Case Document

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HCAL 1232/2024

[2026] HKCFI 4569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1232 OF 2024

BETWEEN

	Uthayasooriyan Pathmajothy	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 (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 March 2023 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Sri Lanka who arrived in Hong Kong on 22 February 2020 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 February 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 March 2020, she did not depart and instead overstayed, and some 6 months later on 8 September 2020 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Sri Lanka she would be harmed or killed by her husband over their marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Mundal, Puttlam District, Sri Lanka. After leaving school she married her husband as arranged by her family, and moved to his home district at Udaya Wasam, Kottel Kadu Sunnakam, Jaffna where they raised a family with their son.

3.However, in 2005 her husband started to indulge in taking drugs and alcohol that whenever he was drunk he would behave violently and abusively towards the Applicant by pushing and beating her around that caused her fear and distress, and by mid-2014 the Applicant found herself no longer able to tolerate her husband’s abuses that she moved with her son back to her parents’ home, whereupon her husband would come with his friends to demand their return, and threatened to kill the Applicant if she failed to do so.

4.As a result the Applicant became fearful for her safety and went into hiding, and in order to stay away from her husband and to make her living to support her son, the Applicant therefore made arrangement to leave Sri Lanka to come to Hong Kong to work as a foreign domestic helper, which she did in February 2020 when she arrived in Hong Kong to start her employment, but when her employment was subsequently terminated in March 2020, she was afraid to return to Sri Lanka and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 13 September 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her abusive husband upon her return to Sri Lanka as low due to the low intensity and frequency of past ill-treatment from her husband, that there is no evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats, that in any event it was a private domestic or marital dispute between her and her husband only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Sri Lanka with a large population of 23 million people spread across a vast territory of more than 65,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Colombo where it would be difficult if not impossible for her husband to locate her.

7.On 23 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 24 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of marital disputes with her husband but found that she had exaggerated such risk of harm arising therefrom or that there was any reliable evidence of any real intention of her husband to seriously harm or kill her other than angry words and empty threats, and that in any event it was a private domestic or marital dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Sri Lanka if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

9.On 30 July 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge.

10.By then the Applicant was also seriously out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for her to file her Form 86 fell on 3 June 2023, the Applicant was therefore more than 13 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of more than 13 months must be considered as extremely substantial and inordinate, for which she did not provide any reason or explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day of 3 March 2023 to the Applicant’s then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

13.As for the merits. If any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Sri Lanka, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.Moreover, the Applicant has recently on 14 July 2026 in writing requested to withdraw her application as her issues in her home country have been resolved that she now wants to return to Sri Lanka as soon as possible.

18.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more issue for her to return to her home country, I accordingly dismiss her leave application.

Dated the 21^st day of August 2026

(Joyce Ooi)
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 his 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 to the Applicant on 21 August 2026 Uthayasooriyan Pathmajothy Applicant’s ref. no.: Nil.		Sent 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 21 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18812 Director of Immigration Putative Respondent’s ref. no.: QA T/C 752/21 (Formerly RBCZ 10915/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)