Pala Thanithrige Chandima Janadari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1549/2022

[2026] HKCFI 4201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1549 of 2022

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 to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 9 December 2022 of the Torture Claims Appeal Board (“the Board’s Decision), which dismissed her appeal against the Director’s Decision refusing her non-refoulement claim as mentioned below.

2.The applicant appeared before the Court on 8 July 2026.

3.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.

The applicant

4.The applicant is a national of Sri Lanka.  She is an illegal immigrant.  She lodged a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by a man called Mervyn Silva, a government minister who had raped her and told her not to return to Sri Lanka.

5.Details of her claim are set out in the Board’s Decision.  See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001549_2022_files/the_Board's_Decision.pdf

The Director’s Decisions

6.The Director considered the applicant’s claim 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”).

7.By way of Notice of Decisions dated 2 January 2014 and 20 March 2017 (“Director’s Decisions”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  On 18 February 2021, the Board conducted an oral hearing for her.  A duty lawyer acted for the applicant.  A government counsel acted for the Director.  The applicant had given evidence and answered the Board’s questions.

9.Having considered the evidence and the submissions from the respective legal representatives, the Board made the findings that the Board had doubts on her evidence.  It did not believe her evidence on the core facts of her claim and found that her claim about the matters were simply fabricated for the purpose of her claim.  As a result, the Board found that the applicant had failed to establish that she is known to Mervyn Silva at all and those claims were not made out, and her claim that Mervyn Silva posed any threat to her safety had not been established. [142]-[151]

10.For the above reasons, the Board dismissed her appeal and affirmed the Director’s Decisions.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 21 December 2022 for leave to apply for judicial review of the Board’s Decision.

12.In the affirmation in support of her application, the applicant said there are errors in the Board’s Decision and she required an oral hearing to explain to them in the hearing.

DISCUSSION

13.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 applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant submitted that the Board is wrong because it did not accept her evidence.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

16.The applicant’s reason to challenge the Board’s Decision is not valid because it is within the Board’s power to assess the evidence to determine what evidence is acceptable and what evidence is not. She has given no reason in support of her challenge that the Board’s decisions on her evidence was unreasonable or irrational.  Before the Board, she was represented by a duty lawyer.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 29^th day of July 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