Case Document

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HCAL 807/2023

[2026] HKCFI 4398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 807 OF 2023

BETWEEN
	Elle Gedara Ranjani Kusum Kumari	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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, “Director of Immigration” be added as the putative interested party.

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 24 May 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 19 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/HCAL000807_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”). Accordingly, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 17 October 2022, which rejected her non-refoulement claim.

Amendment

3.The applicant did not name any putative interested party in Form 86, when the Director should be so named.

4.Thus, this court makes an order on its own motion to add “Director of Immigration” as the putative interested party.

The applicant’s case

5.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.

6.In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be harmed or killed by her ex-boyfriend Sisira, whom she claimed to be the head of a drug dealing criminal gang, as she refused to sell drugs for him.

Oral hearing

7.The applicant requested for an oral hearing of the Leave Application and her case was heard on 23 July 2026.

8.The applicant confirmed that she would rely on the grounds stated in her supporting affirmation dated 24 May 2023 for her intended judicial review. When this court asked the applicant to elaborate on the said grounds, she replied that she could not go back to her country because her ex-boyfriend belonged to an underground gang and she still had threats from him.

9.She added that she could not go to live in another place because the underground gang had influence in many areas in Sri Lanka, they could easily find her, and recently they came to her mum’s place to enquire about her.

10.She further claimed that one of her ex-boyfriend’s friends told her that a lady like her was killed recently and told her not to go back. Nevertheless, the applicant confirmed that this information was not presented to the Board for assessment.

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.In paragraphs 5(a) to (d) of the applicant’s supporting affirmation, the applicant mentioned that:-

(1)  She was a genuine claimant who faced all these dangerous problems, harassment and torture in her country;

(2)  The Director reached the wrong decision in assessing her claim;

(3)  If she did not run away, she certainly would have been killed by her enemies. Her problems were getting more and more life-threatening day after day.

(4)  She understood nothing about what was written in the decision as she did not speak or read any Chinese so it was impossible for her to prepare any grounds for the Leave Application. She asked to be allowed to have one more hearing with all English and Indonesian documents.

13.As aforesaid, the applicant did not elaborate on any of the grounds stated in the said affirmation at the oral hearing, and only said those matters mentioned above.

Discussion

14.First of all, the applicant’s danger in her own country had been duly assessed but rejected by the Board. If she intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. Thus, Grounds (1) and (3) as summarised above, as well as what she said at the oral hearing before this court about her danger from her ex-boyfriend, cannot be valid grounds to challenge the Board’s Decision.

15.Ground (2) as summarised above was advanced against the Director only. As the Leave Application concerns only the Board’s Decision, which had in fact superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549), this paragraph can simply be ignored.

16.Ground (4) as summarised above is simply unrelated to the applicant’s case. The Board’s Decision was written in English, not Chinese. Further, the applicant is a Sri Lankan and there is absolutely no reason for her to request another hearing with all English and Indonesian documents.

17.Thus, none of the grounds that were contained in the applicant’s supporting affirmation could establish any valid ground to challenge the Board’s Decision.

18.The new claims that the applicant made at the oral hearing, namely that the underground gang came recently to her mum’s place to enquire about her and a lady was killed, were not presented to the Board for assessment.

19.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.

20.Thus, the applicant cannot rely on matters not raised before the Board as her grounds for judicial review. This court will not take on the role of the primary decision-makers and re-assess her non-refoulement claim.

21.In the circumstances, what the applicant told this court at the oral hearing cannot amount to any valid ground to challenge the Board’s Decision either.

22.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).

23.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

24.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 20 April 2023 and the applicant was present. Thus, the applicant was given the opportunity to present her case to the Board in person.

25.As can be seen from paragraphs 27 to 39 of the Board’s Decision, the Board found that the applicant’s claims were simply not credible. The Board found her claims to be extremely vague and lacking in detail. Her lack of knowledge about the ex-boyfriend she claimed to fear raised serious doubts as to the veracity of her assertion that she faced serious harm or death should she return to Sri Lanka because of her refusal to sell drugs for him in August 2016 as she had claimed.

26.The Board placed particular weight on the applicant’s inability to offer any cogent reason as to why a serious drug dealer such as her ex-boyfriend would be looking for her some seven years after she left his house, given the short period of their acquaintance and her own evidence that he was not interested in her other than to sell his drugs. The Board also placed considerable weight on her failure to raise a claim for almost 5 years and on the fact that she only did so after being arrested by the police as an overstayer.

27.Furthermore, the Board found that the applicant’s claims about her ex-boyfriend’s alleged triad links and the kidnapping of her brother in April 2023 had been fabricated for the purposes of her claim.

28.The Board therefore found that the applicant had not established that there were substantial grounds to support the conclusion that she would face a real risk of ill-treatment as claimed if she returned to Sri Lanka.

29.Although the Board did not consider state protection and internal relocation, it was unnecessary to make findings on the availability of state protection as the Board found the applicant was not at a real risk of any of the proscribed forms of harm.

30.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).

31.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.

32.The finding of facts, including assessment of evidence and risk of harm, was solely within the ambit of the Board in dealing with her appeal/petition. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

33.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.

34.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

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

Dated the 5^th day of August 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or the applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 05/08/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 05/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 21086 Director of Immigration Putative interested party’s ref. no.: QA T/C 903/22 (formerly RBCZ 5000786/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)