Rajapakshage Tsuitha Udayangani Rajapaksha and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 882/2022

[2026] HKCFI 4508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 882 of 2022

BETWEEN

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 the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Levy:

1.	The title of the proceedings be amended in as follow:
	2nd applicant: Rankothge Binuthi Sasnuli Rankoth, suing by her mother and next friend, Rajapakshage Tsuitha Udanyangani Rajapaksha, the 1st applicant
	3rd applicant: Rajapakshage Rankothge Sayul Bimneth Rankoth, suing by his mother and next friend, Rajapakshage Tsuitha Udanyangani Rajapaksha, the 1st applicant
2.	The 1st, 2nd and 3rd applicants’ application for leave to apply for judicial review be dismissed.

Introduction

1.By A “notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 5 September 2022, the 1^st, 2^nd and 3^rd applicants applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 18 July 2022 (“Board’s Decision”) dismissing the appeals by the 1^st, 2^nd and 3^rd applicants against the decisions of the Director of Immigration (“Director”) respectively dated 27 July 2018 and 20 July 2021 respectively rejecting the 1^st and 2^nd applicants’ and the 3^rd applicant’s non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000882_2022_files/the_Board's_Decision.pdf

2.The 1^st applicant is the mother of the 2^nd and 3^rd applicants. The 2^nd applicant (a girl) was born in Sri Lanka, is now 14 years old. The 3^rd applicant (a boy) was born in Hong Kong, and is now almost 7 years old. The biological father of the 2^nd and 3^rd applicants is not the 1^st applicant’s husband, known as Dhammika (“Husband”). An application for judicial review by a child claimant should only proceed in accordance with the regime under O.80 r 2 of the Rules of the High Court with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend): see Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 at [57]. The applicants’ applications for legal aid were not successful.

3.At the request of the applicants for an oral hearing, the court scheduled a hearing on 23 July 2026 which were attended by all the applicants in person. Despite the non-compliance with the requirement stated in the preceding paragraph, this court would treat the non-compliance with the rule as a mere irregularity, and proceeded with the hearing: see Fabio (supra). However, the title of the proceedings should be amended as follows.

2nd applicant:	Rankothge Binuthi Sasnuli Rankoth, suing by her mother and next friend, Rajapakshage Tsuitha Udanyangani Rajapaksha, the 1st applicant
3rd applicant:	Rajapakshage Rankothge Sayul Bimneth Rankoth, suing by his mother and next friend, Rajapakshage Tsuitha Udanyangani Rajapaksha, the 1st applicant

4.All the previous filing shall deem to have been so amended.

5.The basis of the 3 applicants’ claims were that, if refouled to Sri Lanka, they would be harmed or killed by (i) Minster EG, a member of Parliament for the United National Party (“UNP”). Minster EG wanted to compel the Husband, who worked for Minister MS (member of Parliament and of the United People’s Freedom Alliance (“UPFA”), to give evidence against MS; and (ii) Minister MS due to the perceived or imputed perception of the knowledge of the Husband of Minister MS criminal activities and/or information prejudicial to Minister MS. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

Discussion

6.The leave application operates as a ‘filtering’ process. Hence there is no requirement or expectation to give elaborate reasons for my decision.[1] It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The Form 86 and the supporting affirmation provided no such grounds.

8.At the hearing, this court asked the 1^st applicant whether she had any grounds she wished to submit in support of the Leave Application in respect of herself and on behalf of the 2^nd and 3^rd applicants. All the 1^st applicant stated was that she/they had fear of going back to Sri Lanka. The 1^st applicant also stated that she could not take her children back home. The father of the 2^nd and 3^rd applicants are now applying for dependent visas to enable them to stay in Hong Kong.

