Ratnam Wijaya v Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 529/2023

[2026] HKCFI 4358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 529 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Order by Deputy High Court Judge (Non-refoulement Claims) Isaac Chan:

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

Observations for the Applicant:

1.By a Form 86 filed on 3 April 2023 (“Form 86”), the applicant, a national of Sri Lanka, applied for leave to apply for judicial review against the decision of the Torture Claim Appeal Board / the Non-refoulement Claims Petition Office (“Board”) dated 6 January 2023 (“Board’s Decision”) [1] confirming the decision of the Director of Immigration (“Director”) dated 31 January 2022 and rejecting her non-refoulement claim.

2.I refer to the Board’s Decision for the background of the applicant, the basis of the claim, the evidence and the argument the applicant has relied upon, which will not be repeated herein.

3.The Court’s role in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Given the seriousness of the issue involved in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decisions of the Board. However, the Court will not intervene unless there are errors of law, procedural unfairness or irrationality in those decisions: see Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14.

4.General assertions without particulars cannot be effective grounds to support a judicial review: see Re Fabio Arlyn Timogan [2020] HKCA 971, at paragraph 23.

5.The present application for leave is meant to be a filtering process, and I am not expected to give elaborated reasons for my decision: see Re Zunariyah [2018] HKCA 14, at paragraph 23. I will therefore provide brief reasons for my decision as follows.

Discussion

6.The applicant has submitted four grounds for the intended application for judicial review:

6.1  The adjudicator wrongly considered that the applicant was not at risk. The adjudicator unreasonably drew this conclusion because the applicant had not been physically attacked or injured. The COI makes it clear that Tamils are at risk simply for being Tamils, the applicant is a member of this ethnic group. The adjudicator failed to consider that the applicant had been accused by neighbours of being a member of Liberation of Tamil Tiger Eelam (“LTTE”), so while not being a member of this group, she would be considered one by the authorities. (“1^st Intended Ground”)

6.2  The adjudicator failed to consider the element of mental suffering as a form of cruel, inhuman or degrading treatment or punishment under BOR 3 and Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”). The threats towards the applicant have caused great stress and distress. The adjudicator did not reasonably consider this. (“2^nd Intended Ground”)

6.3  COI indicates state acquiescence in political violence. Therefore, internal relocation and the assistance of authorities is likely to be of little avail to the applicant, and the adjudicator was unreasonable to find the otherwise. (“3^rd Intended Ground”)

6.4  The adjudicator was wrong to state there was no current risk to the applicant. The applicant has stated that the family of the "three Singhalese" will continue the persecution. The adjudicator failed to take this seriously in the context of Sri Lanka. (“4^th Intended Ground”)

7.At the hearing on 6 May 2026, the applicant confirmed that she did not have any submissions to supplement the documents filed in support of the application under the Form 86.

1^st Intended Ground

8.The applicant contends that the Board wrongly considered the applicant was not at risk because of the lack of physical attack or injury, whilst the COI suggested that Tamils, the ethnic group which the applicant belongs, are at risk simply because of such ethnicity in Sri Lanka, as well as the fact that the applicant had been accused by the neighbours of being a member of LTTE and the authorities would consider the applicant as one even though she was not.

9.The COI in fact does not support the assertion that the Tamils are at risk simply for being Tamils. On the contrary, the COI quoted in paragraphs 40 and 41 of the Board’s Decision suggests the opposite:

“2.4.2 Whilst Tamils may face official discrimination and harassment, in general this treatment is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm, based on their ethnicity alone.

……

2.1.1 Most sources noted that Tamils are not specifically targeted and do not suffer persecution just for being a Tamil but they do suffer discrimination along with other minorities.”

10.Also, the intended ground departs from the factual basis of the applicant’s non-refoulement claim. It is the applicant’s case that, since 1982, she had been pursued by three Sinhalese who were assigned to target her family as a retaliatory movement against the Tamils in light of the bombings and explosions conducted by LTTE, which was a separatist group (see paragraph 4 of the Board’s Decision). The applicant has made no claim that she had been or would be harmed by any other persons. Nor has the applicant asserted that, other than the detention for 21 days when the applicant was a teenager, the authorities had ever regarded her as a member of LTTE and caused any harm, ill treatments or persecutions against the applicant accordingly. In the applicant’s own evidence, she and her family were released upon the police’s finding that they were not LTTE supporter.

11.The 1^st Intended Ground is not arguable.

2^nd Intended Ground

12.The Board’s Decision, at paragraph 51, did identify intense mental suffering as a form of cruel, inhuman or degrading treatment or punishment for assessing the risks under BOR 3 and Part VIIC of the Ordinance. The Board did not disregard the applicant’s mental suffering for the relevant assessment. The Board held that the applicant had failed to established the relevant risk because the threat or torture the applicant feared was unrealistic and speculative (see paragraphs 45 to 47 and 52 of the Board’s Decision).

13.The 2^nd Intended Ground is therefore unarguable.

3^rd Intended Ground

14.The COI quoted in paragraphs 58 to 62 does not indicate a general state acquiescence of political violence. On the contrary, it suggests progress has been made since 2015 when a new government was elected.

15.Again, to approach the matter from the applicant’s case based on the three Singhalese, I see no merits in the contention that the Board’s conclusions regarding the availability of state protection and possibility of internal relocation were being unreasonable or irrational based on the principle set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.

4^th Intended Ground

16.The applicant has not provided any specific basis or evidence to assert that the family of the three Singhalese will continue the persecution against the applicant upon her return to Sri Lanka. The Board has assessed various factors and reached the conclusion that it was unrealistic and speculative (see paragraphs 45 to 46). Merely asserting that the Board had failed to consider such risk “in the context of Sri Lanka” is far from sufficient in suggesting that the Board was irrational or unreasonable in the Wednesbury sense.

17.The 4^th Intended Ground also has no merits.

18.I have considered the Board’s Decision in its entirety by applying the enhanced standard of scrutiny, I do not see any merits in the intended grounds for judicial review, or any errors of law, procedural unfairness or irrationality in the Board’s Decision.

19.The Board’s Decision has, with respect, correctly and comprehensively set out the applicable legal principles. I do not see any errors in either the summary or the application of those legal principles.

20.The Board’s Decision has also set out the procedural history of the applicant’s non-refoulement claim, including the details of the hearing before the Board on 22 October 2022 (see paragraphs 18-19 and 43 of the Board’s Decision). The applicant has not made any complaints of irregularities or unfairness in the entire process.

21.Based on the available materials, the conclusions of the Board were clearly justifiable. I do not see any basis to suggest that the Board was irrational or unreasonable in the Wednesbury sense.

22.I therefore dismiss the application for leave to apply for judicial review under the Form 86.

Dated the 4^th day of August 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