Kariyawasam Nanayakkara Patabendi v. Torture Claims Appeal Board

HCAL 852/2023

[2026] HKCFI 3608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 852 OF 2023

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 in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, 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 1 June 2023, 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 23 May 2023 (“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/2023/HCAL000852_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 25 November 2022 and confirmed the same, which rejected his non-refoulement claim.

Amendment

3.In Form 86, the applicant named the Board as both the putative respondent and the putative interested party.

4.In fact, the Board should only be the putative respondent and the Director should be the putative interested party.

5.Thus, on this court’s own motion, the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

6.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.

7.In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, he would be at a genuine and substantial risk of being tortured, ill-treated and persecuted by a politician named Niroshan Padukka and his subordinates, as well as his paternal uncle’s political enemies, due to a political dispute.

Oral hearing

8.The applicant requested for an oral hearing and his case was heard on 18 June 2026.

9.When this court asked the applicant for his grounds of the intended judicial review, he merely replied that he could not go back to Sri Lanka because he was working for the Sri Lankan government and had received death threat in Sri Lanka. However, he could not explain what was wrong with the Board’s Decision. He just asked this court to consider his case as he had left his children and the government employment to come to Hong Kong.

Grounds for judicial review

10.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).

11.The applicant did not identify any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 1 June 2023.

12.What the applicant said at the oral hearing could not amount to any valid ground to challenge the Board’s Decision either.

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, the applicant cannot ask this court to reconsider this non-refoulement claims. However, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid, despite the fact that the applicant did not advance any valid ground for the intended judicial review.

15.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 April 2023. The applicant was present and was given the chance to present his case to the Board in person.

16.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 105 to 113 of the Board’s Decision its assessment of the applicant’s claimed past events, his future risk and why the Board was not persuaded that there was a real risk the applicant would be subjected to serious harm or ill-treatment of any sort, if he was refouled to Sri Lanka.

17.In gist, the Board found that the applicant only experienced one incident of political violence and the injuries he sustained as a result was not serious. The Board considered that incidents of similar nature were common during election campaigns in Sri Lanka, and the violence generally used by the rival parties in such incidents did not reach the high degree of intensity or severity required to establish a claim for non-refoulement protection.

18.Moreover, the Board found that the applicant’s involvement in assisting his uncle during election campaigns was on a purely personal and family-related basis. The applicant had no political affiliation and took no active part in local or national politics. Taking the applicant’s evidence as a whole, the Board considered that the applicant’s past experiences were of such a minor nature that the Board was not satisfied that the applicant was at a real risk of any of the proscribed forms of harm upon refoulement.

19.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.

20.The Board did not consider availability of state protection to the applicant. However, as the Board found that the applicant did not face a real risk of the proscribed harm if the applicant was refouled to Sri Lanka, it is not necessary for the Board to consider the availability of state protection.

21.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 he 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 his home area (see Gardi v SSHD [2002] 1 WLR 2755).

22.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.

23.The finding of facts, including the assessment of evidence 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.

24.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.

25.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

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

Dated the 24^th day of June 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