Konara Mudiyanselage Palle Gedara Udeni Kumari v. Torture Claims Appeal Board
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HCAL 903/2023 [2026] HKCFI 5018 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 903 OF 2023 BETWEEN
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 9 June 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 29 May 2023 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 5 July 2022 (“the Director’s Decision”) failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 3.In Form 86, the applicant named “The Petition teams (Security Bureau) gave my disision at 29-MAY-2023” as the putative respondent, and “TORTURE CLAIMS APPEAL BOARD NON-REFOULEMEN CLAIMS PETITION OFFICE” as the putative interested party. 4.In fact, the Board should be named as the putative respondent, and the Director should be named as the putative interested party. 5.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative party at all. 6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”. 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 at risk of serious harm or death or other form of proscribed harm from her husband or her husband’s family due to her interest in Christianity. 9.The applicant claimed to be a devout Buddhist in Sri Lanka, and started going to church after she came to work in Hong Kong. She claimed that her husband and her husband’s elder sister threatened to kill her. Her husband also threatened her that she would never see her children again. 10.At the oral hearing before the Board, the applicant added that her husband suspected her of having an affair in Hong Kong, when in fact she was not. Oral hearing 11.The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 27 August 2026. 12.As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits. 13.Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court. Grounds for judicial review 14.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). 15.The applicant did not identify any ground for the intended judicial review in Form 86. In her supporting affirmation dated 9 June 2023, she merely mentioned that she still had problem in her country, she was unable to submit documentary proof in the past but she would try her best to submit proof before the oral hearing. Discussion 16.First of all, the applicant’s problem in her 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. 17.The applicant did not submit any further proof as stated in her supporting affirmation. Even if the applicant can submit documentary proof to further support her non-refoulement claim, it is not for this court to reconsider her case or to re-assess her claimed risks. 18.Thus, none of the matters raised by the applicant in her affirmation can amount to any valid ground to challenge the Board’s Decision. 19.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). 20.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 ground being advanced by the applicant for the intended judicial review. 21.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 27 March 2023. Thus, the applicant was given the opportunity to present her case to the Board in person. 22.As can be seen from the Board’s Decision, the Board had given a detailed analysis of the applicant’s claims and its reasoning in rejecting the applicant’s claim for non-refoulement protection. 23.The Board laid out its consideration of the applicant’s claims in paragraphs 89 to 111 of the Board’s Decision, and it is not necessary to repeat the same here. 24.In gist, in relation to the applicant’s risk from her husband and her husband’s family including his elder sister due to the applicant’s exploration of the Christian faith in Hong Kong, the Board accepted the applicant’s account generally. However, the Board found that the applicant was most concerned that she might lose access to, or custody of, her children if she separated permanently from her husband. The Board found that the applicant had made a choice that she would not pursue the Christian faith and that she had resumed her commitment to the Buddhist faith. The Board was also satisfied that the applicant’s mother had now informed the applicant that her husband was persuaded that the applicant was no longer pursuing the Christian faith and that she had returned to the Buddhist faith. 25.In respect of the feared harm from the applicant’s husband’s family, in particular her husband’s elder sister, the Board found no credible evidence to conclude that there was a real risk that her husband’s elder sister, or any other members of her husband’s family, had demonstrated a genuine intention to inflict harm of any kind on the applicant. The Board also found that harm of any kind from her husband’s family was all the less likely now that the applicant had abandoned her interest and following in the Christian church, and that she had returned to the Buddhist faith. 26.As to the applicant’s fear of her husband arising from his suspicion of her infidelity or affair in Hong Kong, while the Board accepted that applicant might have changed her looks, and while she might also be perceived by her husband as a disobedient wife, the Board found that the evidence before it did not provide substantial ground for concluding that because of these factors, or for any other factors, the applicant would face a real risk of serious or fatal harm by her husband if she returned to Sri Lanka now or in the reasonably foreseeable future. 27.Further, the Board found that the applicant’s optimism and expectation that her mother would solve the problem between her and her husband, and the applicant’s confidence that her husband would ask her to return to Sri Lanka once their daughter reached puberty, suggested that the applicant did not genuinely hold a fear of a real or imminent harm from her husband if she returned to the country. 28.The Board had also considered the applicant’s claim that her husband would be willing to go to prison in order to carry out the threats that he made. Based on the evidence before it, the Board did not accept such evidence suggested that the applicant’s husband was so motivated that he would seriously harm or kill the applicant and suffer the consequences. 29.Furthermore, the Board considered the country of origin information (“COI”) submitted by the applicant and those cited in the Director’s Decision. While the Board accepted that protection of Sri Lankan citizens, including women, might be imperfect, the Board found that in all the circumstances of the applicant’s case, she did not face a real risk of proscribed harm from her husband, or from her husband’s family. The Board therefore found that the applicant did not face a real risk of having to rely on the state protection authorities in Sri Lanka. 30.The Board also considered the applicant’s claim that her husband’s friends were politicians and that he helped his politician friends during election. Having regard to all the evidence, while the Board accepted that the applicant’s husband might have some association with persons involved in politics in Sri Lanka, the Board found the applicant’s claim vague and lacking in detail. The Board rejected the proposition that the applicant’s husband had significant influence, or could use his influence with politicians to cause proscribed harm to the applicant if she was returned to Sri Lanka. 31.Thus, the Board concluded that the applicant did not face a real risk of harm of any kind at the hands of her husband, or her husband’s family members, if she returned to Sri Lanka. The applicant was therefore not in need of non-refoulement protection. 32.The Board did not consider availability of state protection and viability of internal relocation. However, as the Board found the applicant faced no real risk in her country, it is therefore not necessary for the Board to consider availability of state protection. 33.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). 34.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm at the hands of her husband or her husband’s family members, it is not necessary for the Board to consider internal relocation. 35.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. 36.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 error 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. 37.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 38.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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 |
Cases cited in this judgment