applicant’s claims that Mr S would be able to locate her anywhere in Sri Lanka because she must register her residence with the grama niladhri. The Board considered these were unsupported assertions of the applicant, made in an unsuccessful attempt to heighten the chance of risk to her.

19.The Board found that given (1) the considerable passage of time since Mr S was released from prison in 1997; (2) all Mr S had ever done since his release was make verbal threats, and most often only when his rationality was affected by alcohol; and (3) the applicant was able to remain living in Sri Lanka, unharmed and undetected by Mr S for around 9 years after Mr S was released from prison, there was only a remote or speculative risk that the applicant would face any proscribed harm from Mr S if she was refouled to Sri Lanka.

20.The Board had considered the claims of the applicant individually and cumulatively, as well as considered the personal circumstances of the applicant. On the credible evidence before it, the Board did not consider the applicant faced a real risk of any of the proscribed harm from Mr S upon refoulment and hence found the applicant’s claim for non-refoulement protection as not substantiated.

21.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found that there was no real risk of any proscribed harm to the applicant, it is therefore not necessary for the Board to consider the availability of state protection.

22.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

23.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

24.The finding of facts relating to a non-refoulement claim, including the assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s appeal/petition. This court finds nothing wrong or unreasonable in the way the Board reached its decision.

25.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.

26.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

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 27^th day of May 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