9.As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]  In the present case, the applicants and the Director were both legally represented throughout before the Board. The Board found that the both the 1^st applicant and the 2^nd applicants had Sri Lanka nationality. As for the 3^rd applicant, who was born in Hong Kong to Sri Lanka parents, the Board determined his claims against Sri Lanka as the country of reference on the basis that it was the country against which the 1^st applicant, from whom the 3^rd applicant claims largely derived, has made claims. Despite some shortcomings in the 1^st applicant’s evidence, the Board accepted the 1^st applicant’s account as to past events. However, the Board found that the 1^st applicant would not be subjected to any future risks of harm from:

(i)  Minister MS. The Board considered that this claimed risk to have been entirely speculative. The Board found that it had not been claimed that there was in the past any threat levelled against the 1^st applicant, either directly or indirectly.

(ii)  Minister MG and his Associates. Based on the COI that showed that Minister MG was no longer an MP, and that Minster MS also lost his seat in 2015, the Board found that the political revilry between them would have lost its relevance, and also that any information which the Husband might have possessed would have been stale and of little use. Thus, the Board did not accept that Minister MG or his associates still wished to find the Husband or hold any adverse interest in the 1^st applicant.

(iii)  The police. The Board found that there was no evidence that the 1^st applicant was formally wanted by police. Given the fact that Minister MG had lost his seat, the Board did not find that it was not likely that he could influence the police to do his bidding by harming the 1^st applicant.

(iv)  Sexual assaults. The Board found that the one incident of sexual assaults by the bodyguards of Minister MG were opportunistic and spontaneous with the purpose of pressuring the 1^st applicant to reveal the Husband’s whereabouts. As it had been found that there was no long any adverse interest in the Husband, the Board therefore found that the 1^st applicant would not likely be subjected to harm of sexual assaults by these men. As for the threat of sexual assaults in Sri Lanka, the Board found that the 1^st applicant did not face any personal risk of such violence.

(v)  The family and local community as a single mother. Based on the COI, the Board found that some community welfare services would be available to assist the 1^st applicant. In any event, the Board found that there was no evidence that her family did not accept her because of having given birth to children out of wed-lock.

10.Concerning the specific risk to the 2^nd and 3^rd applicants, the Board was not satisfied that they would face, through the 1^st applicant, any derivative risk of harm claimed by the 1^st applicant discussed in the preceding paragraph. Having considered the 1^st applicant’s evidence that her sisters were generally supportive, the relevant COI that suggested the illegitimacy of a child did not have any bearing availability of education or health care facilities, and that the lack of personal risk of being subjected to children trafficking, the Board found that the 2^nd and 3^rd applicants would unlikely face any specific risks of harm if refouled to Sri Lanka.

11.After having assessed the applicants’ claims both individually and cumulatively, the Board was not satisfied that the applicants had established their claims, and therefore dismissed the appeals by the 1^st, 2^nd and 3^rd applicants. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

Regarding the 1^st applicant

12.Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. I am satisfied that the Board was entitled to reach the conclusion that the 1^st applicant would unlikely face risk of harm due to the change of the political scene in Sri Lanka. The 1^st applicant has not advanced any grounds, whether written or oral, in support of the Leave Application. The 1^st applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The 1st applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave.

Regarding the 2^nd and 3^rd applicants

13.At the time of the hearing before the Board, the 2^nd applicant and the 3^rd applicant were both legally represented. The Board had also separately considered the relevant risks each of them would face if they were refouled in accordance with the principles set out in Re Jasvir Singh [4], following Fabio Arlyn Timogan (supra.). Applying a high standard of fairness, the court, after having taken a rigorous examination with anxious scrutiny, is satisfied the Board had achieved high standards of fairness in dealing with claims of each of the 2^nd and 3^rd applicants in finding that they would not be subjected to the risks claimed through the 1^st applicant. This court is unable to find any underlying matters that may support minor-specific non-refoulement grounds which had not been advanced before the Board. The 1^st applicant had not advanced any grounds that their children would be subjected to any risks of harm specific to each of them. In the circumstances, their Leave Application should also be dismissed.

Order

14.The title of the proceedings be amended in accordance with [3] above on the court’s own motion.

15.The 1^st, 2^nd and 3^rd applicants’ application for leave to apply for judicial review be dismissed.

Dated the 14^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