Hatharasing Gamage Kanthi v. Torture Claims Appeal Board
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HCAL 1195/2023 [2026] HKCFI 4414 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1195 OF 2023
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The Leave Application 1.By way of Form 86 dated and filed on 14 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
2.The Torture Claims Appeal Board (“the Board”) made a decision dated 6 July 2023 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 November 2022 (“the Director’s Decision”). At the oral hearing before this court on 23 July 2026, the applicant confirmed that the Board’s Decision was the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:- 3.The Board found that the applicant was unable to make out her claims for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Thus, the Board rejected the applicant’s appeal/petition against the Director’s Decision and confirmed the same, which rejected her non-refoulement claim. Amendments 4.In Form 86, the applicant named “The Petition team (Security Bureau) test my case and gave me the decision at 06-JULY-2023” as the putative respondent, and “TORTURE CLAIMS APPEAL BOARD, NON-REFOULEMENT CLAIMS PETITION OFFICE” as the putative interested party. 5.As the Board’s Decision is the subject matter of the Leave Application, the Board should be named as the putative respondent and the Director should be named as the putative interested party. 6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration” and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 6 July 2023”. The applicant’s case 7.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. 8.In sum, the applicant claimed for non-refoulement protection because if refouled to Sri Lanka, she would be harmed, ill-treated and/or killed by her husband. She claimed that she lived in fear of her husband because of his past abusive conduct towards her and she did not send him money when he demanded it from her. Oral hearing 9.The applicant requested for an oral hearing of the Leave Application and her case was heard on 23 July 2026. 10.When this court asked the applicant for the grounds of her intended judicial review, she said that her main problem was that she had threats from her husband, who was a drunkard and belonged to an underworld gang. He had drug problem and had committed murder. If he did not have money, he would ask her for it. If she went back home, her husband would hurt her. She had submitted her medical report to the Board to show that her husband had hurt, cut and burnt her. 11.The applicant added that she lost her mother last year on 4 January 2025 and hence she had no place to stay. Her husband had taken another woman and they were living together. Her husband broke her second son’s leg because he wanted to get money from her second son who refused to do so. Her second son then moved out to live with a friend. She believed that her second son would take care of her if he was able to find a job, but it would take another year for him to find a job. 12.Thus, the applicant wanted to stay in Hong Kong for one more year. She said that she could not work because her left thumb had a cut and could not move, and her joint was swollen. Hence, she could not earn money to support herself and to finance medicine. She could not live in another place in Sri Lanka, as she did not have money and could not earn money. Grounds for judicial review 13.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). 14.In Form 86, the applicant mentioned that she was not satisfied with the Board’s Decision because she still had problem in her country. 15.In her supporting affirmation dated 14 July 2023, the applicant stated that she was not satisfied with the Board’s Decision because she could not live in other places in Sri Lanka, and she would explain why it was not possible for her to do so when she appeared at an oral hearing. 16.At the oral hearing, the applicant explained why she could not live in another place in Sri Lanka as mentioned above. Discussion 17.First of all, the applicant’s danger in her home 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. 18.What she raised at the oral hearing included many new allegations, such as she lost her mother in 2025 and hence she had no place to stay, her husband had broken her second son’s leg and the son was living with his friend, her second son would take care of her if he was able to find a job, but it would take another year for him to find a job, she could not work because her left thumb had a cut and could not move, and her joint was swollen, and she could not earn money to support herself and to finance medicine. 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 fact, the allegations concerning her injuries raised to this court at the oral hearing contradicted her case before the Director and the Board. According to paragraph 6.45 of the Director’s Decision, the applicant only produced some photographs showing the injuries caused by her husband at her left cheek and left upper eye lid. The Board expressly mentioned in paragraph 39(3) of the Board’s Decision that no medical reports had been produced by the applicant and there was no evidence that the severity of her injuries reached the requisite high threshold. Thus, there was no mentioning or any proof about the alleged injuries at her left thumb and swollen joint. 22.The applicant challenged the Board’s finding regarding the viability of internal relocation for her in her supporting affirmation and at the oral hearing before this court. She said that it was impossible for her to relocate as her second son, who would support her had left home to live with a friend, would need one year to find a job, she did not have money and she could not work because of the alleged injury at her left thumb. 23.However, this court notes from paragraphs 80 to 88 of the Board’s Decision that the Board actually found that the applicant could not make out her case for protection on any of the applicable grounds under the USM and hence it was strictly not necessary to deal with the question of internal relocation. The Board only did so as a matter of caution in case its assessment of the applicant’s risk was held to be wrong. The Board then gave full reasons for its finding that the applicant could relocate to say, Negombo or Batticaloa, without undue hardship. 24.This court finds the reasons given by the Board fully justified. 25.In the circumstances, what the applicant stated in her Form 86 and her supporting affirmation, as well as what she told this court at the oral hearing, cannot amount to any valid ground to challenge the Board’s Decision. 26.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). 27.Thus, the applicant cannot ask this court to reconsider her non-refoulement claim. 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. 28.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 12 May 2023. The applicant was present and was given the chance to present her case to the Board in person. 29.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 35 to 40 of the Board’s Decision its consideration of the applicant’s claimed past events, her future risk and why the Board was not persuaded that there was a real risk the applicant would be subjected to serious harm or death at the hands of her husband, if she was refouled to Sri Lanka. 30.In gist, the Board accepted the basic facts spoken by the applicant, namely that her husband had threatened her in the past and the applicant subjectively feared further harm (or worse) from him should she be refouled to Sri Lanka. However, the Board found no, or no reliable evidence to show (and the Board did not accept) that:-
31.Further, the Board found that the applicant’s husband was a non-state actor. The issue of state acquiescence or failure of due diligence did not arise in the circumstances of the applicant’s case. She was not targeted in the past on account of any Convention reasons but on account of domestic matters. The applicant was never subjected to abuse at the levels of torture or CIDTP[2]. 32.As to state protection, the Board had gone through the applicant’s evidence and also extensive country of origin information (“COI”). The Board found the applicant’s bare criticism that the police were corrupt unsupported by the applicant’s personal experience or knowledge, and it was only speculative that the police would not help her. There were other avenues where she could seek assistance too. Thus, the Board concluded that state protection was available to the applicant. 33.Moreover, given the applicant’s concerns that she might not find work due to the economic situation in the country, the Board found that there were various organisations which could help her with, inter alia, work prospects as well as “income generating projects”. 34.The Board had also considered the applicant’s claim that she faced a lack of work prospects because she would not be able to obtain proper medical treatment in Sri Lanka. The Board found that free healthcare continued to be available in Sri Lanka. Even if the applicant were slowed by her injuries (of which there was no evidence), and even if she were facing difficulty in being treated for minor injuries due to the current country situation, the Board found that the applicant could still be afforded medical treatment for free, if required. 35.As aforementioned, the Board had assessed the viability of internal relocation for the applicant as a matter of caution, and found that the applicant could relocate within Sri Lanka without undue hardship. The Board was not persuaded that the applicant’s husband would follow her around the country to locate and harm or kill her. 36.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. 37.The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board in dealing with the applicant’s 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. 38.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. 39.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 40.For reasons aforesaid, the Leave Application is dismissed. Dated the 5th 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
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Cases cited in this judgment